South Africa: North West High Court, Mafikeng

S v Manganye (14/2000) [2001] ZANWHC 25 (24 May 2001)

LEEUW J:

1. On the 19^th January 2000, the appellant was convicted in the Regional Division of Odi at Ga-Rankuwa on 12 Counts of Fraud. He was sentenced to (15) fifteen years imprisonment. I assume that all the counts were taken together for the purpose of sentence. On the 18^th February 2000, he applied unsuccessfully for leave to appeal to this Court against both conviction and sentence. On the 7^th March 2000, he filed a petition to the Judge President and was granted leave to appeal to this Court on sentence only.

2. The crimes for which the appellant was convicted were committed over a period of nine months, from March 1998 to November 1998. The total amount stolen on the twelve counts amounts to R103,633-75.

3. The appellant was employed by the Department of Correctional Services as a Pastel System Operator at the Odi Prison. His duty was to process the salary payments and allowances of the members of the Department, by verifying the correctness thereof and approving and authorizing payment through the pastel system. This system could only be accessed by using a password, and money was deposited into a bank account electronically through it.

4. The various amounts that were paid during the period mentioned above, were falsely made out in the names of different individuals including that of the appellant, and were all deposited in his, the appellant’s account, at the Nedbank. They were all processed by him.

5. The frauds committed by the appellant required great ingenuity and were well planned and thought out by him, because even when the system was changed on the 2^nd September 1998, the appellant devised some other means of defrauding the Department by using the same Pastel System to steal a further amount of R11 063-57 which was processed on the 28^th October 1998 and deposited in the appellant’s bank account on the 2^nd November 1998.

6. Before us, it was argued on behalf of the appellant by Mr Kekana that

(a) the sentence is very severe, excessive and startlingly inappropriate in that the Magistrate ought to have considered correctional supervision in terms of section 276 (1) (h) of the Criminal Procedure Act No 51 of 1977 instead of imprisonment; and

(b) the Magistrate committed a misdirection by over-emphasising the interests of society and the seriousness of the offence and under-emphasising the personal circumstances of the appellant.

The submission on behalf of the respondent is that imprisonment is the appropriate sentence but that an imprisonment sentence of fifteen years is severe under the circumstances.

7. The main reason for imposing the minimum sentence of 15 years is set out in a cursory remark by the Learned Magistrate as follows:

“ We are not dealing with an ordinary person here we are dealing with a law enforcement officer. Thereby this would immediately make the minimum sentences Act to come into the picture. If you look at the amount in question, if you look at the position of the accused as at that particular time, one has no reason whatsoever to say I am not going to apply the minimum sentence Act. What would the justification be under those circumstances because the legislator has passed that Act to be applied and it is this particular circumstance where it should be applied.” (My underlining).

8. As a result of the apparent reliance by the Magistrate on the provisions of section 51 of the Criminal Law Amendment Act 105 of 1997 (“the Act”), we raised the following questions mero motu:

Whether the provisions of the Act should be made applicable to the appellant by virtue of the fact that he is an employee of the Correctional Services.

THE LAW

9. Section 51 of Act 105 of 1997 reads as follows:

“(1) Notwithstanding any other law but subject to subsection (3) and (6), a Regional Court or High Court shall -

(a) if it has convicted a person of an offence referred to in Part II of Schedule 2, sentence the person, in the case of -

(i) a first offender, to imprisonment for a period of not less than 15 years; ----------”

10. The offences referred to in Part II of Schedule 2 are amongst others:

(a) -----------------------------------

(b) -----------------------------------

(c) Any offence relating to exchange control, corruption, extortion, fraud, forgery, uttering or theft -

(a)

(b)

(c) if it is proved that the offence was committed by any law enforcement officer -

(i) involving amounts of more than R10 000-00;

(ii) ------------------------

The provisions of Section 51 came into effect on the 1^st May 1998.

11. Section 8 of the Act provides that: “For the purpose of this section and Schedule 2 law enforcement officer includes -

(a) -------------------------

(b) a correctional official of the Department of Correctional Services or a person authorized under the Correctional Services Act, 1959 (Act 8 of 1959).”

12. (i) The definition of “Correctional Official” in section 1 of Act 8 of 1959, was substituted by section 137 of the Correctional Services Act No 111 of 1998. The latter came into operation on the 19 February 1998.

12 (ii) Section 1 of Act No 111 of 1998, defines “Correctional Official” as an employee of the Department appointed under section 3 (4);. Section 3 (4) provides that “the Department consists of the Commissioner, other Correctional Officials appointed by the Commissioner in terms of this Act and other employees appointed in terms of the Public Service Act.” This section does not define a “law enforcement” officer per se but provides for those entities which comprise the Department of Correctional Services.

Furthermore, there is a clear distinction drawn, between a correctional “official” and “employee.”

12 (iii) Section 2 of the Correctional Services Act, provides that:

“The purpose of the correctional system is to contribute to maintaining and protecting a just, peaceful and safe society by -

(a) enforcing sentences of the courts in the manner prescribed by this Act;

(b) detaining all prisoners in safe custody whilst ensuring their human dignity; and

(c) promoting the social responsibility and human development of all prisoners subject to community corrections.”

The Act further provides in addition to the purpose mentioned above, in section 100 (1), that “in addition to the powers of arrest which the correctional official has as a peace officer in terms of the Criminal Procedure Act ----” the said official shall have the power to arrest without a warrant; and sections 101 and 102 empower the officer to search and use force for the purpose of arrest, same as those conferred on police officials in terms of the Criminal Procedure Act.

13. Reverting to the present case, the question is: were the fraudulent acts under consideration in fact committed whilst the appellant was performing his functions as a law enforcement officer?

(a) In Part 1 (b) of Schedule 2 of the Act, the Legislature has provided for the minimum sentence of Life imprisonment for the murder of a law enforcement officer who was murdered “performing his or her functions as such, whether on duty or not.”

(b) If Part 1 (b) and Part 2 (c) of Schedule 2 are read together, it is clear that the intention of the Legislature was to make the Act applicable to those officers who are employed as law enforcement officers, and who were, at the time of the commission of the offence(s) performing their duties as law enforcement officers, and not just as officers employed as such but tasked with other duties other than enforcing law. It could not have been the intention of the Legislature to extend the application of the Act to, for instance, administration clerks, cleaners or gardeners who are not entrusted with the duty of enforcing compliance with the purpose of the correctional system per se. This would result in unreasonable, unjust or unfair results.

14. In the case of S v Malgas handed down on the 19^th March 2001, Case No 117/2000 SCA, Marais JA, stated the following on “substantial and compelling circumstances” on pages 27 to 30:

“[21] It would be foolish of course, to refuse to acknowledge that there is an abiding reality which cannot be wished away, namely, an understandable tendency for a court to use, even if only as a starting point, past sentencing patterns as a provisional standard for comparison when deciding whether a prescribed sentence should be regarded as unjust. To attempt to deny a court the right to have any regard whatsoever to past sentencing patterns when deciding whether a prescribed sentence is in the circumstances of a particular case manifestly unjust is tantamount to expecting someone who has not been allowed to see the colour blue to appreciate and gauge the extent to which the colour dark blue differs from it. As long as it is appreciated that the mere existence of some discrepancy between them cannot be the sole criterion and that something more than that is needed to justify departure, no great harm will be done.

What that something more must be it is not possible to express in precise, accurate and all-embracing language. The greater the sense of unease a court feels about the imposition of a prescribed sentence, the greater anxiety will be that it may be perpetrating an injustice. Once a court reaches the point where unease has hardened into a conviction that an injustice will be done, that can only be because it is satisfied that the circumstances of the particular case render the prescribed sentence unjust or, as some might prefer to put it, disproportionate to the crime, the criminal and the legitimate needs of society. If that is the result of a consideration of the circumstances the court is entitled to characterise them as substantial and compelling and such as to justify the imposition of a lesser sentence.”

15. I am of the view that the Learned Magistrate misdirected himself in considering sentence because of the following:

(a) He only satisfied himself with the fact that the crime falls within the categories spelt out in Schedule 2, and did not consider whether compelling and substantial circumstances exist which justify a departure from the minimum sentence prescribed. See S v Malgas supra paragraph 14 p 22.

(b) Proof that the appellant is a law enforcement officer must have been present at the time of conviction and not only at the sentencing stage. Compare S v Nzxiyane 2000 (1) SACR 605 (T). The appellant was only made aware of the provisions of the Act after conviction. This was unfair to the appellant. See S v Mbambo 1999 (2) SACR 421 (W). S v Dickson 2000 (2) SACR 304 (C).

(c) Some of the offences were committed by the appellant between the 18^th March 1998 and 20^th April 1998 and the total amount defrauded is R37, 732-66. This was before the Criminal Amendment Act came into operation. By taking all counts together as one for the purpose of sentence, he unfairly applied the provisions of the Act retrospectively, to the detriment of the appellant.

16. In view of the abovementioned misdirections, this Court is entitled to consider the question of sentence afresh, as if it is a Court of first instance. There is no doubt that the sentence imposed is startlingly inappropriate in that there is a great disparity between the sentence of the Trial Court and the sentence which this Court would have passed.

17. The following mitigating factors were outlined by appellant’s counsel before us:

(a) That the appellant was 29 years old at the time he committed the offence;

(b) That he is a first offender;

(c) That he is a sole breadwinner;

(d) He is not married and his mother is unemployed, and he is therefore responsible for her, a brother and sister’s maintenance;

(e) That he is a valuable member of the community in that he was a sports conductor in the Brits district; and

(f) That he was already dismissed from employment at the time of conviction.

18. Against the abovementioned factors, it is important to take into account the fact that the frauds were committed twelve times over a period of nine months. He did not desist from his actions until he was discovered. Even when the Pastel System was changed in order to curb theft from the Department, the appellant devised some other means of stealing and defrauding the Department through the same Pastel System.

19. The appellant did not offer to repay the money stolen and at no stage did he indicate that he was remorseful about the frauds committed.

20. Correctional supervision sentence in terms of section 276 (1) (h) would, in the circumstances of this case, send out a message that crime does pay. Compare S v Sinden 1995 (2) SACR 704 (A) 709.

21. The personal circumstances of the appellant are far much outweighed by the seriousness of this offence and the interests of society. He was in a position of trust as against his employer.

22. In considering sentence it is important to take into account the fact that the R12 019-00 of pension money due to the appellant will be retained by the Department to defray part of the money defrauded.

23. In all the circumstances, it would be appropriate to reduce the sentence considerably and pass a sentence that would be appropriate for the kind of offences committed. See S v Sinden supra; S v Sadler 2000 (1) SACR 331 (SCA).

The appeal against sentence succeeds to the extent that the sentence imposed is set aside and the following sentence is substituted:

“Six years imprisonment - all counts taken together for the purpose of sentence.”

M M LEEUW

JUDGE OF THE HIGH COURT

I agree.

M T R MOGOENG

JUDGE OF THE HIGH COURT

Appellant’ s Attorneys : Maubane, Ratiba & Partners

C/o Andre Mulligan Attorneys