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[2025] ZAKZPHC 111
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Kudoos and Others v S (AR169/24; RC41/116/2018) [2025] ZAKZPHC 111 (28 October 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: AR169/24
Court
a quo: RC41/116/2018
In
the matter between:
FATHIMA
KUDOOS
First Appellant
FADEELA
KUDOOS
Second Appellant
TASNIEM
BIBI MUKHARIB
Third Appellant
ZAINE
KUDOOS
Fourth Appellant
and
THE
STATE
Respondent
ORDER
On
appeal from:
T
he Regional Court for the
Regional Division of KwaZulu Natal held at the Specialised Commercial
Crime Court, John Ross House Durban
(Magistrate DM Soomaroo
presiding):
1.
The appeal by each appellant against
sentence is dismissed.
2.
The sentence imposed by the court a quo
in respect of each appellant is confirmed save to exclude the last
order and substitute
same with the additional orders in paragraphs 3
and 4 below.
3.
Given the sentences imposed in
paragraph 2 above, the Department of Social Development together with
the National Commissioner for
Correctional Services are directed to
take all appropriate steps to ensure the elderly mother of the first
appellant and the minor
children of the second, third and fourth
appellants are properly cared for in all respects during the
respective appellants’
period of imprisonment including, but
not limited to if necessary, conducting further investigations
:
(a)
involving the
first appellant’s elderly mother and members of the extended
family, including the first appellant’s two
sisters, to find
the best possible way of caring for the elderly mother;
(b)
into the
wellbeing of the minor children of the second, third and fourth
appellants and to take the most appropriate measures to
ensure the
safety and wellbeing of the minor children.
4.
The
National
Commissioner for Correctional Services is to ensure:
(a)
insofar as reasonably practical, that the
second, third and fourth appellants serve their sentence at a
Department of Correctional
Service Centre / facility close to their
minor children;
(b)
that
a social worker in the employ of the Department of Correctional
Services visits the children of the second, third and fourth
appellants at least once every two months during their incarceration
and submits a report to the office of the National Commissioner
as to
whether the children are in need of care and protection as envisaged
in
s
150
of the
Children's
Act 38 of 2005
and, if so, to take the steps required by
that provision.
JUDGMENT
Naidoo AJ (Henriques J
concurring)
Introduction
[1]
This is an appeal against the sentences imposed by the
Regional
Magistrate presiding at the Commercial Crime Court
for the Regional Division of KwaZulu-Natal
on various
counts of fraud and money laundering. Each of the appellants
received a custodial sentence.
[2]
The first appellant was convicted of one count of fraud,
ten counts
of money laundering in contravention of
s 4
, read with ss1 and 8(1)
of the Prevention of Organised Crime Act 121 of 1998 (‘POCA’)
and sentenced to ten years imprisonment.
[3]
The second appellant was convicted of two counts of fraud
and fifteen
counts of money laundering and contravention of s 4, read with ss1
and 8(1) of POCA and sentenced to eleven years imprisonment.
[4]
The third appellant was convicted of four counts of money
laundering
and contravention of s 6, read with ss1 and 8(1) of POCA and
sentenced to five years imprisonment in terms of s 276(1)
(i)
of the Criminal Procedure Act 51 of 1977 (‘CPA’).
[5]
The fourth appellant was convicted of one count of money
laundering
and contravention of s 6, read with ss1 and 8(1) of POCA and
sentenced to four years imprisonment in terms of section
276(1)
(i)
of the CPA.
[6]
Leave to appeal against the sentences was granted on
25 April 2023.
This matter serves before us as an appeal against the sentences
imposed by the court a quo.
Background
facts
[7]
In summary, the appellants respective convictions arise
from the
following facts. The appellants are family members. The first and
second appellants had applied for a loan from the complainant,
a
bank, ostensibly to finance a piece of equipment. They
misrepresented to the bank that they were purchasing a new piece
of
equipment from a third party. The bank, acting on the
misrepresentation, approved the loan and paid it into the bank
account of the third party. At the instance of the first and
second appellants, the money was dispersed into various accounts,
including that of the third and fourth appellants.
[8]
It transpired that the equipment was not new but was
an old piece of
equipment owned by the first appellant. The equipment was
subsequently attached by the bank and sold on auction
for a nominal
amount. The appellants made an offer at the sentencing stage to repay
the money in the form of a partial lumpsum
of R70 000 and the balance
in instalments over 60 months. The bank had rejected the offer.
[9]
The thrust of the appeal on the papers is that the learned
magistrate
erred in imposing a sentence of direct imprisonment upon the
respective appellants and ought to have imposed a sentence
of
correctional supervision and an order made in terms of s 297 of the
CPA, coupled with a suspended sentence.
[10]
At the
hearing of the appeal, Mr
Jorgensen
,
acting for the appellants, raised an issue that was not foreshadowed
in the papers. The issue relates to the significance, if
any, of the
additional orders issued at the end of the sentencing ruling
[1]
where the learned magistrate ordered the Department of Social
Development to undertake a full inquiry with regards to the elderly
mother of the first appellant and the wellbeing of the two minor
children of the second and fourth appellants.
[11]
Mr
Jorgensen
sought to suggest that such investigation ought
to have preceded the sentencing of the appellants and served no
purpose once the
sentences had been imposed. Mr
Jorgensen
contended that this constituted a misdirection on the part of the
learned magistrate in that she did not take all the personal
circumstances of the appellants into account, as she is enjoined to
do, culminating in an unjust sentence of direct imprisonment.
[12]
Mr
Jorgensen
called on the court to consider the sentence
afresh instead of referring the matter back to the magistrate and to
substitute it
with a new sentence. If the court was amenable to the
proposal, it would be bound by the record. Ms
Letsholo
, for
the State, maintained that there was no issue with the sentence
imposed and submitted there was no misdirection as alleged.
Evaluation
[13]
For the reasons set out below, this court is not persuaded by the
submissions
that the additional orders constitute a misdirection on
the part of the learned magistrate.
[14]
It is clear
from the record
[2]
that the
learned magistrate did consider the pre-sentence reports compiled for
the purpose of sentencing which included the probation
officers’
reports and the social workers’ reports which dealt with the
personal circumstances of the appellants, and
the arrangements made
for the care of the elderly parent and minor children.
[3]
She ultimately found that these personal circumstances did not
detract from the gravity of the offences nor did they warrant a
non-custodial sentence. These findings are beyond reproach.
[15]
The record reveals that the inclusion of the additional orders was a
considered
determination, which did not detract from the fact that
the learned magistrate had made a full and proper assessment of the
circumstances
relating to the elderly parent and minor children and
was intended to ensure that during the respective appellants’
incarceration
appropriate steps could be taken to ensure the
wellbeing of the elderly parent and children.
[16]
The court a quo was empowered to order the investigations
foreshadowed in the
additional orders because the extended family
members had expressed reluctance to care for the elderly mother of
the first appellant
and the minor children of the second and fourth
appellants. In those circumstances, the additional orders were made
in the event
that none of the family members would assume
responsibility for the first appellant’s elderly mother and the
minor children
of the second and fourth appellants. In such
circumstances, the State would need to make the necessary
arrangements for their
care. There is accordingly a rational
explanation for the inclusion of the additional orders, and they were
clearly foreshadowed
in the learned magistrate’s findings.
[17]
This is
evident from the record at pages 313 and 314 which reads as
follows:
[4]
“
The
court finds that accused 2 and accused 8 to an extent are the primary
caregivers to their children. In light of the fact
that accused
8’s father cannot care for his own grandchildren, the court can
order that the children’s be considered
under the Child Care
Act and if necessary, an inquiry be held in terms of the Children’s
Act and that their matter be dealt
with appropriately.
In
respect of the child of accused 6 her husband can care for her child
as well as the extended family, should she be incarcerated,
as she
shares a good relationship with her extended family. The court
is satisfied that the accused’s children will
be in the care of
the father in respect of accused 6 and with regard to accused 1 and
accused 8 that adequate arrangements can
be made for the state to
care for the said children.
The
mother of accused 1, accused 2 cares for her aged mother who resides
with her and has been for several years. The court
is satisfied
that a proper investigation was undertaken in respect of the
wellbeing of her aged mother. Accused 1 and her two siblings
were
not, accused 1’s two siblings, being her sisters, are not
prepared to care for their own mother, should accused 1 be
incarcerated, in the light of their refusal she can be cared for at a
frail care centre and it would be up to the family member
to make the
necessary arrangements and there is a duty, indeed a duty on the
accused’s siblings to provide some form of care
and security
for their aged mother.
They
will, under the circumstances, have to collectively assist their
mom. The court finds that if accused 2 is imprisoned
the
extended family can consider all the options to care for their mother
and it must indeed do so because of her frail health,
which makes her
vulnerable and therefore she is part of the group involving
vulnerable persons.”
[18]
Generally,
the record indicates that the learned magistrate had due regard to
the triad of
S
v Zinn
[5]
as well as the recognised objectives of sentencing. The court
considered that the appellants were first offenders, their personal
circumstances and particularly the circumstances of the minor
children and elderly parents. However, the seriousness and prevalence
of fraud and money laundering and its impact on the stability of
banking institutions and ultimately on society were material
considerations for the court. The court found that the offences were
clearly premeditated, that it took a great deal of planning
over a
long period of time, involved several co-perpetrators and was
premised on a series of deliberate misrepresentations.
[19]
The time, effort and planning that the first and second appellants
devoted
to the implementation of the scheme weighed heavily with the
court. They perpetrated the crimes in full knowledge that it would
place their immediate families at risk. The departure from the
minimum sentence in respect of the first and second appellants
illustrates that a measure of mercy was nevertheless extended to
them.
[20]
The court took cognizance of the fact that the second appellant had
previously
attempted to defraud the complainant but was unsuccessful.
She was, however, undeterred and persisted with her unlawful conduct
and therefore the risk of reoffending is high.
[21]
The learned magistrate found that whilst the third and fourth
appellants were
used as conduits for the money to be dispersed, they
willingly participated in the scheme of concealing the funds thereby
actively
participating in the execution of the plan to defraud.
Similarly, they too risked the well-being and security of their
families
when they agreed to be part of the fraud. The fourth
respondent in particular took no responsibility for his actions and
showed
no remorse. The third appellant claimed to take responsibility
for her actions but did so with a measure of hesitancy.
[22]
The court found that the circumstances that gave rise to the guilty
pleas and
the timing thereof placed some doubt on whether there was
true remorse on the part of the appellants. It was nevertheless
considered
a neutral factor when the court considered the mitigating
factors.
[23]
The court was mindful of the financial loss suffered by the
complainant through
the advancement of the loan amount and costs
associated with the subsequent investigations, recovery, storage and
sale of the equipment.
The court took the view that there was too
much uncertainty regarding the appellants’ financial position
and ability to repay
the monies to order the payment of compensation
as proposed.
[24]
What emerged was that given the uncertainty regarding their
respective financial
positions, they would be reliant on their
extended family for assistance. An aggravating factor was the fact
that the appellants
had not made any real effort to pay back any of
the money prior to the sentencing hearing.
[25]
The court also concluded that there was no evidence of genuine
financial need
which motivated the crime. The appellants failed to
make a full disclosure of their motives, and the only inference was
that the
appellants were motivated by greed and acted with common
purpose in perpetrating the crime.
[26]
There appeared to be some confusion at the hearing of the appeal
regarding
the sentence imposed by the court a quo in respect of the
third and fourth appellants. The third appellant was convicted
of four counts of money laundering, which attract a custodial
sentence of up to 30 years for each count. The fourth appellant was
convicted of one count of money laundering which could attract a
custodial sentence of up to 30 years.
[27]
Notwithstanding the court a quo’s finding that neither of the
appellants
demonstrated true remorse, in a show of mercy and having
regard to their personal circumstances, the third and fourth
appellants
were sentenced to five- and four-years’ imprisonment
respectively, in terms of s 276(1)
(i)
of the CPA.
[28]
In argument, Mr
Jorgensen
curiously sought an order that the
sentences be substituted for ones in terms of s 276(1)
(i)
of
the CPA. The court assumes in his favour that he intended to seek an
order in terms of s 276(1)
(h)
of CPA, which does not involve
any direct imprisonment, and the matter will accordingly be dealt
with on that basis. This approach
accords with the relief sought in
paragraph 36.3 of the appellants’ heads of argument. The
appellants contend that the court
a quo failed to properly consider
their personal circumstances and over-emphasised the elements of
retribution and deterrence.
[29]
I have
considered the decision in
S
v Truyens
[6]
as well as the provisions of ss 276(1)
(h)
and 276(1)
(i)
of the CPA, which provide as follows:
‘
(1)
Subject to the provisions of this Act and any other law and of the
common law, the following sentences may be passed upon a
person
convicted of an offence, namely-
.
. .
(h)
correctional supervision;
(i)
imprisonment from
which such a person may be placed under correctional supervision in
the discretion of the Commissioner or a parole
board’.
[30]
The facts of
Truyens
and that of the present matter are
clearly distinguishable. In
Truyens
the appellant had stolen
cattle from his employer to pay for medical costs for his three
children. He was a mature first offender
and the crime was committed
out of need.
[31]
Correctly interpreted, in my view, is the fact that correctional
supervision
is but one of the sentencing options for a court to
consider when sentencing, but it is not mandatory. The use of the
word ‘may’
in s 276(1) of the CPA is supportive of this
interpretation.
[32]
The submission that the appellants should have, because of their
personal circumstances,
been sentenced to correctional supervision or
community service or a suspended sentence ignores the fact that a
court is also required
to consider the other two elements of the Z
inn
triad when sentencing, namely the crime and the community, and
post Constitution requires that the impact of the crime on the victim
is a further consideration.
[33]
The personal circumstances of the third and fourth appellants do not
support
the submission that a term of direct imprisonment is
inappropriate. The third appellant is married and is part of a large
and supportive
extended family. Both her husband and mother are
available and able to attend to the needs of the minor children.
There are accordingly
satisfactory arrangements in place to care for
the minor children whilst the third appellant is incarcerated.
[34]
Whilst it is true that the children of the second and fourth
appellants will
be left without parents for the period of
imprisonment, their current living arrangements suggest that they
will be adequately
cared for. The same applies to the first
appellant’s elderly mother.
[35]
The first, second and fourth appellants reside in the same home which
is situated
on what appears to be communal property. The remaining
family members are the first appellant’s husband who is the
grandfather
of the minor children as well as two of the first
appellant’s sisters who live in different homes on the same
property.
There are accordingly several adult family members
who live near the minor children and the elderly parent and who can
assist with
seeing to their needs in their current home. In the
unlikely event that the extended family eschews its obligations in
this regard,
the pre-sentence and social worker reports indicate that
there are suitable alternative arrangements for the care of the minor
children and the elderly parent. This court will also issue
additional orders to mitigate any prejudice.
[36]
In the circumstances, this court takes the view that a non-custodial
sentence
as proposed by Mr
Jorgensen
is not appropriate. It
accordingly finds no reason to depart from the sentences imposed by
the court a quo in terms of s 267(1)
(i)
of the CPA.
[37]
The appellants contend further that any order made in terms of s 297
should
have been coupled with a suspended sentence. It is common
cause that the provisions of the minimum sentence legislation were
applicable
to the offences of fraud for which both the first and
second appellants were convicted. The learned magistrate found that
there
were, to an extent, substantial and compelling factors which
entitled her to deviate from imposing the prescribed minimum sentence
of fifteen (15) years. There is no appeal against this finding.
[38]
In
Hildebrand
v The State
,
[7]
the court held:
‘
It
should be clear that s 51(5) refers to “a minimum sentence
imposed in terms of this section”. Self-evidently, this
section
does not apply to sentences imposed after a finding that substantial
and compelling circumstances exist, because such a
sentence is not
one imposed in terms of s 51. The sentence imposed by the regional
magistrate accordingly did not fall within the
restrictive provisions
of s 51(5).’
[39]
In the circumstances, there is no need for this court to say anything
further
on the subject as the sentence of the court a quo did not
fall within the restrictive provisions of s 51. Furthermore, the
appellants
have failed to make out a case that the learned magistrate
did not exercise her discretion judiciously.
[40]
The learned magistrate conducted a proper and considered assessment
of the
personal circumstances of the appellants as well as the
various pre-sentencing reports. The court satisfied itself that
appropriate
arrangements had been made to take care of the minor
children and elderly parents. In doing so the learned magistrate had
regard
to the legal principles regarding the best interests of a
child and the need to balance those rights with the objectives of
sentencing.
The learned magistrate after having found substantial and
compelling circumstances to exist, found there were no additional
circumstances
that militated against the imposition of a custodial
sentence.
[41]
The learned
magistrate’s approach accords with the guidelines set out in
S
v M (Centre for Child Law as Amicus Curiae)
[8]
which
promotes
uniformity of principle, consistency of treatment and
individualisation of outcome. The Constitutional Court held that
if
on the
Zinn
-triad
approach the appropriate sentence is clearly custodial and the
convicted person is a primary caregiver, the court must apply
its
mind to whether it is necessary to take steps to ensure that the
children will be adequately cared for while the caregiver
is
incarcerated. The sentence imposed by the court a quo, coupled with
the additional orders, meets this requirement.
[42]
It
is trite that the imposition of sentence is the ‘prerogative of
the trial court’.
[9]
An
appellate court may not interfere with this discretion merely because
it would have imposed a different sentence. In other
words, it is not
enough to conclude that its own choice of penalty would have
been
an
appropriate
penalty.
Sadler
pointed out that ‘[s]omething more is required’; it must
conclude that its own choice of penalty is the appropriate
penalty
and ‘that the penalty chosen by the trial court’ is
not.
[10]
Thus, the appellate
court must be satisfied that the trial court committed a misdirection
of such a nature, degree and seriousness
that shows that it did not
exercise its sentencing discretion at all or exercised it improperly
or unreasonably when imposing it.
[11]
So,
interference is justified only where there exists a ‘striking’
or ‘startling’ or ‘disturbing’
disparity
between the trial court’s sentence and that which the appellate
court would have imposed.
[12]
And in such instances the trial court’s discretion is regarded
as having been unreasonably exercised.
[43]
The
power of an appeal court to interfere with the sentence imposed is
limited. The Supreme Court of Appeal in
S
v Barnard
[13]
stated the following:
‘
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 a nature, degree or
seriousness that it shows that the court did
not exercise its
discretion at all or exercised it improperly or unreasonably
.’
[44]
In
S
v Romer
[14]
the
following was held:
‘
It
has been held in a long line of cases that the imposition of sentence
is pre-eminently within the discretion of the trial
court. The
appellate court will be entitled to interfere with the sentence
imposed by the trial court only if one or more of the
recognised
grounds justifying interference on appeal have been shown to exist.
Only then will the appellate court be justified
in interfering. These
grounds are that the sentence is —
“
(a)
disturbingly inappropriate;
(b)
so
totally out of proportion to the magnitude of the offence;
(c)
sufficiently disparate;
(d)
vitiated by misdirections showing that
the trial court exercised its discretion unreasonably; and
(e)
is otherwise such that no reasonable court would have imposed it.”’
(Footnotes omitted.)
[15]
[45]
On appeal, the test is not whether this court
would have imposed the same sentence, but rather whether on the facts
of the particular
matter the court a quo properly applied its mind to
the imposition of sentence.
[46]
In
determining the appropriateness of the sentences imposed, I have
considered the decision in
Ntonzini
v S
[16]
where the appellant was 60 years old at the time the offence of fraud
and money laundering was committed. Her sentences of fifteen
years’
imprisonment for the fraud conviction and five years’
imprisonment for the money laundering conviction, were
confirmed on
appeal. The magistrate had considered her age and found that it did
not justify a substantial and compelling circumstance.
The appeal
court held that the correct balance was struck by the magistrate.
[47]
Similarly,
in
Hewitt
,
[17]
the court held that although the advanced age of an accused has been
considered to be a mitigating factor, it does not mean that
such an
accused cannot be sentenced to imprisonment. Although the element of
rehabilitation bore little relevance in this case
because of the
appellant’s age, the sentences would still serve the other
important purposes of sentence, that is, deterrence
and retribution.
The appellate court accordingly had no right to interfere.
[48]
In
Van
Jaarsveld v S; Ras v S
,
[18]
the court found that the role of a primary caregiver necessitates a
more nuanced consideration of the sentencing options. In that
case,
the appeal court held that there was an apparent lack of explicit
consideration of the best interests of Mr Van Jaarsveld’s
children as mandated by s 28 of the Constitution and the
relevant case law. This omission constituted a misdirection which
warranted the appeal court’s intervention.
[49]
This is not the case in this matter where the
interests of the minor children and the second, third and fourth
appellants’
roles as primary care givers were extensively
canvassed and considered by the learned magistrate. In my view, there
is no scope
for interference on this basis.
[50]
A key element of restorative justice is an
acknowledgement of wrongdoing. In
casu
,
the court was not persuaded that the appellants had demonstrated any
true remorse for their conduct. Accordingly, the learned
magistrate’s
finding that a term of direct imprisonment is warranted, is beyond
reproach.
[51]
In my view, having regard to the judgment on
sentence the appellants have not succeeded in showing an
irregularity, misdirection
or any other basis to warrant any
interference by this court with the sentence imposed.
[52]
Having
regard to the personal circumstances of the appellants, the
circumstances under which the offence was committed and the interests
of society the sentences do not induce a sense of shock, are not
unduly harsh nor are they disturbingly or strikingly inappropriate.
I
agree with the sentiment expressed by the Supreme Court of Appeal
that a ‘first offender has no right to be kept out of
jail.’
[19]
[53]
In determining an appropriate sentence, the court a quo took
cognizance of
the fact that the first and second appellants were
found guilty of fraud, which attracts a prescribed minimum sentence
of 15 years
for a first offender, unless the court is satisfied that
substantial and compelling circumstances exist which justify the
imposition
of a lesser sentence. Coupled with that, all four
appellants were found guilty of money laundering in terms of ss 4 and
6 of POCA,
which renders them liable for a fine not exceeding R100
million or imprisonment for a period not exceeding 30 years.
[54]
To put it in perspective, the first and second appellants would in
the absence
of substantial and compelling circumstances be liable for
imprisonment for a period of 15 years for each count of fraud and up
to 30 years for each count of money laundering. It bears
mentioning that the first appellant was found guilty of one count
of
fraud and ten counts of money laundering and the second appellant of
two counts of fraud and fifteen counts of money laundering.
[55]
To ameliorate the potential prejudice to the first and second
appellants as
set out above, the court a quo had regard to the fact
that the counts of money laundering emanate from the fraud and
accordingly
all counts were taken as one count for the purposes of
sentencing. The court a quo was also mindful of the personal
circumstances
of the appellants and that the facts of the case fall
outside the realm of the usual fraud cases.
[56]
Beyond the factors set out above which incorporate the principle of
mercy,
this court is unable to find any further extenuating factors
that would warrant interfering with the sentence imposed by the court
a quo in respect of the first and second appellants. The court takes
cognizance of the fact that the second appellant had previously
attempted to defraud the complainant but was unsuccessful. She was,
however, undeterred and persisted with her unlawful conduct
and
therefore the risk of reoffending is high.
[57]
In the circumstances, the court considers a term of imprisonment of
10 years
for the first appellant and 11 years for the second
appellant to be wholly appropriate.
[58]
A further ground of appeal is that the learned magistrate ought to
have ordered
payment of compensation to the complainant alongside an
order in terms of s 297 of the CPA.
[59]
The court is mindful of the financial loss suffered by the
complainant through
the advancement of the loan amount and costs
associated with the subsequent investigations, recovery, storage and
sale of the equipment.
The court a quo took the view that there was
too much uncertainty regarding the appellants financial position and
ability to repay
the monies to order the payment of compensation as
proposed. An aggravating factor was the fact that the appellants had
not made
any real effort to pay back any of the money prior to the
sentencing hearing. The complainant has rejected all offers to repay
the money on the terms proposed by the appellants.
[60]
In the light of the terms of direct imprisonment imposed on the
appellants,
this court is not persuaded that there are grounds to
depart from the position adopted by the court a quo and accordingly
declines
to exercise its discretion to make a compensatory order.
[61]
The court further considers as an aggravating factor, the fact that
none of
the appellants have taken the court into their confidence and
disclosed the motive for the crimes. There is accordingly no evidence
of genuine financial need which motivated the crime. The only
inference is that the appellants were motivated by greed and acted
with common purpose in perpetrating the crime.
[62]
The court has considered the personal circumstances of the appellants
as well
as the various pre-sentencing reports. The court has
satisfied itself that appropriate arrangements have been made to take
care
of the minor children and elderly parent.
[63]
In
Van
Jaarsveld
it
was stated that:
[20]
‘
While
the seriousness of the offences, particularly those involving
dishonesty, cannot be understated, the unique circumstances
of Mr van
Jaarsveld as a primary caregiver necessitate a more nuanced
consideration of the sentencing options. This Court is mindful
of the
trial court’s discretion in sentencing. However, the apparent
lack of explicit consideration of the best interests
of Mr van
Jaarsveld’s children, as mandated by s 28(2) of the
Constitution and the relevant case law, constitutes a misdirection.
This also warrants this Court’s intervention.’
[64]
In
Swanepoel
v S
(Leave
to Appeal)
[21]
the court held the following:
‘
Tritely,
where a person convicted of an offence is the primary caregiver of
minor children their best interests are of paramount
importance in
every matter concerning them. The measure of the best interests
principle has never been given definitive content
but it is necessary
that the standard be flexible as the circumstances of each case may
determine. In that regard it has been held
that when considering the
best interests of children a court must consider evidence as to their
current position to determine what
their best interests require
including evidence on the quality of their care. The paramountcy
principle does not lay down that
in all cases the direct or indirect
impact of a measure or action on children must oust, override or
unrealistically trump all
other considerations. It simply requires
that the interests of children who stand to be affected be given due
consideration.’
(Footnotes omitted.)
[65]
In
casu,
a significant part of the evidence during the
sentencing proceedings turned on the care of the minor children and
the elderly parent.
The learned magistrate was fully cognizant of the
necessary considerations with due regard to the provisions of s 28(2)
of the
Constitution. The additional orders were issued to cater for
any future complications which may arise regarding the care of the
elderly parent and the minor children. The additional orders accord
with those issued by the appeal court in
Swanepoel.
[66]
This court agrees that there are no factors which militate against
the imposition
of a custodial sentence and that there was a proper
and reasonable exercise of discretion of the sentencing court. The
court a
quo paid sufficient and informed attention to the
interests of the minor children and elderly parent. The
appellants
were shown mercy by the sentencing court as it found
substantial and compelling circumstances and also ameliorated the
sentence.
Even if I am wrong in upholding the learned
magistrate’s findings on sentence and I accept that the
additional orders
were a misdirection, on the facts and on the
record, I would not have imposed different sentences.
[67]
In
Swanepoel,
the
court was mindful of the various competing interests. It issued
the following additional orders:
[22]
‘
This
case, without question, involved highly competitive interests. In
recognition of Mr and Mrs Swanepoel's advanced ages and to
moderate
any negative impact or hardship on the minor child as much as
possible during the appellant's incarceration, this Court
may
permissibly resort to its inherent jurisdiction as upper guardian to
fulfil that duty through an appropriate order. It is considered
pragmatic, as was done by Cameron J in
MS v S
, to order the
Department of Correctional Services to ensure visitation by a social
worker and that he or she provides the department
with reports on the
child's well-being during his mother's absence.’ (Footnotes
omitted.)
[68]
This court is inclined to supplement the orders of the court a quo
and issue
a similar order to ensure the well-being of the minor
children and the elderly parent in the event that the extended family
cannot
assist in their care.
[69]
It is for these reasons that I am of the
considered view that the appeal against the sentences in respect of
each appellant ought
to be dismissed.
Order
[70]
In the result the following orders will issue:
1.
The appeal by each appellant against sentence
is dismissed.
2.
The sentence imposed by the court a quo in
respect of each appellant is confirmed save to exclude the last order
and substitute
same with the additional orders in paragraphs 3 and 4
below.
3.
Given the sentences imposed in paragraph 2
above, the Department of Social Development together with the
National Commissioner for
Correctional Services are directed to take
all appropriate steps to ensure the elderly mother of the first
appellant and the minor
children of the second, third and fourth
appellants are properly cared for in all respects during the
respective appellants’
period of imprisonment including, but
not limited to if necessary, conducting further investigations:
(a)
involving the first
appellant’s elderly mother and members of the extended family,
including the first appellant’s two
sisters, to find the best
possible way of caring for the elderly mother;
(b)
into the
wellbeing of the minor children of the second, third and fourth
appellants and to take the most appropriate measures to
ensure the
safety and wellbeing of the minor children.
4.
The
National
Commissioner for Correctional Services is to ensure:
(a)
insofar as reasonably practical, that the
second, third and fourth appellants serve their sentence at a
Department of Correctional
Service Centre / facility close to their
minor children;
(b)
that
a social worker in the employ of the Department of Correctional
Services visits the children of the second, third and fourth
appellants at least once every two months during their incarceration
and submits a report to the office of the National Commissioner
as to
whether the children are in need of care and protection as envisaged
in
s
150
of the
Children's
Act 38 of 2005
and, if so, to take the steps required by
that provision.
NAIDOO AJ
HENRIQUES J
CASE
INFORMATION
Dates
of hearing:
2
May 2025
Date
of judgment:
28
October 2025
For
the appellants:
Mr
P Jorgensen
Instructed
by:
DMI
Attorneys
1
st
Floor
94
Florida Road
Morningside
Email:
devan@dmiatt.co.za
For
the respondent:
Ms
N Letsholo
Instructed
by:
Directorate
of Public Prosecutions
KwaZulu-Natal
286
Pietermaritz Street
Private
Bag X9008
Pietermaritzburg
[1]
Record,
volume
2, at 339.
[2]
Record,
volume 2,
at
313-314.
[3]
Record,
volume 2, at 301-313.
[4]
Record,
volume 2, at 313-314.
[5]
S
v Zinn
1969
(2) SA 537
(A) (
Zinn
)
at 540G.
[6]
S
v Truyens
[2011] ZASCA 110
;
2012 (1) SACR 79
(SCA) (
Truyens
).
[7]
Hildebrand
v The State
[2015] ZASCA 174
para 10.
[8]
S
v M (Centre for Child Law as Amicus Curiae)
[2007]
ZACC 18
;
2008 (3) SA 232
(CC) para 36.
[9]
S
v Hewitt
[2016] ZASCA 100
;
2017
(1) SACR 309
(SCA) (
Hewitt
)
para 8;
S
v Sadler
2000
(1) SACR 331
(SCA) (
Sadler
)
para 8;
S
v Swart
2000
(2) SACR 566
(SCA) para 21; and
S
v Pieters
1987
(3) SA 717
(A) at 727F-H. See also,
S
v L
1998
(1) SACR 463
(SCA) at 468f; and
S
v Blank
1995
(1) SACR 62
(A) at 65h-i.
[10]
Sadler
para
10.
[11]
S
v Pillay
1977 (4) SA 531
(A) at 535E-F.
[12]
S
v Malgas
2001
(1) SACR 469
(SCA) para 12.
[13]
S
v Barnard
2004
(1) SACR 191
(SCA) para 9.
[14]
S
v Romer
[2011]
ZASCA 46
;
2011 (2) SACR 153
(SCA) para 22.
[15]
See
also
S
v Sa
lzwedel
and Others
1999
(2) SACR 586
(SCA)
para
10
;
S
v Kibido
1998
(2) SACR 213
(SCA)
at 216G-J; and
S
v Giannoulis
1975
(4) SA 867
(A)
at 873G-H.
[16]
Ntonzini
v S
[2020]
ZAECGHC 104 paras 5 and 9.
[17]
Hewitt
paras
15 and 17.
[18]
Van
Jaarsveld v S; Ras v S
[2025]
ZASCA 92
para 20 (
Van
Jaarsveld
).
[19]
S
v Packereysammy
2004
(2) SACR 169
(SCA) para 12.
[20]
Van
Jaarsveld
para 20.
[21]
Swanepoel
v S (Leave to Appeal)
[2023]
ZAECMKHC 76 (
Swanepoel
)
para 19.
[22]
Swanepoel
para 61.