IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
Case No.: CA&R 233/2024
In the matter between:
VIOLET NONTSIKELELO SISHUBA Appellant
and
THE STATE Respondent
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JUDGMENT
________________________________________________________________
RUSI J
[1] The appellant, a 41 -year-old female is the former employee of Nedbank
in its Makhanda Branch (the Bank). Her employment was terminated in 2021
following the discovery of her fraudulent activities whereby she
misappropriated the amount of more than R3 million from the Bank. She was
subsequently arraigned in the Gqeberha Regional Court on 40 counts of fr aud
and 5 counts of money laundering. On 14 June 2024 and on the basis of her plea
of guilty in terms of section 112 of the Criminal Procedure Act 51 of 1977, she
was convicted of all 45 counts.
[2] In respect of count 37 the appellant misappropriated R127 000.00, and R
150 000.00 in respect of count 40. In misappropriating the amounts in counts 36
to 40, she acted in concert with her erstwhile co -accused, one Jenicquil Gavanic
Nelson (Nelson). The fact that the individual amounts involved in counts 37 and
40 exceeded R100 000.00 and the appellant acted in the furtherance of common
purpose with Nelson, brought the two counts within the ambit of the minimum
sentences prescribed in section 51(2) of the Criminal Law Amendment Act 105
of 1997 (the CLAA).
[3] In terms of section 51(2) of the CLAA read with Part 2 of Schedule 2, the
sentence prescribed for the offences in counts 37 and 40 is a minimum of 15
years’ imprisonment for a first offender, 20 years for a second offender, and 25
years for a third and subse quent offender. These prescribed minimum sentences
may be departed from where the court is satisfied that there exist compelling
and substantial circumstances warranting a lesser sentence. This is in terms of
section 51(3) of the CLAA.
[4] On 06 August 20 24 and after finding that compelling and substantial
circumstances existed which justified a deviation from the prescribed sentence
of 15 years’ imprisonment in respect of counts 37 and 40, the court a quo
imposed 8 years’ imprisonment in respect of count 37, and 10 years’
imprisonment in respect of count 40. Furthermore, counts 1 to 36; and counts 38
and 39 were taken as one for the purposes of sentence and in their regard, the
appellant was sentenced to 6 years’ imprisonment. Likewise, counts 41 to 45
were taken as one for the purposes of sentence and the appellant was sentenced
to 4 years’ imprisonment.
[5] The learned Regional Magistrate further ordered that the sentences
imposed in respect of counts 1 to 36; counts 38 and 39; and counts 41 to 45
shall run concurrently with the sentence imposed in respect of count 40. No
concurrency was ordered in respect of the sentences imposed on counts 37 and
40. This resulted in an effective sentence of 18 years’ imprisonment.
[6] The appellant now appeals against the cumulative sentence of 18 years’
imprisonment. The appeal is with the leave of this Court on petition. The
respondent supports the cumulative sentence imposed on the appellant.
The factual background
[7] These are the facts on which the appellant was convicted based on her
plea of guilty: the offences were committed between 30 July and 18 August
2021 at the Makhanda Branch of Nedbank. On diverse occasions, the appellant
made false records of inter teller cash in and inter teller cash out transactions by
means of which she misappropriated the amount of R3 846 497.17. These
unlawful transactions were made within a period of 17 business days. In some
instances, the unlawful transactions were made multiple time s a day and
substantial amounts were misappropriated. Regarding counts 36 to 40, she made
similar inter teller transactions, but in those instances, she acted in concert with
Nelson who was arraigned as the second accused in the court a quo, and who
was no t an employee of Nedbank when the offences were committed. The
appellant transferred the amounts misappropriated in respect of counts 36 to 40
to Nelson. The arrangement between the two of them was that Nelson would in
turn transfer the amounts to various accounts held by the appellant. Resulting
from her complicity with Nelson in the commission of these offences in the
manner described, she further pleaded guilty to 5 counts of money laundering as
counts 41 to 45.
[8] It was submitted on behalf of the app ellant in mitigation of sentence that
she committed the offences whilst she was a participant in the Bitcoin
Investment Scheme. She heard of a new investment opportunity from Nelson,
and she accordingly joined. All money deposits within the scheme were don e
electronically and communication was via a WhatsApp group that one of the
persons behind the scheme controlled.
[9] She used her savings to participate in the scheme and borrowed monies
from her family and friends. She was informed that she would be eli gible for a
return of 10 000 US dollars. When the time came for her to withdraw her
returns, she was informed by those operating the scheme via WhatsApp
messages that she needed to pay a fee of R18 000.00 in order to ‘activate the
payment of her returns.’ She had by then exhausted all her financial resources. It
was at that point that she misappropriated monies from the Bank as
aforementioned and agreed with Nelson that the monies she misappropriated
would be deposited into various accounts held in her name.
[10] It was further submitted on the appellant’s behalf that her criminal
conduct was actuated by the need to provide for her two minor children one of
whom was her 9 -year-old daughter. At the time, the appellant’s sister was the
child’s primary care gi ver. Further, that the appellant was a victim of a scam,
and she had no previous convictions. She expressed remorse by confessing her
criminal conduct to her employer, pleading guilty promptly; and by offering her
pension benefit of pension benefit of R205 742.80 to make good the Bank’s
loss.
[11] In aggravation of sentence, the prosecutor emphasized that the appellant
did not volunteer the information of her wrongdoing to her employer but
confessed to her supervisor after the crimes were discovered through an
investigation by the Bank. Her last transaction which was on 18 August 2021.
The prosecutor further placed emphasis on the loss suffered by the Bank and the
fact that the appellant’s pension benefit of R205 742.80, which was her only
means of repaying the misappropriated monies, covered a fraction of what the
Bank lost. It was the prosecutor’s submission, further, that, the offence was
motivated by the appellant’s greed since she earned a salary of R10 000.00 a
month as the Bank’s employee. It was furth er submitted that the appellant’s
supervisor lost her employment resulting from her unlawful conduct.
The grounds of appeal
[12] The appellant challenges the sentence imposed on her on two grounds.
Firstly, she contends that the sentence imposed on counts 37 and 40 is severely
excessive, disproportionate to the crimes she was convicted of, her personal
circumstances and the interests of society, and it induces a sense of shock.
Secondly, that the court a quo failed to consider the cumulative effect of the
sentences imposed on counts 37 and 40.
The findings of the court a quo
[13] In imposing the sentence now appealed against, the learned Regional
Magistrate reasoned, that, the fact that the appellant committed the offences out
of greed; her breach of the position of trust and misuse of her expertise and skill
in banking to defraud the Bank stood as aggravating factors. She further
considered the fact that the appellant used her knowledge of the Bank’s system
to manipulate it. Even though the sentence of corr ectional supervision was
recommended, she reasoned that it was inadequate as a sentencing option and
lacked the appropriate punitive impact demanded by the gravity of the offences;
and it did not carry the requisite deterrent effect. From the court a quo’s
judgment on sentence, nothing is said regarding the amelioration of the
cumulative effect of the sentences imposed on counts 37 and 40.
Counsel’ s submissions on appeal
[14] Mr Sojada submitted that while it cannot be denied that the offences of
which the appellant was convicted are serious and warranted a substantial term
of imprisonment, the court a quo ought to have imposed lesser sentences in
respect of counts 37 and 40 and further have regard to the cumulative effect of
the sentences it imposed on each of these two counts. In this regard, he
submitted that a part of the cumulative sentence of 18 years’ imprisonment
ought to have been suspended, or the court should have ordered further
concurrency between the two sentences. Mr Sojada was constrained to
acknowledge that the appellant did not admit guilt upfront, and that her criminal
conduct was uncovered by an investigation that the Bank conducted. He
however urged us to consider the fact that the appellant was a victim of a scam.
[15] Ms De Klerk submitted that the sentences imposed on counts 37 and 40
are proportionate to the seriousness of the offences in those counts. Further, that
the court a quo properly exercised its discretion in not ordering further
concurrency in respect of these two counts, and therefore, there is no reason to
interfere with the sentences imposed. It was Ms De Klerk’s submission further,
that, not all the amount that the appellant misappropriated was recovered and
that regard must be had to the fact that she did not volunteer th e information
regarding her criminal conduct, but it was discovered following an investigation
by the Bank. Ms De Klerk took the view that a cumulative sentence of 10 years’
imprisonment would not be appropriate for the totality of the appellant’s
criminal conduct.
The legal principles
[16] The imposition of sentence is the prerogative of the trial court. An
appellate court may not interfere with this discretion merely because it would
have imposed a different sentence. It 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 sentence. The trial court’s discretion is regarded
as havi ng been unreasonably exercised 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. This is trite law. 1 As the Court
observed in, Mokela v S, 2 this salutary principle implies that the appeal court
does not enjoy unlimited powers to interfere with the terms and conditions
imposed by a sentencing court on how or when the sentence is to be served.3
Discussion
[17] The incidence of white -collar crime in South Africa continues unabated
with all its adverse effects on the country’s economy. In the context of financial
institutions, it has damaging effects on the trust and stability on which these
institutions are built. Apart from the immediate financial loss, the reputational
damage it brings about erodes the public trust in the affected institutions.
[18] There can be no controversy regarding the particularly vulnerable
position that the Bank was in relation to the appellant. The appellant had been in
the position of trust in relation to the Bank and was entrusted with an important
function which entailed the balancing of the amounts received from and
withdrawn by the Bank’s clients in the course of the busine ss day. She
misappropriated substantial amounts of money, and the discovery of her
unlawful conduct did not come about through her voluntary disclosure or
admission. All this underscores the seriousness of the crimes that the appellant
committed.
[19] It is not without significance that in respect of counts 36 to 40, the
appellant was determined to maximize her chances of success in her unlawful
enterprise by making common purpose with Nelson. Her criminal conduct
affected not only the Bank, but her sup ervisor lost her employment upon the
imputation to her, of a failure in her oversight role in relation to the appellant.
1 S v Hewitt 2017 (1) SACR 309 (SCA) at para 8; see also S v Malgas (117/2000) [2001] ZASCA 30; [2001] 3
All SA 220 (A); 2001 (2) SA 1222 (SCA); 2001 (1) SACR 469 (SCA) (19 March 2001) ( Malgas), para 12; S v
Sadler 2000 (1) SACR 331 (SCA) para 8.
Sadler 2000 (1) SACR 331 (SCA) para 8.
2 Mokela v S (135/11) [2011] ZASCA 166; 2012 (1) SACR 431 (SCA) (29 September 2011).
3 Id, para 9.
[20] The learned Regional Magistrate must be commended for her careful
analysis of the facts placed before her and her coherent applica tion of the
sentencing principles in general and in the context of the commercial crimes
under consideration in this appeal. Her finding that there were compelling and
substantial circumstances that justified the imposition of a lesser sentence than
that p rescribed in respect of counts 37 and 40 was correctly made. It bears
emphasis, however, that once the learned Regional Magistrate made this
finding, she was no longer bound by the strictures of the prescribed minimum
sentences. It was incumbent upon her t o consider the traditional triad of
sentencing. This entailed the balancing of the nature of the offence, the personal
circumstances of the appellant, and the interests of the society, in determining
what sentence would then be appropriate.
[21] It is indeed so, that even where compelling and substantial circumstances
are found to exist, the right balance must be attained between the crime, the
offender and the circumstances of the case. The result is that too lenient
sentences or severely harsh sentences w ould result in an injustice, and this
would be a ground for interference on appeal. The sentencing court is still
required to make a value judgment regarding what a just sentence would be on
the totality of the facts of each case. This principle was enunci ated in S v
Samuels4 as follows:
‘An enlightened and just penal policy requires consideration of a broad range of sentencing
options from which an appropriate option can be selected that best fits the unique
circumstances of the case before the court. It is trite that the determination of an appropriate
sentence requires that proper regard be had to the well known triad of the crime, the offender
and the interests of society. After all any sentence must be individualised and each matter
must be dealt with on its own peculiar facts. It must also in fitting cases be tempered with
must be dealt with on its own peculiar facts. It must also in fitting cases be tempered with
mercy. Circumstances vary and punishment must ultimately fit the true seriousness of the
4 2011 (1) SACR 9 (SCA).
crime. The interests of society are never well served by too harsh or too lenient a sentence. A
balance has to be struck.’5
[22] The record indicates that the learned Regional Magistrate painstakingly
considered previous decisions in an attempt to achieve consistency in her
sentencing.6 While this indicates that the learned Magistrate was acutely alive to
the need to achieve the right balance between the crimes committed, the
personal circumstances of the offender and the interests of society, sight must
not be lost of the fact that uniformity is subservient to the sentencing court’s
discretion. To my mind, this accords well with the principle that sentences are to
be individualized while preserving the interplay between consistency and
discretion.
[23] It is by now trite that the fact t hat an offence is punishable by the
prescribed minimum sentence of 15 years does not in and of itself mean that the
court should by rote impose severely long sentences. With that said, we accept
that standing alone, counts 37 and 40 are serious in nature f or the same reason
that in committing them, the appellant acted in concert with another, and the
amounts misappropriated exceeded R100 000.00. Nelson also benefited from
the appellant’s criminal conduct.
[24] In S v Rawat,7 the appellant, also an employee of the Bank, who had been
convicted of misappropriating R402 000.00 from it, was sentenced by the court
a quo to 7 years’ imprisonment for that single count of fraud. In refusing his
appeal against the court a quo’s refusal of bail pending appeal against this
5 Id, para 9.
6 The learned Regional Magistrate referred to S v De Sousa [2009] 1 All SA 26 (SCA), where the appellant had
been convicted of 13 counts of fraud involving a total amount of R1 000 228.94. All counts having been taken
as one for the purposes of sentence, th e appellant was sentenced to a term of imprisonment for a period of 7½
years. On appeal, this sentence was reduced to 4 years’ imprisonment. In S v Pretorius and Another [2009] 1 All
SA 567 (SCA), the Court confirmed the sentence of 5 years’ imprisonment i mposed on each of the appellants,
who had been convicted of 91 counts of fraud by the regional court on their plea of guilty. The appellants had
defrauded the complainant, an insurance company for which they fitted windscreens. They made a profit of
R122 309.00 over a year by fitting windscreens of poor quality, yet they claimed a fee for the expensive product.
7 1999 (2) SACR 398 (W).
sentence, the appellate court took into consideration the fact that the appellant in
that case had breached the position of trust he held towards the Bank and acted
dishonestly.
[25] In Burgess,8 this Court reduced the sentence of 15 years’ imprison ment
imposed on the appellant for 972 counts of fraud, which was committed over a
number of years where more R13 million was misappropriated from the
employer to 10 years’ imprisonment.
[26] The appellant in the matter before us committed multiple acts of
dishonesty over a period of 17 business days, which saw the Bank suffer loss in
the amount already stated. On some occasions, multiple unlawful transactions
were made in a single day. Her deliberateness in manipulating the Bank’s
system and in planning wa ys to maximize the success prospects of her illicit
venture by enlisting the help of Nelson in counts 37 and 40, apart from the
substantial amount she misappropriated, indeed aggravated the offences in these
two counts. For this reason, we have no reason t o fault the individual sentences
that the court a quo imposed on the appellants in respect of counts 37 and 40.
[27] That being the case, as held in Johaar and Another v S, 9 where there is a
multiplicity of crimes, the court has a duty to consider the to tality of the
criminal conduct in question and ask itself what the appropriate sentence is
for all the crimes combined.10 This is to prevent unjustifiably servere sentences.
The source of the court’s discretion in ordering the concurrency of sentences it
8 Burgess v S (CA&R58/2022) [2023] ZAECMKHC 83; 2023 (2) SACR 558 (ECMk) (8 August 2023). In that
case, the appellant, 65 y ears old, was convicted on her plea of guilty of 972 counts of fraud which she
committed while she was an employee of the Eastern Cape Training Centre, where she was employed as a
creditor’s clerk. She defrauded the Training Centre an amount in excess of R 13 million. The offence was
committed over a number of years from 2004. After her unlawful activities were uncovered, she dishonestly
disclosed a lesser amount of R2.6 million and signed an acknowledgment of debt for this lesser amount.
9 Johaar and Anothe r v S (652/08) [2009] ZASCA 46; 2010 (1) SACR 23 (SCA); [2009] 3 All SA 520 (SCA)
(21 May 2009).
10 Id, para 14 and 16; see also Dlamini v S 2012 (2) SACR 1 (SCA) para 33; S v Whitehead 1970 (4) SA 44 (A)
at 438F - 440; S v Mthethwa 2015 (1) SACR 302 (GP) para 21.
has imposed, or which have previously been imposed is section 280(2) of the
CPA which provides that:
‘(2) Such punishments, when consisting of imprisonment, shall commence the one after
the expiration, setting aside or remission of the other, in such order as the court may
direct, unless the court directs that such sentences of imprisonment shall run
concurrently.’
[28] The discretion given to the sentencing court by section 280(2) still
requires a balancing of the crime, the offender and the interests of society. The
starting point is that every offence justifies its own punishment. Hence, in the
exercise of its discretion, the court is bound to ensure that the cumulative
sentence is not too severe, and that concurrency does not undermine the
seriousness of the offence and the legitimate expectations of society in how the
law punishes offenders.
[29] It was ar gued that the fact that the learned Regional Magistrate did not
give her reasons for not ordering concurrency between the sentences in counts
37 and 40 does not mean that she did not consider it. 11 While this is the correct
position of the law, this argument cannot be in the context of the present appeal.
For it must still appear from the record that this aspect was given consideration
and that the court exercised its discretion reasonably.
[30] The undisputed fact that all the 45 counts were committed wit hin a short
period of time in a matter of a day or two in between each unlawful transfer,
ought to have been taken into consideration in determining the appropriateness
of the cumulative sentence imposed in respect of counts 37 and 40. The
prosecution accepted the fact that the appellant had fallen victim to a scam. But
as Ms De Klerk correctly argued, this must be balanced with the appellant’s own
greed. That greed is indeed evident from the fact that the appellant
misappropriated the Bank’s funds over a n umber of days, and at times she
11 S v L 1998 (1) SACR 643 (A) 468c-d.
unashamedly made several unlawful transactions in a day. With that being said,
the amounts in counts 37 and 40 are only a fraction of the total amount
misappropriated by the appellant acting alone and in respect of which the
multiple sentences were taken as one for the purposes of sentence, resulting in
the sentence of 6 years’ imprisonment for counts 1 to 36; and counts 38 and 39.
[31] When regard is had to these factors, it becomes difficult to make the
finding that the learned Regional Magistrate exercised her sentencing discretion
reasonably in failing to reduce the effective sentence of 18 years’ imprisonment
on counts 37 and 40. She fell short in applying herself to the question whether
this cumulative sentence was appr opriate in the circumstances of the present
case.
[32] In Moswathupa v S 12 Theron JA (as she then was) cautioned that when
dealing with multiple offences a court must not lose sight of the fact that the
aggregate penalty must not be unduly severe, and tha t wrongdoers must not be
visited with punishments to the point of being broken.
[33] Notwithstanding the fact that counts 37 and 40 attracted 15 years’
imprisonment each as the minimum term of imprisonment that could be
imposed in terms of the CLAA, when t he totality of the appellant’s criminal
conduct is considered, the cumulative period of 18 years’ imprisonment for the
two counts is unjustifiably excessive. This aspect of the sentence imposed by
the court a quo must accordingly be interfered with.
[34] There are at least two ways in which the court a quo should have
prevented the unjustified accumulation of the sentences in counts 37 and 40 – to
order that the lesser term of imprisonment run concurrently with the longer
term, or to suspend a portion of the sentence on appropriate conditions. The
former method commends itself to us for the reasons I set forth below
12 Moswathupa v S (168/11) [2011] ZASCA 172; 2012 (1) SACR 259 (SCA) (29 September 2011), at para 8-9.
[35] When the appellant committed the offences forming the subject of this
appeal, she had already been a participant in an investment sch eme unrelated to
the investment scam that she fell victim of. She suffered loss of her own
resulting from her criminal conduct. She lost her employment and had to
relinquish her pension savings to pay off a portion of the mount that she
misappropriated from Bank. Moreover, the substantial period of imprisonment
has removed the appellant from her family which includes her two minor
children. The term of 10 years’ imprisonment is still adequate as form of
retribution and deterrence which, in the context of th e present case, ought to be
at the forefront due to the seriousness of the offences.
[36] For all the foregoing reasons, I would make the following order:
1. The appeal succeeds to the extent that the sentence imposed on the
appellant in respect of counts 37 and 40, is varied as set out below:
‘(a) The sentence of 8 years’ imprisonment imposed in respect of count
37 shall run concurrently with the sentence of 10 years’
imprisonment imposed on count 40.
(b) The effective sentence to be served by the accused is a period of 10
years’ imprisonment.’
2. The variation in paragraph 1. above is antedated to 06 August 2024.
____________________
L. RUSI
JUDGE OF THE HIGH COURT
MTSHABE AJ:
I agree.
__________________
NR MTSHABE
JUDGE OF THE HIGH COURT (ACTING)
Appearances:
Counsel for the appellant : VM Sojada
Legal Aid South Africa
Makhanda Justice Centre
Counsel for the respondent : U L De Klerk
Office of the Director of Public
Prosecutions, Makhanda
Date heard: 15 October 2025
Date delivered: 10 March 2026