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2009
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[2009] ZAGPPHC 21
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S v Masango (A166/08) [2009] ZAGPPHC 21 (3 April 2009)
I
N THE HIGH
COURT OF SOUTH AFRICA
(NORTH GAUTENG, PRETORIA)
NOT REPORTABLE
Case No:
A166/08 Date heard: 02/04/2009
Date of judgment:
03/04/2009
In the matter between:
ELIAS TLHALEFO MASANGO
APPELLANT
and
THE STATE
RESPONDENT
JUD
GMENT
DU PLESSIS J:
The appellant appeared in the regional court on a charge of fraud to
which he pleaded guilty. He was duly convicted and sentenced
to five
years
imprisonment of which three years were suspended on appropriate
conditions. With the leave of the trial court, the appellant now
appeals against the sentence.
On behalf of the State, Ms Mahomed filed an
application for the sentence of the appellant to be increased. The
basis of the application
was that the offence of which the appellant
was convicted resorts under section 51(2)(a) read with Part II of
Schedule A to the
Criminal Law Amendment
Act, 105 of 1997
(“the Act”)
and therefore is subject to a minimum prescribed sentence. In her
judgment on sentence, having heard full
argument on the question, the
learned magistrate made a pertinent finding that the Act does not
apply. The State did not appeal
against that finding. In the
circumstances Ms Mahomed conceded, correctly in my view, that the
applicability of the Act is
res judicata
and that we must approach the appeal on the footing that the
magistrate correctly held that the Act does not apply. Apart from
the initial contention that the Act applies, the State did not on any
other ground contend that the sentence must be increased.
When he committed the crime the appellant was
employed by the
National Department of
Forestry and Water Affairs as an administrative clerk. It was his
function to prepare the necessary documentation
in order for the
department to make payment of moneys owing to deceased ex-employees
of the department. The appellant fraudulently
used a friend’s
banking details and by that means procured that approximately R103
000 owing to deceased ex-employees was
paid into the friend’s
banking account. This the appellant did in collaboration with the
friend, their common purpose having
been to misappropriate the money.
Of
th
e R103 000 all but an
amount of approximately R17 000 was recovered. Of the R17 000 the
appellant appropriated approximately R9000.
It is not in issue that
he did not use that for himself, but mainly financially to support
his extended family and to pay for
a family funeral.
The appellant was 26 years old when he committed
the crime and when he was convicted and sentenced. He is a first
offender. While
he was working, the appellant supported members of
his extended family, his minor child and the latter’s mother,
with whom
he lived although they were not married. The mother of the
child also worked. The evidence shows that the appellant will almost
definitely lose his employment as a result of the offence.
When his employment is terminated, his pension contributions will
paid out to him.
I have pointed out that the appellant pleaded
guilty. To that must be added that he instructed his lawyers from
the outset that
he wanted to plead guilty and to make a full
disclosure. Having regard the appellant’s statement in terms
of
section 112(2)
of the
Criminal
Procedure Act, 51 of 1977
the latter is
what the appellant did. The appellant also offered that the money
that he received out the fraud may be deducted
from his pension when
that is paid out to him.
At the request of the trial court, reports by a probation officer and
by a correctional supervision officer were obtained. Both
these
reports recommended that a sentence of correctional supervision be
imposed. From the report of the
probation officer, it is apparent that the appellant did not have a
particularly happy childhood. Despite financial difficulties,
he
managed to matriculate. He embarked on a tertiary education course,
but had to abandon it for financial reasons. As a general
proposition, the two reports show that, apart from the transgression
under consideration, the appellant has led a stable life with
his
little family and has shouldered his family responsibilities.
For the appellant Mr Badenhorst submitted that the
sentencing court did not have due regard to the paramount interests
of the appellant’s
minor child as is required by section 28(2)
of the
Constitution of the Republic of
South Africa, 1996
(See in this regard
S v M (Centre for Child Law as
amicus
curiae
)
[2007] ZACC 18
;
2007 (2) SACR 539
(CC)
).
I shall deal with this argument in the broader context of the
appellant’s and society’s interests in a stable family.
For the appellant it was also submitted that the
learned magistrate did not have due regard to the
principles
of restorative justice. Apart from the fact that that was not one of
the grounds of appeal, the learned magistrate in
my view did have due
and proper regard to the question of repayment by the appellant of
the money in question. The complainant
being a government
department, restoration in another form is not applicable and we were
not referred to any such other form of
restoration.
The sentence cannot be described as shockingly inappropriate. The
appellant’s counsel submitted, however, that the learned
magistrate did not have
due regard to the interaction between the short
term imprisonment on the one hand and the
destructive
effect it will have on the appellant and his family.
The crime is doubtless serious and, looking at that alone, a
custodial sentence is no doubt appropriate. The court must of course
also have regard to the interests of the appellant and those of
society. As to the latter, society has an interest in crime being
properly and duly punished. Society, however, also has an interest
in preserving, if possible and appropriate, a family unit with
a
child. Society further has an interest in rehabilitating, if
possible, in stead of destroying one of its members.
In my view counsel correctly pointed out that in the case of this
particular appellant, imprisonment will probably destroy him
and his
family. While the deterrent and retributive effects of imprisonment,
including short term imprisonment, cannot be under
estimated, a court
must always weigh that against the interests of an accused person and
of society not to destroy an accused person
who is showing signs of
rehabilitation. I have made reference to the personal circumstances
of the appellant. His actions since
the charge had been brought
against him evinces on his part an understanding of what he has done
wrong and of remorse. In brief,
the appellant has started on the way
to rehabilitation. In addition he is caring for his family and even
a short term of imprisonment
will destroy the family. In this
particular case the deterrent and retributive value of a short term
sentence of imprisonment
does not warrant the destruction of the
appellant and his family.
The probation officer and the correctional
supervision officer were of the view that the appellant is a suitable
candidate for correctional
supervision.
Moreover,
a properly structured correctional supervision regime will adequately
punish the crime. In my view the learned magistrate
erred in not
imposing such a sentence in stead of short term imprisonment.
This court is not in a position to impose correctional supervision,
especially as we do not have before the necessary information
to
structure a community service regime that we regard as essential.
In the result the following order is made:
The
appeal succeeds.
The sentence is set aside.
The matter is remitted to the trail court for it, on evidence that
the parties may place before it, to formulate and impose a
sentence
of correctional supervision.
B.R. du Plessis
Judge of the High Court
I agree,
S. Sapire
Acting Judge of the High Court
On behalf of appellant: Pretoria Justice Centre
6
th
Floor Van der Stel Building
179 Pretorius Street
Pretoria
0002
Adv. C.H. Badenhorst
On behalf of Respondent: Director of Public Prosecutions
Transvaal
28 Church Square
Pretoria
0001
Adv. S. Mahomed