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[2014] ZAFSHC 192
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L v S (A18/2014) [2014] ZAFSHC 192 (30 October 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A18/2014
In
the appeal between:
M[…]
S[…] L[…]
…..................................................................................................................
Appellant
and
THE
STATE
…........................................................................................................................
Respondent
CORAM:
DAFFUE, J
et
MURRAY, AJ
JUDGMENT
BY:
DAFFUE, J
HEARD
ON:
20 OCTOBER 2014
DELIVERED
ON:
30 OCTOBER 2014
[1]
On 5 June 2013 appellant was convicted of fraud by the magistrate of
Viljoenskroon and sentenced the same day to 3 (three) years’
imprisonment.
[2]
Appellant pleaded guilty to fourteen counts of fraud committed over a
period of seven and a half months involving a total amount
of
R13 000.00.
[3]
The court
a quo
granted appellant leave to appeal against her
sentence of direct imprisonment.
[4]
The following appear from the record:
4.1
Appellant pleaded guilty and a section 112(2) statement was prepared
on her behalf, signed by her and handed in to the court
a quo
.
Therein she admitted liability and she was duly convicted.
4.2
She was the branch manager of the post office in Viljoenskroon when
the offences were committed.
4.3
She prepared fourteen withdrawal notices without the knowledge and
consent of one J[…] C[…], the guardian of M[…]
C[…], during the period from 3 February 2012 to 20 September
2012 and in doing so, pretended to be J[…] C[…].
M[…] C[…] was a client of the post bank and held an
account with this institution from which the funds were withdrawn.
4.4
All counts were taken together for purposes of sentence and appellant
was sentenced to 3 (three) years’ imprisonment.
4.5
At the time of conviction and sentence appellant was thirty four
years old, unmarried and the mother of a sixteen year old child.
At the time she was the prime caregiver of the child and also cared
for her mother and her niece. She was employed at the
post
office for thirteen years, but was dismissed as a consequence of her
actions. She was still unemployed when she was
sentenced.
4.6
The attorney appearing for appellant in the court
a quo
did
not deem it necessary to lead any evidence pertaining to the
circumstances at appellant’s home at the time, bearing in
mind
that she was unemployed. He did not request a pre-sentence
report from a probation officer to determine whether appellant
was in
fact the prime caregiver of her child and, more in particular, to
ascertain the child’s best interests and more importantly,
the
plight of the child should the mother be incarcerated. The
court
a quo
also failed to heed the guidelines formulated by
the Constitutional Court in
S v M
[2007] ZACC 18
;
2007 (2) SACR 539
(CC) at paragraph
[36]
to which I shall refer
infra
.
4.7
Appellant is not a first offender. On 26 May 2010 she was
convicted of fraud committed on 5 January 2009 and sentenced
to
R12 000.00 or thirty months’ imprisonment of which
R8 000.00 or twenty months’ imprisonment was suspended
for
five years on condition that she is not convicted of theft or fraud
committed during the period of suspension.
4.8
The court
a quo
tabulated the mitigating and aggravating
circumstances and concluded that appellant had a chance to
rehabilitate, but that she
did not grab the opportunity afforded to
her and instead committed the present offences notwithstanding a
suspended sentence hanging
over her head.
[5]
Mr Lencoe, who appeared for the State, submitted that an accused
should not be allowed to abuse and undermine the criminal justice
system by continuing to commit crimes in the hope that she will
escape a custodial sentence by using the welfare of her minor child
as an excuse. He submitted that a non-custodial sentence runs
the risk of making a mockery of the criminal justice system
and
eroding the public confidence in the system. Finally he
submitted that the appeal should be dismissed.
[6]
Mr Vertue, who appeared for the appellant, conceded that direct
imprisonment would in any other circumstances be a fair and
just
sentence. However,
in casu
the court
a quo
failed
to consider the interests of appellant’s child and did not make
any enquiries as to the plight of the child in the
event of
appellant’s imprisonment. He relied on section 28 of the
Constitution in support of his argument. He
finally submitted
that the appeal should succeed and that the sentence to be imposed
must allow appellant to care for her child.
[7]
I requested from Mr Vertue details in respect of the child and he
informed us from the Bar that the child was busy writing his
final
Grade 12 examinations. He stated that his attorney had informed
him that the child will be turning seventeen in December
2014.
This appears to be wrong. Not only was it placed on record in
June 2013 in the court
a quo
that the child was sixteen by
then, but it is nowadays unheard of that children finish their Grade
12 year at the age of sixteen.
The probabilities are that the
child will be turning eighteen, but the order that I intend to make
will cater for the interests
of appellant’s child on the
assumption that he is still a minor and will remain a minor in the
foreseeable future.
[8]
The appellant was in a position of trust. She unlawfully
withdrew funds to which a minor or disabled person was entitled.
The amounts involved are not huge, but the consequences of the losses
suffered by the account holder might be tremendous.
The
community must be protected against abuse of this kind. One
certainly regards one’s bank manager or post master
as a person
of integrity and does not expect such a person to steal money out of
one’s account.
[9]
The Supreme Court of Appeal has come out strongly in favour of
stricter sentences for white collar crimes and I quote the following
from
S v Sadler
2000 (1) SACR 331
(SCA) at 335g –
336b paras [11] and [12]:
“
[11]
… So called 'white-collar' crime has, I regret to have to say,
often been visited in South African courts with penalties
which are
calculated to make the game seem worth the candle. Justifications
often advanced for such inadequate penalties are the
classification
of 'white-collar' crime as non-violent crime and its perpetrators
(where they are first offenders) as not
truly being 'criminals' or
'prison material' by reason of their often ostensibly respectable
histories and backgrounds. Empty generalisations
of that kind are of
no help in assessing appropriate sentences for 'white-collar' crime.
Their premise is that prison is only a
place for those who commit
crimes of violence and that it is not a place for people from
'respectable' backgrounds even if their
dishonesty has caused
substantial loss, was resorted to for no other reason than
self-enrichment, and entailed gross breaches of
trust.
[12]
These are heresies. Nothing will be gained by lending credence to
them. Quite the contrary. The impression that crime of that
kind is
not regarded by the courts as seriously beyond the pale and will
probably not be visited with rigorous punishment will
be fostered and
more will be tempted to indulge in it.”
[10]
Section 28(2) of our Constitution stipulates that a child’s
best interests are of paramount importance in every matter
concerning
the child. This is echoed in section 9 of the Children’s
Act, 38 of 2005. In normal circumstances
and especially in the
event of infants or young children I would have upheld the appeal and
referred the matter back to the court
a quo
to comply with the
guidelines set out by the Constitutional Court in
S v M
(
supra
). Clearly our sentencing courts must adhere to
these guidelines in order to give due respect to our Constitution and
the
rights of children in particular. The appeal record speaks
for itself. The court
a quo
did not apply its mind to
whether it would be necessary to take steps to ensure that the child
would be adequately cared for while
his caregiver is incarcerated.
However a referral to the court
a quo
would be impracticable
in casu
. The appellant is out on bail and would have
been in a position to care for her child since the imposition of
sentence in
June 2013 until now. If the matter is remitted to the
court
a quo
it will be heard during 2015 only. By then
the child would have finished his schooling and most probably would
have become
a major.
[11]
It was submitted on behalf of appellant in the court
a quo
as
follows:
“
Sy
is die alleen broodwinner in die huis. Sy sorg vir haarself,
haar ma, haar kind en vir haar niggie.”
Even
if appellant’s mother does not contribute financially towards
the upbringing of the child, she stays in the same house
and, there
being no evidence to the contrary, will probably be able to care for
the child in his mother’s absence.
[12]
In
MS v S
2011 (2) SACR 88
(CC) the majority dismissed
an appeal of a 33-year old mother with two young children of eight
and five years old respectively
who was not totally responsible for
their care. As was done in that case – see paragraphs
[66] to [68] – it seems
that I should order the National
Commissioner of Correctional Services to ensure that a social worker
visits the child regularly
and that he/she provides the relevant
Department with reports on his well-being during his mother’s
absence and only until
he reaches the age of eighteen. This
will mitigate the possibility of the child enduring hardship during
his mother’s
absence.
[13]
For these reasons the appeal should fail.
[14]
The following order is made:
1.
The appeal against sentence is dismissed.
2.
The National Commissioner for Correctional
Services is directed to ensure that a social worker in the employ of
the Department of
Correctional Services visits the child of the
appellant, M[…] S[…] L[…], at least once every
month during
her incarceration, only until he reaches the age of
eighteen, and submits reports to the Office of the National
Commissioner as
to whether the child is in need of care and
protection as envisaged in section 150 of the Children’s Act,
38 of 2005 and,
if so, to take the steps required by that provision.
______________
J.
P. DAFFUE, J
I
concur.
______________
H.
MURRAY, AJ
On
behalf of appellant: Adv L.P. Vertue
Instructed
by:
Rossouws
Attorneys
BLOEMFONTEIN
On
behalf of respondent: Adv M. Lencoe
Instructed
by:
Office
of the Director of Public Prosecutions
BLOEMFONTEIN