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[1987] ZASCA 31
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S v Schwartz (442/85) [1987] ZASCA 31 (27 March 1987)
KATHE LYDIA SOPHIE SCHWARTZ APPELLANT
and
THE
STATE
RESPONDENT
CASE NO. 442/85
/ccc
IN THE SUPREME COURTOF SOUTH
AFRICA (APPELLATE DIVISION)
In the matter
between
KATHE LYDIA SOPHIE SCHWARTZ APPELLANT
and
THE STATE
RESPONDENT
CORAM
: BOTHA, NESTADT JJA et NICHOLAS AJA
DATE HEARD
: 24 MARCH, 1987
DATE DELIVERED
: 27 MARCH,1987
JUDGMENT NESTADT, JA
:
Appellant pleaded guilty to, and
was
convicted/
2.
convicted by a Johannesburg magistrate on, five counts of contravening
sec 53(1) of the Labour Relations Act 28 of 1956 ("the Act"
) . A sentence of 1
000 hours periodical imprisonment was imposed (the five counts being taken
together for this purpose). An appeal
against sentence to the full bench of the
Transvaal Provincial Division failed. This is a further appeal (with the leave
of the court
a
quo
) against sentence.
The offences consisted in the failure of, what I may call, appellant's
company to comply with certain agreements which, in terms of
sec 48 of the Act,
had been declared to be binding on it as an employer
in/
3. in the furniture manufacturing industry in the Transvaal. In
breach thereof the company had, in respect of the months of October,
November
and December 1983 and January 1984,failed to pay to the industrial council
concerned certain provident and holiday fund
contributions, training fund
levies, council expenses and trade union subscriptions in the total sum of Rl2
920,08. The company was
a co-accused and was also found guilty. Appellant's
convictions were based on the deeming provisions of
sec 332(5)
of the
Criminal
Procedure Act 51 of 1977
. She was at all ma-terial times the sole director and
shazeholder of the company, whose affairs she managed. In sentencing appellant,
the magistrate also ordered her (and the company),in terms of
sec 54(1)
of the
Act,to pay to
the/
4. the industrial council the amount involved at the rate of
R500,00 per month over a period of 26 months, commencing on 30 June
1984.
Appellant is a woman, who, at the time of
her trial (in April 1984),
was about to turn 74 years of
age. She acquired control of the company in
October 1982.
It would seem that she struck a bad bargain. Certainly,
from
the beginning, it was in financial difficulty and
apparently not profitable.
Appellant, nevertheless, per-
severed in conducting the business. In doing
so, however,
she failed to ensure that the company complied with
its
obligations under the industrial agreements referred to.
It was in
breach thereof from October 1982. As a
result it, together with appellant,
was from time to
time/
5. time prosecuted and convicted on charges
similar to the ones in issue in this appeal. The first was in respect of
payments due
from October 1982 to January 1983. Arrears of R13 393,15 were
involved. Appellant's sentence was a fine (of R13 393,15) which was
conditionally suspended for five years. The second conviction, on 21 July 1983,
was in respect of an amount of R22 880,54 due for
the period February 1983 to
May 1983. Appellant was sentenced to a fine of Rl 000 or one year imprison-ment,
conditionally suspended
for five years. The third was on 29 September 1983. It
related to the company being in default of payment of contributions due for
June
and July 1983 in the sum of R5 935,74.
A/
6.
A fine of R500, or six months imprisonment on each of the five
counts was imposed. On 24 February 1984 appellant was convicted for
the fourth
time, in respect of the company|s failure to pay an amount of R7 650,02 due for
August and September 1983. This time she
was sentenced to six months
imprisonment on each count, conditionally suspended for five years. On each
occasión orders for
the payment of the arrears were made against the
company and appellant.
In sentencing appellant, the magistrate was not ummindful of her age. On the
contrary, the prospect of imposing a prison sentence
on her obviously gave him
cause for concern. He,nevertheless, felt compelled to do so. He was,
understandably, influenced
by/
7.
by appellant's bad record. With justification
he
observed:
"(Y)ou failed to pay any contributions before there are any court orders...
(I)t is really shocking to think that a person is in the
trade and really does
not take cognisance of the court orders and of other payments which should be
paid ... It is obvious to the
Court that you decided that you will do a.s. you
like. That you are not prepared to listen to the Court Orders. You are in
arrears
already on the amounts you should have paid back."
The last statement was correct. Only about R7 500,00
was paid in respect of contributions owing for the
period October 1982 to September 1983. This left,
as at the time of appellant's trial, an amount of
R42 359 in arrears. And to this had to be added
the/
8.
the sum of R12 920,08 which had not been paid for
the
subsequent four month period, ie, until and including January 1984. There
had, moreover, been the evidence, tendered by the State,
of an officer of the
industrial council, pointing out the prejudice caused to it and the company's
employees by the failure to pay
the contributions.
In the light of all these considerations and despite appellant's testimony,
in mitigation of sentence, that she was in ill-health,
I might not have been
inclined to accede to the argument of Mr
Solomon
, on behalf of appellant,
that the sentence was unduly severe. It seems to me, however, that counsel's
second submission, viz, that
the trial court misdirected itself, is sound and
that, on this basis, there was an improper
exercise/
9.
exercise by it of its discretion. Having reviewed
appellant's course of conduct and previous convictions
thé magistrate said:
"(T)he Court feels that it is time that you should be taught a lesson ...(i)n
the past the Court assisted you in every possible way.
You received suspended
sentences, and other sentences, and the last - even on the fourth occasion -you
got six months imprisonment,
everything was suspended to assist you. But you
showed the Court that every assistance was just thrown back into the Court's
faces,
and the Court feels that you should be sentenced to imprisonment. But
becaúse of your age the Court feels that the Court will
not impose the
normal period of im-prisonment. You are sentenced to 1 000 hours periodical
imprisonment."
This was not a correct assessment of the position. What
was overlooked was that the fourth conviction, though in
respect of a failure to pay contributions for a period
(ie/
10.
(ie August and September 1983) which was prior to
the
months in issue in her trial (ie October, November and
December 1983
and January 1984), only took place there-
after (ie on 24 February 1984). Accordingly, when
appellant committed the offences for which she has now
been sentenced, the suspended sentences of six months
imprisonment, referred to by the magistrate, were not
in existence. In
S v Jack
1982(4) S A 736(A), Trengove JA
said (at 742 F);
"Waar 'n hof by straftoemeting 'n beskuldig-de se vorige veroordelings as 'n
ver-swarende faktor teen hom in ag neem, be-hoort die
hof, uit die aard van die
saak, die gegewens, wat op die betrokke vorm S A P 69 voorkom, versigtig te
ontleed..."
I am bound to say that this
did not happen here. Whilst
the trial court, in sentencing appellant, was clearly
entitled/
11.
entitled to take her fourth conviction into
account
(
R v Zonele & Others
1959(3) S A 319(A1 at 330 D - 331 A),
it should not have done so in.the way in which it did.
Indeed, Mr
Roets
, for the State, in his able yet commendably
fair argument, had understandable difficulty in contesting
this.
We are, in the circumstances, entitled to impose sentence afresh. And it
remains to do so. The seriousness of the offences is not
to be underestimated.
In terms of sec 82(1) (b) of the Act, they are punishable by a fine not
exceeding Rl 000 or imprisonment for
a period not exceeding one year or such
imprisonment without the option of a fine or both such fine and such
imprisonment. I have
already referred to the prejudice
to/
12. to the industrial council and the company's employees and, of
course, to the repeated contraventions committed by appellant. The
amount
involved is large. I have, nevertheless, come to the conclusion that this is not
a case where justice and, more particularly,
the purposes of punishment, would
be served by appellant having, uncondi-tionally, to undergo imprisonment
(whether periodical or
otherwise). What weighs with me is the following:
(i) It need hardly be emphasised that a sentence of periodical imprisonment
is a "very real form of punishment" (per Fannin J in
S v Bhadloo
1971(1)
S A 53 (N) at 54 fin and quoted with approval in
S v Erwee
1982(3) S A
1057(A) at 1065 B - D). (ii) To subject a person of appellant's age (she was
described/
13.
described by her counsel as being in her
twilight
years) to it, would be a severe sentence requiring
exceptional circumstances.
(iii) During the course of his judgment on
sentence, the
magistrate said:
"Now you might tell me that you are not a criminal, and I will agree with
you, but on the other hand if you go to jail -you will get
the same treatment as
any-other criminal".
I think that what he had in mind was the conside-
ration that appellant's failure to pay did not
involve any dishonesty. I agree with this. Nor
was it to be inferred that she was deliberately
flouting her obligations. Her conduct stemmed
rather, so it seems to me, from her shortage of
funds/
14. funds, and,perhaps one might add, an irresponsi-bility or folly brought on
with her advancing years. These are considerations
which, in my judgment,
reduced her moral blameworthiness and were, as such, mitigating.
(iv) She was, in any event, not insensible to her predica-ment. In about
November 1983 she attempted to sell certain immovable property,
the proceeds
whereof she intended to use to pay the amounts owing to the industrial council.
She also, over the period in question,
injected (unavailingly) approximately R50
000 of her own capital into the business (from which she did not draw a
salary).
(v) I must revert to appellant's previous
convictions.
Her sentences prior to her defaulting in the
payment
of/
15. of the contributions due for the period
October 1982 to January 1983 were, leaving aside the alternatives, two suspended
and one
outright fine. I do not believe that they sufficiently brought home to
her the realisation that a repetition of her 'failure to comply
with her
statutory obligations might lead to her imprisonment, whether periodical pr
otherwise. On the facts of this case, it seems
to me, that before this happened,
fairness required that appellant be made aware that she stood in jeopardy of
such a sentence being
imposed. Only then could it justifiably be said that she
deserved to be "taught a lesson" (by being gaoled). (vi) Significantly,
consequent upon the suspended
sentence/ ......
16.
sentences of six months imprisonment, imposed on
24 February 1984, the February, March and April 1984 contributions were paid, if
not timeously, then soon after they fell due. (vii) The impression one gains
from her evidence (and con-firmed by what has been stated
in previous
sub-paragraphs) is that appellant was truly remorseful for her conduct.
On an
overall view of the relevant circum-stances, I have come to the conclusion that,
whilst the stage has been reached where imprisonment
has to be con-sidered as a
punishment, the appropriate form it should take is a suspended period on the
terms which are set out in
the order which follows. It will, one hopes,
achieve
the/
17. the trial court's obvious and praiseworthy desire to
avoid appellant actually being imprisoned.
The appeal succeeds. The sentence of the
magistrate is set aside. In its
place there is substituted
the following sentence: The five counts are, for the
purposes of sentence, treated as one. In respect thereof
a sentence of six months imprisonment is imposed. It is
suspended for three years on condition that appellant
(or accused no 1) pay any unpaid balance of the amount
of R12 920,08 owing in terms of the order in instalments
of R500 per month commencing on or before 30 April 1987
and thereafter by the 30th of each succeeding month.
H-H" NESTADT, JA BOTHA, JA )
) CONCUR NICHOLAS, AJA )