About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2008
>>
[2008] ZAWCHC 130
|
|
Mouton v S (A179/2006) [2008] ZAWCHC 130 (1 February 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
A179/2006
DATE
:
1
FEBRUARY 2008
In the matter between:
KARIN
MOUTON
Appellant
and
THE
STATE
Respondent
JUDGMENT
BOZALEK,
J:
[1]
The appellant was convicted on 1 September 2004 on a charge of fraud
in the Clanwilliam Magistrate's Court and sentenced to
two years'
imprisonment in terms of section 276{1)(i) of the Criminal Procedure
Act. With the leave of the magistrate she now appeals
against both
her conviction and sentence.
[2]
At the relevant time the appellant was employed as a teller at First
National Bank in Clanwilliam. She pleaded not guilty to
the charge
that on six separate occasions between 16 and 25 July 2001 she
falsely represented to the bank that a bank customer,
one M J
Waldeck, had made withdrawals from his account in various amounting
totalling R9 700, whereas in truth it was not Waldeck
who had made
the withdrawals but herself. In passing, it is not clear why the
appellant was charged with one count of fraud incorporating
the six
separate withdrawals, whereas what was in fact being dealt with were
six separate counts of fraud. Be that as it may, this
formulation of
the charge did not prejudice the accused, in fact the opposite was
the case.
[3]
For the State, the compfainant Waldeck and a bank official, one
Harlow, testified. The appellant also testified and admitted
virtually the entire factual content of the State's case. It is
common cause that:
The
appellant opened a savings account for the complainant who was
literate and provided a specimen signature.
When
making a withdrawal, such accounts are operated by the customer
tendering his or her savings book to the teller, signing
a
withdrawal slip and, in appropriate circumstances, tendering proof
of identity. In the case of the six withdrawals in question
the
complainant had neither made the withdrawals nor signed any of the
withdrawal slips. Instead, on each occasion the withdrawal
slips had
been signed by the making of a mark, an "X".
[4] The
appellant had noted in writing on each withdrawal slip that she had
verified the signature (in fact the mark) of the person
making the
withdrawal and, moreover, that the person making the withdrawal was
known to her. In each case however the appellant
had not verified the
mark of the withdrawer which ordinarily requires the teller to
personally compare the customer's signature
with his or her specimen
signature, or have this attended to by someone at the enquiry desk.
Nor in each case had the withdrawer
been known to the appellant. The
appellant had also not obtained management's authorisation for any of
the withdrawals.
[5] The
manner in which the appellant had dealt with each withdrawal had been
contrary to established bank procedures and not in
accordance with
her training on a teller's course which she had
successfully passed
In
convicting the appellant, the magistrate accepted the State's
evidence and, on the basfs of circumstantial evidence, concluded
that
the only inference which could be drawn from the proven facts was
that she had herself compEeted the withdrawal forms and
pocketed the
proceeds of the withdrawals, thereby defrauding the bank.
[6]
On appeal it was contended on behalf of the appellant that the
magistrate had erred in finding that the aforesaid inference
was the
only reasonable one which could be drawn from the proven facts and
further that the State had proved only negligence on
the part of the
appellant, with the result that she should have been acquitted on the
charge.
[7]
The magistrate gave a comprehensive and reasoned judgment. He
recognised that tn order to convict the appellant upon the basis
of
circumstantial evidence, not only had that inference to be in
accordance with all the proven facts, but that all other reasonable
inferences were excluded. He correctly approached the matter
furthermore on the basis that if the appellant's version was
reasonably
possibly true, even though he might have considered it to
be false, the appellant was entitled to the benefit of the doubt.
[8]
Having regard to the proven facts set out above, I can find no fault
with the magistrate's conclusion that these are congruent
with the
appellant having completed the withdrawal forms herself, with
fraudulent intent.
[9]
Furthermore, I am in agreement with the magistrate's conclusion that
this is the only reasonable inference which may be drawn
from the
proven facts. In the first place it is highly unlikely that a bank
teller would expose herself on six separate occasions
to the risk of
disbursing relatively large sums of money to a stranger who produces
neither a bank book nor proof of his identity
or without, at the very
least, verifying his signature or having this done at the enquiries
desk. The only explanation which the
appellant could give in this
regard was that she was trying to be helpful and avoid a long queue
and that this was how things were
done in the bank. I fail to see how
checking a signature or a customer's identity would cause long queues
and even less so if this
was done by the enquiry counter staff. The
appellant's claim that the manner in which she dealt with the
withdrawals was how it
was customarily done at the bank, not only
runs counter to the evidence of the bank official, Harlow, but is
highly improbable
given the risk of fraud such a casual method of
business would promote.
[10]
The suggestion as to who could have made these withdrawals other than
the appellant was that the complainant's cousin or someone
else known
to the complainant could have been aware of his bank account and
pretended to be him. Not only is this suggestion entirely
speculative
but it does not explain how such person could have obtained the
number of the complainant's savings account when, according
to the
complainant's evidence, the book was safely locked up at all times.
The appellant herself claimed no recollection at afl
of any of the
transactions. Even if this speculative explanation of events was
reasonably possible, it does not explain how any
such person could
make six withdrawals effectively cleaning out the complainant's
account in a period of less than 10 days, without
exciting any
suspicion on the part of the appellant. I am satisfied therefore that
the magistrate correctly convicted the appellant
on the charge of
fraud
[11]
On appeal it was contended that in sentencing the appellant to two
years' imprisonment the magistrate had misdirected himself
in not
placing sufficient emphasis on her personal circumstances. At the
time of sentencing the appellant was 27 years old, employed
as a
clerk at the South African Police Service and was a singfe parent of
two children aged four years and one year of age. Those
children will
now be approximately seven years and four years old respectively.
Appellant was a first offender and had the financial
ability to pay a
fine. A probation officer's report regarding the suitability of a
community service sentence was obtained but
it was not handed in by
the defence because it had been unfavourable to the appellant.
[12]
The magistrate stated that he took into account that appellant had
two young children but added that this factor should not
influence
the Court to impose a sentence which was inappropriate. There is no
evidence in the record however concerning how the
appellant's
children would be cared for in the event that she was incarcerated,
nor did the magistrate make any enquiries in this
regard. In
M
v S
2007(12) BCLR 1312 (CC), the Constitutional Court considered what the
duties of a sentencing court are in the light of section
28(2) of the
Constitution when the person being sentenced is the primary caregiver
of minor children. That section provides that:
"A
child's best interests are of paramount importance in every matter
concerning the child". The Court held that section
28(2) read
with section 28(1 (b) provided that every child has a right to family
or parental care or appropriate alternative care
when removed from
the family environment. It imposed four responsibilities on a
sentencing court when a custodiat sentence for
a primary caregiver
was in issue. They are:
1. To
establish whether there would be an impact on the child.
2. To
consider independently the child's best interest.
To
attach appropriate weight to the child's best interests.
To
ensure that the child would be taken care of if the primary
caregiver was sent to prison.
The
Court laid down guidelines to promote uniformity of principles,
consistency of treatment and the individualisation of outcomes
in
such matters. One guideline is that if there is a range of
appropriate sentences on the well-known
Zinn
or triad approach, then the court must use the paramountcy principle
concerning the interests of the child as an important guideline
in
deciding which sentence to impose. In effect, a court sentencing a
primary caregiver must undertake a balancing exercise. The
two
competing considerations to be weighed by the court are, firstly the
importance of mafntaining the integrity of family care
and, secondly
the duty on the State to punish criminal misconduct.
[13]
In my view, these duties on the part of the sentencing court,
although of course yet to be spelt out by the Constitutional
Court,
were nevertheless not adequately observed by the magistrate. No
enquiry at all was directed at the interests of the appellant's
minor
children and, more specifically, how they would be cared for in her
absence.
[14]
In my view, furthermore, this case is clearly not one where only a
custodial sentence was appropriate. The appellant was found
guilty of
a serious offence involving a breach of trust and she expressed no
meaningful remorse for her actions. Taking all the
circumstances of
the matter into account, however, a range of sentencing options
including, but not limited to a fine, suspended
sentence or a
community service sentence, were
prima
facie
appropriate.
[15]
In this regard it is unfortunate that, notwithstanding the attitude
of the appellant's legal representative, the magistrate
did not
insist that the probation officer's report in regard to a sentence of
community service be placed before him. The magistrate's
failure to
give proper weight to the interests of the appellant's minor children
was, in my view, a misdirection entitling this
Court to interfere
with the sentence,
[16]
Taking aEI relevant factors into account I consider an appropriate
sentence to be a fine of R5 000 or one year's imprisonment
with a
further period of imprisonment of one year suspended for five years
on condition that the accused is not found guilty during
this period
of any offence involving dishonesty Should the appellant be unable to
pay the entire fine immediately she may approach
the clerk of the
criminal court in ClanwMliam with a view to making payment thereof in
instalments over a limited period of time.
I may add she may approach
the clerk of the criminal court or a magistrate in Clanwilliam.
[17]
In the result I would dismiss the appeal against conviction but
uphold the appeal against sentence. I would set aside the
sentence
imposed by the magistrate and replace it with the sentence set out
above.
BOZALEK,
J
MOTALA,
J
:
I agree and it is so ordered.
MOTALA,
J