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[2014] ZAGPPHC 167
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Phahane v S (A565/2011) [2014] ZAGPPHC 167 (3 April 2014)
REPUBLIC
OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT
PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: A565/2011
DATE:
3 APRIL 2014
REPORTABLE
OF
INTEREST TO OTHER PEOPLE
In
the matter between:
P.M
PHAHANE
…………………………………………………………
.
APPELLANT
AND
THE
STATE
……………………………………………………………
RESPONDENT
JUDGMENT
BAQWA
J; BAM J
[1]
The appellant was
charged on one count of fraud in the District Court Benoni. She was
found guilty and sentenced to serve a term
of two (2) years
imprisonment.
[2]
She was granted
leave to appeal against both conviction and sentence by the trial
court.
[3]
The approach of the
court on appeal is summarised in the case of
S
v Hadebe and Others 1997(2) SACR 641 (SCA) at 645 e-f
where
the following was stated:
"In
the absence of a demonstrable and material misdirection by the trial
court, its findings of fact are presumed to be correct
and will only
be disregarded if the recorded evidence shows them to be clearly
wrong. ”
[4]
The background of this case
is briefly as follows:
The
charge against the appellant was that on 21 December 2010 at Benoni
she had falsely and with intent to defraud pretended to
Nedbank that
she was Vusimuzi Nkosi and that she was entitled to draw the sum of
R1,200-00 from Vusimuzi Nkosi’s account.
She did this whilst
knowing that she was not the person entitled to make a withdrawal
from Nkosi’s account.
[5]
It is common cause that
complainant, Vusimuzi Nkosi, bought an item from Pep Stores on the
date in question and that on that occasion
he was attended to by the
appellant.
[6]
It is also not in dispute
that the complainant used a credit card to effect the purchase at the
store. Thereafter complainant reported
that appellant had not
returned his card.
[7]
The evidence presented by
the State through the complainant, the appellant’s store
manager and the area manager of Pep Stores
Benoni, which included
video footage of the area in which appellant worked confirms that
complainant’s card had remained
with the appellant. It was
during that period that complainant parted with his credit card after
making the purchase that the withdrawal
was made from his bank
account.
[8]
The video footage from the
store showed the appellant placing the credit card under the till and
thereafter leaving the store for
a short while without informing the
supervisor about her movements. After connecting the various pieces
of evidence, the trial
court concluded that the appellant was guilty
as charged.
[9]
The appellant raised
several grounds of appeal namely:
9.1.
The State failed to prove
the element of misrepresentation due to the fact that appellant
allegedly withdrew money from the ATM
and not from Nedbank.
9.2.
The learned Magistrate
improperly introduced new evidence in the form of a Nedbank statement
as part of the State case.
9.3.
The trial Magistrate failed
to apply the cautionary rule against the evidence of Christina Mtwati
who was a co-employee of the appellant
at Pep Stores.
9.4.
That the video footage
introduced into the record by Christina Mtwati constituted hearsay
and was inadmissible.
9.5.
That the trial Magistrate
erred in admitting a previous consistent statement of the appellant
relating to an admission by the appellant
that she had taken
complainant’s card. The admission had been made after appellant
viewed the video footage.
[10]
Respondent submits and I
accept that the answer to appellant’s first ground of appeal is
to be found in the judgment of Stegman
(J) S v Van den Berg
1991(1)SACR 104(T) at 106 when he stated as follows:
"From
the answers given by the accused to the Magistrate’s questions,
it would appear to be that she unlawfully credited
a particular
account in Santam bank with an amount of R800 when the account
was
not entitled to
such credit. This was in my view, a misrepresentation to the bank,
and the fact that the misrepresentation was introduced
into the
computer system electronically differs not to one which the clerk
who, with the intention to deceive, makes a false entry
with a pen
into a ledger account. The account has been falsely credited and in
this instance the computer system
was
the means by
which such an entry was made and consequently it is a
misrepresentation even though no specific person other than Santam
Bank per se was mentioned in the charge sheet, I do not think it
matters. Apart from the fact that Santam Bank is a legal person,
the
provisions of section 103 of Act 51 of 1977 would, it seems to me,
make it necessary to refer to a specific person being defrauded.”
In
casu
the ATM was
the means utilised to commit the fraud.
[11]
Regarding the bank
statement, the issue was introduced during cross examination of the
complainant by appellant’s counsel.
The court merely exercised
its discretion in terms of section 167 of Act
51 Ot 1977
by asking
the witness whether he would be able to bring a bank statement which
would reflect the amount which seemed to be in dispute.
The statement
was accordingly received to clarify issues after the cross
examination of the complainant by appellant’s counsel.
[12]
Regarding the evidence of
Christinah Mtwati, she was a co-employee of the appellant. She
testified that she had a good relationship
with appellant prior to
the incident in question. She had played no role in the dismissal of
the appellant from Pep Stores and
there was accordingly no reason for
the court to apply the cautionary rule against her.
[13]
Regarding the video
recording which was introduced as part of the evidence, the court
merely sounded a cautionary note to the prosecutor,
that what the
witness was told by Mr De Bruin about the video recording would be
hearsay and inadmissible. There is accordingly
nothing wrong in a
court enquiring from a prosecutor whether a particular witness would
be called or not.
Christina
Mtwati testified about what she saw in the video when it was shown to
her and the appellant by De Bruin. De Bruin was
called in to testify
about what he saw on the video footage. His evidence was direct and
original. There was no evidence that the
video footage had been
interfered with and the recording was faithful and was not shown to
be a depiction of any other rendition
other than what it showed. In
my view therefore if complied with the requirements set out by the
Honourable Justice Milne JP in
S v Ramgobin and Others 1986(4) SA
117(N).
[14]
Regarding the issue of the
previous consistent statement made by the appellant it appeared to be
a statement made by the appellant
prior to the court hearing. De
Bruin testified concerning the admission made by the appellant
regarding the taking of complainant’s
card after she was shown
the video. The admission was shown to have been made freely and
voluntarily by the appellant. It was accordingly
not irregularly
introduced as part of state evidence.
[15]
Reference to the dictum of
Malan JA in
R v
Mlambo 1957(4) SA 727 (A) at 738A
is
appropriate:
‘
'In
my opinion, there is no obligation upon the crown to close every
avenue of escape which may be said to be open to the accused.
It is
sufficient of the crown to produce evidence by means of which such a
high degree of probability is raised that the ordinary
reasonable
man
,
after
mature consideration, comes to the conclusion that there exists no
reasonable doubt that an accused has committed the crime
charged
.
He must
,
in other words, be
morally certain of the guilt of the accused.
”
Upon
weighing the evidence produced by the state in the court a quo, the
only reference that could be drawn from the facts is that
the
appellant is the person who made the withdrawals from Nkosi’s
account without his consent.
Re:
Sentence
[16]
Regarding sentence, the
powers of an appeal court to interfere were aptly described in the
case of S v Petkar 1998(2) All SA 550(A)
at 551 as follows:
‘
This
court’s powers to interfere with a sentence on appeal are
circumscribed. It may only do so if the sentence is vitiated
by (1)
irregularity, (2) misdirection, or (3) is one which no reasonable
court could have come, in other words, one where there
is a striking
disparity between the sentence imposed and that which this court
considers appropriate. ”
[17]
Whilst the crime committed
by the appellant was aggravated by her abuse of a position of trust,
where the public had to rely on
her to conduct business with them
with honesty and integrity, I consider that the court a quo ought to
have put more weight on
the appellant’s personal circumstances:
At
the time of arrest, appellant was 36 years old, no previous
convictions were proved against her. She could therefore not be said
to be a person who had a propensity to commit crime. She has two
children aged 19 and 10 years old respectively. When she was
sentenced on 1 June 2011 she was unemployed.
[18]
In the result I propose that the following order be made.
18.1.
The appeal against
conviction is dismissed.
18.2.
The appeal against sentence
is allowed. The sentence handed down by the District Court Benoni is
amended and substituted with the
following:
The
appellant is sentenced to a term of two(2) years imprisonment 12
months of which is suspended for five(5) years on condition
that she
is not found guilty of a similar offence during the period of
suspension.
S.A.M
BAQWA
(JUDGE
OF THE HIGH COURT)
A.J
BAM
(JUDGE
OF THE HIGH COURT)