Bezuidenhout v S [2009] ZAFSHC 16 (12 February 2009)

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[2009] ZAFSHC 16
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Bezuidenhout v S [2009] ZAFSHC 16 (12 February 2009)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal No.: A73/2008
In the case between:
ANNA CATHARINE
BEZUIDENHOUT
Appellant
and
THE STATE
Respondent
_____________________________________________________
CORAM:
VAN
ZYL, J
et
MOLOI, AJ
_____________________________________________________
JUDGMENT:
MOLOI, AJ
_____________________________________________________
DELIVERED ON:
12 FEBRUARY 2009
_____________________________________________________
[1]
This
matter came before us on appeal against the sentence of two (2) years
imprisonment of which one (1) year imprisonment was suspended
for a
period of five (5) years conditionally imposed by the magistrate on a
charge of fraud. The appellant was granted leave to
appeal by the
trial magistrate and was released on bail of R1 000,00 pending the
outcome of the appeal.
[2] The
appellant had pleaded guilty to the charge of fraud and admitted all
the allegations against her in a statement submitted
in terms of
section 112(2) of the Criminal Procedure Act No. 51 of 1977 (“the
CPA”). She admitted having submitted to her
insurance company a
false claim of loss of her gold and diamond ring valued in the amount
of R12 999,00 in a robbery. During the
investigation of the claim by
the company and upon confrontation by the insurance company’s
investigator before payment of the
amount claimed was made to her,
she admitted the falsity of her claim.
[3] As
reasons for her conduct the appellant stated that she was out of cash
at the time; she was expecting a child; she was unemployed;
she was
sick and feared she would loose the child she was expecting because
of the complications she had with the pregnancy and
had no medical
aid fund to cover her costs in a private hospital or clinic. She had
not considered seeking assistance from a public
medical facility
available. At the time of the commission of the offence the
appellant was 23 years of age, she and her husband
were staying with
her parents, she had one other child and the one she was expecting
was six months old at the time of her sentencing.
She had nobody
else but her mother to look after the children if she was sentenced
to a term of imprisonment and it was undesirable
to impose such a
sentence on her in the interests of the children. She could afford
to pay an amount of only R2 000,00 if a fine
was imposed.
[5] A
probation officer who investigated the appellant’s circumstances
had recommended the imposition of a suspended sentence
in terms of
the provisions of section 297(1)(b) of the CPA on condition that the
appellant underwent life skills programme for
a period of eight (8)
weeks. Both the prosecutor and the defence agreed that the
appropriate sentence would be a suspended sentence.
The magistrate
disagreed and found the sentence he imposed eventually to be the
appropriate sentence.
[6] The appellant had a
previous conviction of theft for which she was sentenced on 10 March
2005 to a period of four (4) years
imprisonment in terms of the
provisions of section 276(1)(i) of the CPA. After serving only six
(6) months of the sentence, she
was released and placed under
correctional supervision for the remainder of her direct imprisonment
term. Just over a year of
her release and on 7 August 2006 and while
under correctional supervision, she committed the offence for which
she was sentenced
in this appeal. Though the appellant stated she
had remorse for the commission of the offence, she insisted she was
not guilty
of the offence for which she was convicted in 2005 and for
which she was sentenced to direct imprisonment for a period of four
(4) years.
[7] Emphasis was placed
on the remorse the appellant expressed in her statement in terms of
section 112(2) of the CPA and repeated
in argument regarding
mitigation of sentence by pleading guilty. The magistrate was
correct in stating that a plea of guilty is
not necessarily a sign,
let alone an expression, of remorse. The use of the word ‘remorse’
alone is not indicative of that
feeling of guilt which is regretted
about something wrong done or not done. In many cases the word is
abused as a mitigating factor
without much ado. In this case the
plea of guilty and the use of the word remorse in the statement in
terms of section 112(2)
of the CPA followed upon the
confrontation
of the appellant by the insurance investigator. For the appellant to
wait until she was
confronted
before she became clean about the fraud is not lending itself
convincingly to a manifestation of the feeling of remorse. Her
insistence of her innocence in the matter she had already been
convicted of and sentenced does not advance her claim of remorse

either.
[8] No fault can be found
with the magistrate’s approach to the sentence imposed. He
considered the appellant’s personal circumstances
sufficiently, he
considered and dealt with the seriousness of the offence in great
detail and he dealt with the interests of the
community
comprehensibly. The magistrate considered the various options of
sentencing available in pursuit of the objectives of
sentencing in a
balanced manner. The fact that he went so far as to suspend half of
the sentence imposed also illustrates the
element of mercy he blended
his punishment with in view of the appellant having previously been
sentenced to direct custodial sentence
of four years. The balanced
effect of the magistrate’s consideration and his approach to the
sentencing discretion of the appellant
is borne out further by the
attitude of the appellant’s counsel on appeal who conceded no fault
could be found with the magistrate’s
approach and made no adverse
submissions.
[9] It is trite that the
sentencing function lies squarely within the discretion of the trial
court. See
R
v MAPHUMULO AND OTHERS
1920 AD 56
;
S
v RABIE
1975 (4) SA 855
(A);
S
v BARNARD
2004 (1) SACR 191
(SCA). The court of appeal can only interfere
where the discretion was not exercised judicially and properly or
where the sentence
is out of proportion to the offence committed and
inordinately harsh. In
S
v BARNARD,
supra
,
at 194 C – D Mlambo, AJA stated as follows:
“
A court sitting on appeal on
sentence should always guard against eroding the trial court’s
discretion in this regard, and should
interfere only where the
discretion was not exercised judicially and properly. A misdirection
that would justify interference
by an appeal court should not be
trivial but should be of such nature, degree or seriousness that it
shows that the court did not
exercise its discretion at all or
exercised it improperly or unreasonably.”
[10] In this matter there
can be no talk of the trial court’s injudicious or improper
exercise of the sentencing discretion let
alone a misdirection in
assessing the appropriateness of the sentence imposed.
[11] As a consequence the
following order is made:
The appeal is dismissed.
_
______________

K. J. MOLOI, AJ
I concur.
____________________
C. VAN ZYL, J
On
behalf of appellant: Adv. S. J. Reinders
On
behalf of:
Hill, McHardy &
Herbst
BLOEMFONTEIN
On behalf of
respondent: Adv. S. Chalale
On behalf of:
Die Direkteur:
Openbare Vervolgings
BLOEMFONTEIN
/EM