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[2014] ZAECGHC 108
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Plaatjies v S (CA & R 25/14) [2014] ZAECGHC 108 (11 November 2014)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GRAHAMSTOWN)
Case No. CA & R 25/14
Heard on: 05 November 2014
Delivered on: 11 December 2014
In the matter between:
LINDALL PLAATJIES............................................................................................................Appellant
and
THE STATE............................................................................................................................Respondent
JUDGMENT
Brooks AJ:
[1] On 13 October 2011 the appellant pleaded guilty to a charge of fraud. She handed in a written statement pursuant to the provisions of s112 (2) of the Criminal Procedure Act 51 of 1977 (the CPA). It is apparent there from that the appellant had never intended to derive any personal financial benefit from her fraudulent activity. Nor did any personal financial benefit accrue to her. The appellant was motivated solely by a desire to ensure that the funding of the non-governmental organisation of which she was the treasurer should continue. It was this desire which exposed the appellant to the manipulative demands of a person responsible for the allocation of funding. The threat used was a cessation of funding unless the appellant complied with instructions to withdraw large amounts of cash from the organisation and to pay them over to the person responsible for the allocation of funding. The prosecution accepted the facts set out in the statement as the basis for the further conduct of the matter. The conviction of the appellant followed.
[2] Both the prosecution and the appellant led evidence in respect of sentence. It will be necessary to refer thereto in due course. After hearing that evidence, the magistrate called witnesses to resolve conflicts apparent in the content of different reports placed before him earlier during evidence.
[3] After hearing argument, the magistrate directed that the appellant undergo direct imprisonment for a period of eight years.
[4] The magistrate refused an application for leave to appeal. Such leave was granted on petition to the Judge President and the matter comes before this court accordingly.
[5] It is trite that a court of appeal is not free to interfere with the sentencing discretion of a trial court.[1] It will do so only in circumstances where there has been a material misdirection by the trial court in the exercise of its sentencing discretion or where the disparity between the sentence imposed by the trial court and the sentence which the appeal court would have imposed had it been the trial court, is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate.” [2]
[6] On sentence the prosecution led evidence from one Daniel Swarts, a social work manager employed by the Department of Social Development. It is apparent therefrom that funds paid by this Department to Ethembeni Community Organisation, of which the appellant was the treasurer, were partly siphoned off by the appellant’s fraud and paid over to one Kila, who was also employed by the Department of Social Development. The fraudulent activity of the appellant took place on a number of occasions during the period October 2007 to June 2009. Swarts explained that Ethembeni is a home community based care centre responsible for the distribution of funds to beneficiaries who are infected with or affected by HIV and AIDS and to other vulnerable individuals. He identified Kila as a very strong, manipulative and self-centred person with whom some employees of the Department of Social Development had sometimes experienced difficulties within the work environment. He testified further to the full cooperation from the appellant in the investigation of the circumstances of her fraud and her participation in the disciplinary hearing to which Kila had been subjected. He stated that he had learned during the whole process that the appellant tried to play a meaningful role in community development.
[7] By agreement with the appellant’s legal representative, the prosecution handed in a report prepared in terms of s 276 A (1) (a) of the CPA by one M Butoi, a social worker employed by the Department of Correctional Services. The report addressed the question of the suitability of the appellant as a candidate for correctional supervision. Dated 22 November 2011, it identified the appellant then as 42 years of age, presumably anticipating the appellant’s 42nd birthday on 20 December 2011 by about a month. It recorded that she is married with two minor children then aged 6 and 4 respectively. Judging by their dates of birth, they would now be 9 and 7. The appellant also had children from a previous relationship who would now be 23 and 20 years old respectively.
[8] In her report, Butoi recorded that the appellant’s husband is supportive of her and is willing to do whatever it takes to assist her in the process of rehabilitation. The family is now financially dependent upon his income from his employment with Kouga Municipality. According to Butoi, the appellant and her husband experience marital difficulties only when the appellant’s husband abuses alcohol. The report records that he is prepared to stop his habit of abusing alcohol in order to be a better support system for his wife. Butoi concluded her report with the recommendation that correctional supervision would be an appropriate sentence option in the appellant’s circumstances.
[9] The prosecution also led the evidence of one N A Seyisi, a senior probation officer employed by the Department of Social Development. Her evidence addressed the content of a written report which she had prepared on the psychosocial circumstances of the appellant. A copy of both that report, and an earlier report which she had prepared, were handed in as an exhibit. Both reports recommended direct imprisonment as an appropriate sentence. The earlier report refers to the marital problems which are caused by the appellant’s husband abusing alcohol. It also records a statement by the appellant’s husband to the effect that he cannot look after the appellant’s children himself and cannot take them to his family in Port Elizabeth because his parents are old and sickly. In the earlier report, Seyisi recorded a statement by the appellant’s parents to the effect that they cannot look after the appellant’s children because the appellant’s father had then just had a heart operation and her mother is diabetic and asthmatic. The desire by the appellant to look after her own children is recorded in the earlier report.
[10] Seyisi’s later report contains material which has its origin in an interview with one of the senior members of Kouga Municipality with whom the appellant’s husband is employed. The material suggests that the appellant’s husband works hard in a very responsible and demanding position. He was reported as always being punctual and sober when presenting for work. The source of the information claimed that the appellant’s husband is a good and loving father who is not arrogant or abusive. The three youngest children born to the appellant appear to have been interviewed. The later report records that none of these three children wish to stay with the appellant’s husband. Their reasons all relate to alcohol abuse and associated aggressive behaviour on his part. Notwithstanding the record of these views having been expressed, the evaluation in Seyisi’s later report concludes that the youngest two children are “close to their father as there is nothing bad they reported about him”. The evaluation records the contradiction between reports by personnel in the employ of Kouga Municipality about the appellant’s husband being consistently sober even when working over weekends and reports by the children that he abuses alcohol. The evaluation also records the statement by the appellant’s husband that he cannot take care of the children, but Seyisi dismisses the statement. She opines that the appellant’s husband cannot just make such a statement as he has a legal obligation to take care of the children and “does not have a valid reason why he cannot fulfil this task”.
[11] The appellant obtained a report from a social worker in private practice, one Melany Van Rooyen. She gave evidence in support of the content of her report. It was plain from her investigations and interviews that the appellant’s marriage is under severe strain, mainly due to admitted alcohol abuse and domestic violence on the part of the appellant’s husband. The appellant admitted to being caught up in the cycle of violence and unable to leave the marriage because of her financial dependence upon her husband. Van Rooyen dealt extensively with the position of the appellant’s children against this background. She identified that the children’s primary attachment is to their mother, her husband’s abuse of alcohol having had a negative impact upon his ability to nurture them and a detrimental impact upon his relationship with them as they are fearful of him when he is under the influence of alcohol. The appellant’s husband had developed negative spending habits, withholding finances from his wife and absenting himself from the family home over weekends, when he travels to Port Elizabeth to spend time with friends and family. This practice often leaves him unable to attend work on a Monday morning.
[12] Van Rooyen’s report identified the direct supervisor of the appellant’s husband at work as being one Nelson. He had described the appellant’s husband as very unstable at work and in need of treatment for his abuse of alcohol. His absenteeism is frequent and is associated with weekends and paydays, after which he sometimes does not attend work for three to four days at a time. Nelson expressed the view that disciplinary action at the hands of Kouga Municipality was on the cards for the appellant’s husband.
[13] At the end of a very full and comprehensive report, Van Rooyen expressed the view that a sentence of correctional supervision in terms of s 276 (1)(h) of the CPA would be the most appropriate sentence in all the circumstances of the matter.
[14] After hearing initial argument on the appropriate sentence to be imposed, the magistrate himself called two witnesses with the stated purpose of determining which of the “conflicting versions”, as he put it, evident in the reports handed in, should be accepted.
[15] The first of these witnesses was the appellant’s husband. He confirmed his marital status and the ages of the two youngest children. He admitted to having a problem related to the consumption of alcohol when he gets home from work, claiming that he has misbehaved and that the children do not like him when he is under the influence of alcohol. In answer to a direct question on the point, he stated unequivocally that he cannot take responsibility for the care of the minor children because most of the time he is not at home, he is at work, and when he returns home there is no “understanding” between him and the children. Moreover, they are usually asleep when he arrives home. Combined with his alcohol problem, in his view this means he cannot be expected to take care of the children. He confirmed that the alcohol problem has affected his work. He also confirmed that the children are deeply attached to their mother.
[16] The second court witness was Manie Nelson, a superintendent in the employ of Kouga Municipality under whom the appellant’s husband works. He stated that attendance at work by the appellant’s husband was unacceptably erratic. He blamed his alcohol problem as the cause. He stated further that if he, Nelson, had followed correct procedures, the appellant’s husband would have been fired long ago. However, the workers’ union representatives had begged him not to allow the appellant’s husband to be dismissed. Their concern was for the financial welfare of the family.
[17] Notwithstanding the direct testimony from the appellant’s husband and his superior, Nelson, when the magistrate summarised the evidence he stated that the appellant’s husband would be in a position to see to the needs of the minor children and any emergencies which may arise involving them. He found that the appellant’s husband was adamant that the children should not be placed in foster care. In making that finding he was correct. However, he also found that the appellant’s husband would provide the necessary care for the children. This finding was not correct. It is not supported by the evidence. In my view, this finding constitutes a misdirection on the part of the magistrate.
[18] The magistrate also found that on the evidence of the employer, it is clear that the appellant’s husband is secure in his employment. This finding is not supported by the evidence of Nelson. That witness told the court about the history of the survival of the appellant’s husband as an employee of Kouga Municipality. He gave no assurances about the security of the appellant’s husband as an employee in the future. His evidence of the effect of the alcohol problem with which the appellant’s husband is burdened upon his performance at work would militate against any interpretation of his evidence which suggests that he gave an undertaking of security of tenure. In my view, the magistrate misdirected himself in making the finding which he did.
[19] Further misdirection is evident in the magistrate’s conclusions about the circumstances in which the children are nurtured. He appears to have ignored the extensive analysis in the report by Van Rooyen, also contained in her evidence, which shows that the minor children are heavily dependent upon their mother, the appellant, for their daily nurture and security. Understandably, they have a very negative relationship with the appellant’s husband, whom they see frequently in an intoxicated and abusive condition and of whom they are afraid. Against the extensive and detailed evidence about these dynamics, the magistrate’s conclusion that the appellant is not exclusively burdened with the responsibility of the children cannot withstand scrutiny. Ignoring all the evidence to the contrary as it does, this conclusion constitutes a misdirection on the part of the magistrate.
[20] Further misdirection on the part of the magistrate is evident in his brief consideration of correctional supervision as a sentencing option. He identified that the report of the social worker, Seyisi, did not recommend correctional supervision. However, he does not consider the other reports and evidence which do make this recommendation before rejecting correctional supervision as a sentencing option which may be appropriate in all the circumstances of this case. Plainly, he ought to have done so.[3]
[21] As a direct consequence of the misdirections demonstrated in the magistrate’s approach to the evidence, he concluded that a non-custodial sentence is therefore not necessary to ensure the nurturing of the minor children. He stated further that a custodial sentence will not inappropriately compromise the best interests of the children. Moreover, he stated that none of the reports before court, or the evidence, suggest that the fundamental needs or the basic interests of the children will be neglected if their mother were to be incarcerated. In my view, these conclusions find no foundation in a proper analysis of the various reports in the light of the evidence led.
[22] As a result of the substantial misdirections on the part of the magistrate, this court is entitled to interfere with his sentencing discretion and to revisit the identification of a sentence which is appropriate in all the circumstances of this matter.
[23] It is appropriate to record at this point that the facts in this matter differ remarkably from those usually present in cases involving charges of fraud. The fact that the appellant derived no personal financial benefit from her fraudulent activity and was motivated solely by a desire to ensure a secure stream of funding for Ethembeni are strong mitigating factors. They provide a strong foundation for finding that a non-custodial sentence would be appropriate in the circumstances of this matter. However, the direction taken in the proceedings in the court below concentrated on the appellant’s personal circumstances, and particularly the effect which her imprisonment might have upon her two minor children. In my view, it is desirable, for the sake of completeness, to retain most of the resultant evidence for consideration by this court of what would be an appropriate sentence.
[24] In my view, for the purposes of establishing an evidential basis upon which consideration should be given to an appropriate sentence in this matter, the evidence and reports emanating from Seyisi should be ignored. Not only are there contradictions recorded within the reports themselves, but the content is inconsistent with other evidence led before the magistrate, including the evidence of the appellant’s husband and Nelson, on the important question of the extent to which the ability of the appellant’s husband to care properly for the minor children is hampered by his abuse of alcohol. Notably, the individual who provided much of the information alleging the consistent state of sobriety demonstrated by the appellant’s husband at work was never called to testify in the matter. It is appropriate to exclude the reports prepared by Seyisi, and her evidence based thereon, in favour of the retention of the remaining evidence.
[25] For the purpose of the identification of an appropriate sentence, in my view the following factors which emerge from the evidence must be taken into account:
25.1 The appellant’s fraudulent activity was prompted by the manipulative pressure brought to bear upon her by an employee in the Department of Social Development, Kila, who used as a threat to gain compliance by the appellant with her demands the prospect of the cessation of funding for the home community based care centre of which the appellant was treasurer;
25.2 The appellant has tried to play a meaningful role in community development. This appears to have made her vulnerable to the manipulative demands of Kila. Her desire to ensure ongoing funding for Ethembeni seems to have provided Kila with an ideal opportunity to bring about her fraudulent activity;
25.3 There is no direct evidence of the appellant deriving any financial benefit from her fraud;
25.4 The appellant gave her full cooperation to the Department of Social Development in the investigation of her fraud. Against the background of the true genesis of her fraud, and coupled with her plea of guilty, this cooperation is indicative of good prospects for the rehabilitation of the appellant;
25.5 The community affected by the outcome of the appellant’s fraud is the close knit community of Hankey in which the appellant lives;
25.6 The appellant is now 44 years of age. She is the mother of four children. The eldest two are majors, and the youngest two are aged 9 and 7 respectively;
25.7 The appellant is currently unemployed but has the employment history of being the treasurer for Ethembeni. That position required her to prepare a business plan and secure funding for Ethembeni;
25.8 The appellant’s marriage relationship appears to be beset by problems caused by her husband’s continued abuse of alcohol. He admits that he has a problem with controlling his use of alcohol and admits that this has a negative impact on both his working life and family life. Erratic attendance at work has the attention of his employers and is considered by them to be a major problem. The prospect of disciplinary action being taken against him seems inevitable. At home, his children are frightened of him, having seen him often in an intoxicated and abusive state;
25.9 As a consequence of the abuse of alcohol by the appellant’s husband, the minor children rely exclusively upon the appellant for their nurture and emotional security. It is apparent from the evidence of the appellant’s husband that he recognises this reality. Whilst he does not want to see the minor children placed in foster care, he indicated clearly that he is unable to take care of them. Not the least of the reasons for this inability is the fact that he has a very negative relationship with them;
25.10 Whilst historically the appellant’s parents have provided day care for the minor children, and may well continue to do so on occasion, the evidence discloses that their age and state of health militate against an increase in the provision of such support. Given the obvious limitations upon the ability of the appellant’s husband to fulfil the demands of the role of primary carer for the minor children, if he were to be placed in that position it seems, in my view, to be extremely likely that he would defer his duties to his parents in law. Their likely inability to cope would render the situation even more untenable;
25.11 The appellant has no previous convictions.
[26] The Constitutional Court has described correctional supervision as:
“an innovative form of sentence, which is used in appropriate cases and if applied to those who are likely to respond positively to its regimen, can serve to protect society without the destructive impact incarceration can have on a convicted criminal’s innocent family members.”[4]
The court was considering an appropriate sentence for a 35 year old single mother of three boys (aged 16, 12 and 8) who had been convicted of thirty seven counts of fraud and four counts of theft. The mother had a previous conviction for fraud in respect of which she had been sentenced to a suspended sentence. That sentence had been altered to one of correctional supervision on appeal to the High Court. Inter alia, the appeal to the Constitutional Court against the subsequent sentence imposed focussed on the potential effect of incarceration upon the mother’s three children. Sachs J pointed out that the issue was not whether parents should be allowed to rely on the best interests principle to avoid the otherwise just consequences of their own criminal behaviour. He observed:
“Thus, it is not the sentencing of the primary caregiver in and of itself that threatens to violate the interests of the children. It is the imposition of the sentence without paying appropriate attention to the need to have special regard for the children’s interests that threatens to do so. The purpose of emphasising the duty of the sentencing court to acknowledge the interests of the children, then, is not to permit errant parents unreasonably to avoid appropriate punishment. Rather, it is to protect the innocent children as much as is reasonably possible in the circumstances from avoidable harm.”[5]
[27] It is also clear from S v M (Centre for Child Law Intervening as Amicus Curiae)[6] that primarily, the question whether the appropriate sentence is a custodial one must be determined with reference to the triad identified in S v Zinn[7] consisting of the crime, the offender and the interests of society. Where it is determined that there could be more than one appropriate sentence, the children will weigh as an independent factor to be considered.
[28] In my view, a consideration of nature of the offence, the appellant’s personal circumstances and the interests of society leads to the conclusion that more than one sentence is appropriate in the circumstances. One of these is a custodial sentence. Another is correctional supervision. The elements identified as the role of Kila in the manipulation of the appellant, the appellant’s ongoing desire to make a contribution to society, her lack of benefit derived from her fraud and her status as a first offender, in my view, are factors which favour the imposition of correctional supervision as an appropriate sentence. Adopting the approach expressed in S v M (Centre for Child Law Intervening)[8], to this consideration must now be added the paramountcy principle concerning the interests of the two minor children. In my view, this approach identifies correctional supervision as the sentence best suited to all the circumstances of this matter.
[29] Given the full range of reports placed before the magistrate and the nature and extent of the evidence led, it is not appropriate to remit the matter to the sentencing court to impose sentence afresh. This court is in a position to impose an appropriate sentence. It is in the interests of all concerned to bring the matter to finality.
[30] In all the circumstances, I would make an order in the following terms:
1. The appeal against sentence is upheld;
2. The sentence imposed upon the appellant is set aside and replaced with the following:
(a) The accused is placed under correctional supervision in terms of s 276 (1) (h) of the Criminal Procedure Act 51 of 1977 for three years, which correctional supervision must include the following:
(i) She must perform service to the benefit of the community of Hankey for twenty hours per week for three years, the form of such service and the mode of supervision to be determined by the Commissioner of Correctional Services in consultation with the Department of Social Development, but insofar as may be possible, shall relate to the alleviation of the plight of members of the community who are infected with or affected by HIV/AIDS;
(b) The accused shall report to the Community Corrections Centre, Humansdorp, within seven days of the date hereof.
3. The Commissioner of Correctional Services shall enforce all the terms of the sentence and in the event of non compliance act in accordance with section 84 (b) of the Correctional Services Act 8 of 1959.
4. The reference in this judgment to the accused is used interchangeably with the reference to the appellant.
______________________
R W N BROOKS
JUDGE OF THE HIGH COURT (ACTING)
PLASKET J
I agree.
_________________________
C PLASKET
JUDGE OF THE HIGH COURT
Appellant’s Counsel: Mr Mtini
Legal Aid Board South Africa
GRAHAMSTOWN
Respondent’s Counsel: Adv L R Kroon
Director of Public Prosecutions
PORT ELIZABETH
[1] S v Pieters 1987 (3) SA 717 (A) at 727G-I
[2] S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222 (SCA) [2001] 3 ALL SA 220 (SCA)) para [12]
[3] S v Kotze 1994 (2) SACR 214 (O)
[4] S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18; 2007 (2) SACR 539 (CC) para [61]
[5] S v M (Centre for Child Law as Amicus Curiae) supra at para [35]
[6] Supra at para [36]
[7] 1969 (2) SA 537 (A) at 540 G-H
[8] Supra at para [36]