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CA NO: 05/2006

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

LEBO JULIA MOKONE APPELLANT

and

THE STATE RESPONDENT

J U D G E M E N T

LEEUW J:

Introduction:

[1] The Appellant was convicted of sixty-nine (69) counts of fraud at the Magistrates Court of Delareyville and sentenced to a cumulative sentence of three (3) years imprisonment of which one (1) year was suspended for three (3) years on certain conditions. The appeal is against sentence only.

[2] The offences of fraud were committed between the periods 24 January 2004 and 30 September 2005 by the Appellant who was employed by the First National Bank (“Bank”) for a period of approximately four and half years.

THE FACTS

[3] The Appellant issued a fraudulent bank card to herself on 20 January 2004 in the name and account number of one Mr R I Moji (“Moji”) who was a client of the bank. It was an additional card which Appellant used to make Automatic Teller Machine (ATM) withdrawals of various amounts to the total of R10 879-30 between 24 January 2004 and 31 November 2004 as well as purchases from various stores.

[4] The fraudulent bank card was retained by the ATM and she reissued another bank card in the name of the same client on 7 December 2004 which replaced the previous card. With the reissued fraudulent bank card, she withdrew various sums of money from the ATM totalling R16 328-00 between 7 December 2004 and 30 September 2005, and also made several purchases from various chain stores and supermarkets. The total amount stolen from the bank is R27207-30 between 24 January 2004 and September 2005.

[5] The Appellant pleaded guilty to all the charges. In her plea explanation in terms of section 112 of the Criminal Procedure Act No 51 of 1977 (“the Act”), she stated that she issued the fraudulent bank cards to herself in view of the fact that she had access to cards in the bank. The money stolen was from Moji’s account.

The Notice of Appeal and Submissions

[6] The Notice of Appeal states the following as the grounds of appeal:

“1. The sentence passed by the Learned Magistrate on the Appellant is inappropriate and induces a sense of shock.

2. The offence justifies that the Court dealt with the Appellant more leniently as it did S v Pillay 1977 (4) SA 531 (AD).

2. It is submitted with respect that the High court will interfere with the discretion of the court in imposing the said sentence. S v Fazzie & Others 1964 (4) SA 673 (AD).

APPELLANT reserves her right to amend, add or vary the aforegoing grounds.”

[7] Ms Zwiegelaar, on behalf of the Appellant, raised further grounds in her submissions which are not contained in the notice of appeal. She submitted that the Learned Magistrate failed to establish from the Appellant sufficient information regarding the reasons for the commission of the offence, the Appellant’s personal circumstances and the interest of the society, which factors would have enabled the Court a quo to exercise its discretion judiciously instead of the sentence being “no more than hazardous guess”. She goes further to argue that the Court a quo misdirected itself when considering sentence and has as such failed to afford the Appellant a fair trial.

[8] Counsel for the State, Ms Moroka, submitted that this Court should not interfere with the sentence imposed because the Learned Magistrate in the Court a quo neither misdirected himself in considering sentence, nor is the sentence imposed severe or shockingly inappropriate.

Notice of appeal at variance with the Appellant’s submissions

[9] The Court, mero motu raised the question regarding the issues referred to by Ms Zwiegelaar which appear in the heads of argument and are at variance with and inconsistent with the grounds of appeal.

[10] It is trite law that Rule 67 of the Magistrates Court Act No 32 of 1944 (“the Magistrates Court Act”) requires that an appeal to the High Court from a criminal conviction in the Magistrates Court, has to state with clarity the issues upon which the appeal is based. The Appellant will then be confined to those grounds that are contained in the Notice of Appeal. Failure to comply with this Rule will usually result in the appeal being struck off the roll. See S v Matuba 1977 (2) SA 16 (OPD); S v Hlatswayo 1982 (4) SA 745 (AD); S v Maritz 1994 (1) SALR 456 (T); S v Khoza 1979 (4) SA 757 (NPD); S v Nel 1987 (4) SA 276 (OPD).

[11] This Court also had opportunity to make a pronouncement on the issue in the case of S v Baloyi 1991 (1) SACR 265 (B). Friedman J (as he then was) stated the following on p268 h - j.

“…… it is plain and beyond question that an appellant is confined to the grounds of appeal, which are in fact the subject-matter of the appeal.

The Rules of Court contain a quantity of concrete particularity which must be observed to facilitate strict compliance with them in order to ensure the administration of justice for all concerned. Non-compliance with the said rules would encourage casual, easy-going and slipshod practice, which would reduce the high standard of practice which the Courts are entitled to in order to ensure the efficient administration of justice for all. The duties that the Rules impose are specific and must be complied with; they cannot be allowed to degenerate into disorder.

Practitioners are enjoined to ensure that the notices of appeal comply strictly with the Rules, and counsel are directed to make certain that their heads of argument relate to the subject-matter of the appeal as contained in the grounds of appeal.”

[12] The Court may, however, condone a defective notice of appeal if issues on appeal are simple and straightforward or where a question of law is raised and the state does not object to its being argued. Compare S v Nel 1987 (4) SA 276 (OPD) at 279 F - I and S v Burchell 1996 (1) SALR 488 (W).

[13] In the present case, the only basis on which the sentence imposed was appealed against is that the sentence induces a sense of shock. The additional grounds in the heads of argument, which are to the effect that the Court a quo misdirected itself in imposing sentence are not contained in the Notice of Appeal. The Notice of Appeal was not amended to include these further grounds despite the fact that it was stated in the Notice of Appeal that the Appellant reserved her right to amend or vary her grounds of appeal.

[14] The issues raised by Ms Zwiegelaar with regard to the personal circumstances of the Appellant, which by the way are not covered by the notice of appeal, can be summarized as follows:

14.1 That even though the Learned Magistrate did enquire from the Appellant her reasons for committing the offence, by amongst others establishing the nature and extent of her family responsibilities, he failed to enquire into her financial position with regard to her monthly expenses and obligations, which information would have enabled him to understand her reasons for committing the offences, which could have been motivated by either greed or need. This information would also assist in determining her ability to pay a fine;

14.2 That it was important to establish whether the Appellant withdrew from the fraudulent action on her own accord or as a result of having been caught in the act; and

14.3 That the Learned Magistrate failed to consider correctional supervision or a fine as an alternative form of punishment.

[15] The Learned Magistrate considered the following personal circumstances of the Appellant:

1. That she is 36 years old and has an 18 months old child;

2. That she is a first offender and pleaded guilty;

3. That she earned a salary of ± R3 800-00 per month and worked at the bank for approximately four and half years; and

4. That she lost her employment at the bank and also authorized the bank to reimburse the complainant from her pension fund moneys due to her.

[16] The Learned Magistrate took the nature of the crime into consideration. Amongst others, that the sixty-nine (69) counts were committed over a period of one (1) year and nine (9) months, and that the Appellant had ample time to withdraw from the continued commission of the crime. He also considered the fact that the victim was a 61 year pensioner and the fact that Appellant was in a position of trust at the Bank. The Learned Magistrate held the view that the offences were of a serious nature.

[17] Counsel for the Appellant lays emphasis on the failure of the Court a quo to question the Appellant extensively on factors that may have caused her to commit fraud, which, according to her, could have been prompted by her lack of means to support her family and even poverty. This argument is misplaced and overlooks the other factors mentioned by the Learned Magistrate when he considered sentence.

[18] Factors such as poverty or financial dire straits can be taken into consideration as relevant personal circumstances of the Appellant but only under rare and exceptional circumstances. See Shaik & Others v The State 2007 (12) BLLR 1360 (CC). I find the following remarks of the Court in paragraph [76] thereof apposite: “Whereas it is clear that poverty, a lack of education, or an unhappy childhood, for example, or years of humiliation and ill-treatment by one or more persons, could be taken into account as relevant personal circumstances of an offender, one must not lose sight of the fact that millions of people who suffered severely under apartheid have chosen to lead honest lives and to avoid crime, often against many odds. Any message by sentencing court that the sad brutal past of our country is a general excuse or mitigating factor for crime would degrade the noble efforts of millions of previously and presently deprived people to live law – abiding lives under difficult circumstances”.

[19] It was further submitted on behalf of the Appellant that the Court a quo failed to consider other alternatives to imprisonment, especially in view of the fact that the money stolen was to be reimbursed from the Appellant’s pension funds.

[20] The fact that certain relevant factors were not mentioned in the judgment of the Court a quo does not necessarily mean that they were overlooked. See S v Pillay 1977 (4) SA 531 (AD) at 535 B - E.

[21] The Learned Magistrate in the Court a quo does mention in his reasons for judgment and sentence that he did consider other alternatives to the imprisonment sentence imposed, including correctional supervision and periodical imprisonment, but that when he considered the factors mentioned above, he came to the conclusion that imprisonment was the appropriate sentence in the circumstances.

[22] Counsel for the Appellant argued that the fact that the Learned Magistrate in the Court a quo claimed to have considered correctional supervision as an option to direct imprisonment, without considering the suitability thereof, is nonsensical because he should have given weight to the fact that the Appellant has an 18 months old baby, who was solely under her care.

[23] The fact that the Learned Magistrate has not called for a report for the purpose of considering correctional supervision does not entail that he misdirected himself or alternatively that he did not consider such sentence. See S v L 1998 (1) SALR 463 (SCA) at p 467 b - j.

[24] The Court a quo in imposing sentence mentioned factors relevant to the nature and extent of the offence, the interests of society and the personal circumstances of the Appellant.

[25] This Court, as a Court of Appeal, would not easily interfere with the sentence imposed by the Court a quo exercising its discretion. The question is not which sentence the Appeal Court would have imposed, but rather whether the sentence is shockingly the appropriate, or whether an irregularity or misdirection occurred. See Shaik & Others v The State supra at para [72] and the cases therein referred to.

[26] The Appellant has failed to persuade this Court that the sentence imposed is shockingly inappropriate or that the Court a quo committed an irregularity or misdirection. This Court can therefore not interfere with the sentence imposed. The appeal against sentence based on the aforementioned grounds has no merit and must fail.

[27] The appeal against sentence is accordingly dismissed, and the sentence is confirmed.

_________________________

M M LEEUW

JUDGE OF THE HIGH COURT

I agree.

___________________

M T R MOGOENG

JUDGE PRESIDENT

APPEARANCES:

For the Appellant : Adv C J Zwiegelaar

For the Respondent : Adv M M M Moroka

Attorneys for the Appellant : Shongwe Nkwana Attorneys

C/o Herman Scholtz Attorneys

Attorneys for the Respondent : State Attorneys

Date of hearing : 16 November 2007

Date of judgment : 07 February 2008

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