S v Makhudu (208/01) [2002] ZASCA 41; [2002] 3 All SA 401 (A) (16 May 2002)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2002
>>
[2002] ZASCA 41
|

|

S v Makhudu (208/01) [2002] ZASCA 41; [2002] 3 All SA 401 (A); 2003 (1) SACR 500 (SCA) (16 May 2002)

REPORTABLE
THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 208/01
In the matter between :
YVONNE
K N MAKHUDU
Appellant
and
THE
STATE
Respondent
___________________________________________________________________________
Coram: MARAIS, FARLAM
et
NUGENT JJA
Heard: 22 MARCH 2002
Delivered:
16
MAY
2002
Appeal
against sentence – magistrate’s sentence partially reduced by
provincial division of High Court – further appeal remains
one
against magistrate’s judgment in particular circumstances of case –
behaviour of accused in court not ordinarily to be taken
into account
in aggravation of sentence.
___________________________________________________________________________
J U D G M E N T
___________________________________________________________________________
MARAIS JA/
MARAIS
JA:
[1] This
is an appeal against sentence. The appellant was convicted in the
Regional Court at Pretoria upon five counts of fraud to
which she had
pleaded guilty. She was sentenced on each of the counts to a fine of
R 5 000 or 100 days’ imprisonment, and 100
days’ imprisonment
suspended for five years on condition that she is not convicted of
fraud committed within the period of suspension.
In addition she was
sentenced in terms of
s 276
(1)(h) of the
Criminal Procedure Act 51
of 1977
to correctional supervision for 18 months. The elements of
the correctional supervision included house arrest during specified
hours
for 12 of the 18 months and the rendering of community service
without compensation for 16 hours per month for the period of 18
months.
The community service was to consist of cleaning and
gardening services to be rendered at Forest Farm, Sandton.
Participation in
a responsibility acceptance programme and a reality
confrontation programme was also ordered. She was also forbidden to
use alcohol
or drugs during the period of 18 months.
[2] An
appeal to the Transvaal Provincial Division (Claassen AJ
et
Sceales AJ) against the sentence succeeded only to the extent
that house arrest for 12 months and the prohibition of the use of
alcohol
or drugs were set aside. Leave to appeal to this Court
against the sentence as ameliorated was granted by the provincial
division.
The focus of the attack in this Court upon the sentence
was the quantum of the fines (R 25 000 in all) and the community
service
or, more specifically, the nature of that service (cleaning
and gardening).
[3] It would be as well to be clear as to whose sentence
is actually under consideration on appeal. Where a magistrate’s
sentence
is set aside in its entirety and replaced with a sentence
fundamentally different in kind, for example, a fine instead of
direct
imprisonment, no problem arises. It is obviously the
provincial division’s sentence. Where the provincial division has
dismissed
the appeal against sentence it does not become the
provincial division’s sentence and in any further appeal the court
is concerned,
not with whether in dismissing the appeal the
provincial division exercised its sentencing powers correctly or
reasonably, but with
whether the magistrate did so.
[4] Problems
may arise in situations falling between those two poles. This is
such a situation. The fine and community service which
are under
attack on appeal are but two of a number of components of a sentence
imposed by the magistrate. On appeal to the Court
a quo
those
two components were left undisturbed. However, some other components
of the sentence were eliminated. Nothing was substituted
for them so
that in the result the sentence remained fundamentally that of the
magistrate minus those components of it which the
Court
a quo
eliminated. It is implicit in what the Court
a quo
did that
it found no fault with either the decision of the magistrate to
impose the fine or his decision to impose community service
of the
kind which he did. Its decision to eliminate certain components of
the sentence must have been based upon either what it
considered to
be their inappropriateness irrespective of what the other components
or the cumulative impact of the sentence as a
whole might be, or, if
not upon their inappropriateness
per se
, upon the need to
ameliorate somehow the overall cumulative impact of a sentence
considered to be sufficiently overly severe to warrant
interference
on appeal.
[5] It
is not entirely clear upon which of these two bases the Court
a
quo
acted. It did not find that the magistrate had misdirected
himself in imposing sentence. It seems to have felt that those
components
of the sentence which it deleted were either inappropriate
or rendered the sentence as a whole too severe to be allowed to
stand.
Claassen AJ said:
“However, we are of the opinion that there is a bit
much of a sting in this case. The total amount of the
counts involved
is just almost over R2 000,00 – the five
counts to which she pleaded guilty which, in a certain sense, is not
all that
much but, at the same time, one must remember that she is a
high profile person. She had a very high profile type of job in the
modern South Africa, being concerned with affirmative action
programs, which means she has a responsibility to the community and
to the people she is involved in. Further, she was in a position of
trust, dealing with funds of a very big organisation where it
is
often easy to get away with murder, so to speak.
However, in the circumstances, we feel that there are
certain stings in this sentence which are unnecessary, and which must
be deleted,
and which creates a certain sense of shock to the court.
Mr Kotzè initially said that he opposes the
appeal but he has conceded that certain aspects thereof can be
alleviated. I
don’t think it is necessary to go into any detail.
Having said all that we feel that the sentence should
be adapted somewhat and in this regard I suggest we make the
following order:
1. The sentence of R 5 000,00 or 100 days imprisonment
on each count is confirmed.
2. The 100 days per count that was suspended is
confirmed.
As far as the community
correctional services sentence is concerned, the following order is
made:
1. The 18 months correctional supervision is confirmed.
However, the 12 months house arrest, including the exceptions
thereto, are
struck from the sentence.
2. The community service of 16 hours per month for the
full duration of 18 months is confirmed.
3. The place of community service being at the cleaning
services at Forest Farm is confirmed.
4. The accused must attend the rehabilitation programs
in paragraph 1.3.
5. Paragraph 1.5 and 1.6 of the sentence are confirmed.
6. Paragraph 1.7 is struck from the sentence, dealing
with the use of alcohol and drugs.”
[6] Regrettably, the Court
a quo
allowed the appellant’s behaviour at her trial to
influence it in considering the appeal against the sentence. It
said:
“The appellant in this
case has proved herself to be a very arrogant person. That is clear
from the record in the way she behaved
and the whole process of the
recusal application against the magistrate. It was ill-conceived and
it was arrogant and I think this
lady must just be put in her place
to a certain extent.”
[7] While the behaviour of
an accused during the trial
may
be indicative of a lack of
repentance or intended future defiance of the laws by which society
lives and therefore be a relevant factor
in considering sentence,
neither the fact that an accused’s defence is conducted in an
objectionable manner nor the fact that the
accused’s demeanour in
court is obnoxious, is a proper factor to be taken into account
unless it is of a kind which satisfactorily
establishes that the
accused is the kind of person who would best be deterred from future
criminal activity by being dealt with in
a firmer manner than would
have been appropriate if the accused was not that kind of person.
1
[8] A court should be slow
to jump to conclusions regarding an accused’s character and
reaction to punishment when such conclusions
are based solely upon
the accused’s demeanour and behaviour in court. The dangerous
result of succumbing to the temptation to
do so is well exemplified
in
R v Noble.
2
[9] The appellant,
notwithstanding her admitted fall from grace, appears to have a
somewhat exaggerated view of her own importance
and status and the
degree of respect to which she is entitled in a criminal court. It
goes without saying that courtesy is due by
a court to all who appear
before it whatever their station in life but when dealing with
self-confessed offenders who have committed
serious crimes of
dishonesty some sense of proportion is not out of place.
[10] However, her behaviour
in court did not entitle the Court
a quo
to use its sentencing
power on appeal to “put (her) in her place”. To that extent,
that court misdirected itself to a material
extent when considering
the appeal against sentence. It is not possible to say whether it
might have ameliorated the sentence even
more if it had not so
misdirected itself. This Court is obliged to consider the
magistrate’s judgment afresh for it is fundamentally
that which is
still under attack despite its amelioration by the Court
a quo
.
[11] The gravamen of the
appellant’s crimes was that she fraudulently exploited her
managerial position in Telkom to claim and obtain
payment of sums of
money to which she was not entitled. In September/October 1996 she
falsely represented that she had incurred
travelling expenses in
connection with an official trip from Pretoria to Crystal Springs
Mountain Lodge and back and claimed a total
amount of R693,00 to
which she knew she was not entitled. In February, June and July 1996
she falsely represented on each of three
occasions that a named
employee of Telkom was entitled to be provided with a ticket enabling
that person to fly from Johannesburg
to Cape Town on official
business. The tickets were provided at a cost of R611,00 per ticket.
In fact the named employees were
not intended to travel to Cape Town
on official business and the tickets were intended by the appellant
to be and were used by her
fiancé’s niece for private
purposes.
[12] The appellant was a
senior manager of Telkom’s Affirmative Action Project at the time.
It was within her power to authorise
the purchase of flight tickets
for use by employees when travelling on Telkom business. At the time
of her trial she was conducting
her own practice as a consultant in
industrial relations in which discipline she was the holder of a
doctorate. She was in receipt
of an income of approximately R20
000,00 per month. She had no previous convictions.
[13] While the magistrate’s
reference to the appellant as having been on “the gravy train”
and his statement that others on
that “train” needed to be
deterred from behaving as the appellant had done, were uncalled for,
I do not consider that they amount
to a misdirection of sufficient
materiality to justify me in regarding myself as being at large to
impose sentence entirely afresh.
It is quite clear that the
magistrate was responding to the need to deal firmly with a
well-paid white collar employee in a
position of trust who abused her
position by defrauding her employer. White collar crime had become
notoriously prevalent and courts
of high authority had lamented a
tendency on the part of some courts to impose sentences which were
rightly generally regarded as
being too lenient.
[14] He was dealing with a
person who could well afford to pay for the trip which she undertook
and the flight tickets which she fraudulently
authorized and who had
resorted to that dishonest conduct on a number of different
occasions. She thus had more than ample time
for reflection about
the criminality of what she proposed to do and cannot claim to have
succumbed to temptation in a rare, uncharacteristic,
and transient
moment of moral weakness. The magistrate
mero motu
called
for a report as to the appellant’s suitability for
correctional supervision and did not simply in knee-jerk
like
fashion impose direct imprisonment. The fine he imposed may
cumulatively appear heavy (R25 000,00) when compared
with the
amount of money involved in the charges (R2 526,00) but coolly
calculated and repeated fraud is not to be taken lightly
and R25
000,00 is less than the appellant’s after tax earnings for two
months.
[15] The correctional
supervision and community service cannot be said to be unwarranted in
principle and what might have been regarded
as inappropriate or
uncalled for aspects of the conditions set have been eliminated. The
further complaint about the nature of the
community service to be
rendered is not open to the appellant when, as was the case, her
legal representative not only failed to
question its appropriateness
but actually asked clarificatory questions about it which indicated
acquiescence in the proposal. It
is, in any event, not manifestly
inappropriate.
[16] While it may be that
the sentence in its totality is severer than some might have imposed,
it is by no means unreasonable and
I can find no justification for
interfering any further with it than has already been done. The
appeal is dismissed.
__________________________
R M MARAIS
JUDGE OF
APPEAL
FARLAM JA )
NUGENT JA ) CONCUR
1
1
See
for example
R v Tazwigwira
,
1949 (2) SA 656
(SR) at 658;
R
v Dhlamini
, 1954 (2) PH, H131 (N);
R v Noble
, 1956 (1)
PH H 75 (SR);
R v Motaung
,
1952 (3) SA 755
(O);
R v
Piniyasi
, 1948 (2) PH,H 159 (SR);
R v Mongamie
, 1949
(1) PH,H57 (T);
R v Booi
, 1943 (2) PH,H175 (O);
R v
Chazangepo
, 1943 (2) SR 129; 1943 (2) PH,H163 (SR);
R v
Klein
,
1942 TPD 263
;
R v Mtataung
,
1959 (1) SA 799
(T).
2
2
Supra, note 1.