THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case Number  :  626 / 2007
No precedential significance

MARIA DE LOURDES ABRANTIS DE SOUSA
Appellant

and

THE STATE
Respondent

Neutral citation:

De Sousa  v The State

(626 / 2007) [2008] ZASCA 93 (12 September 2008)

Coram :
BRAND, PONNAN and JJA and LEACH AJA

Heard:
2 September 2008
Delivered:
12 September 2008

Summary:
Fraud – sentence – approach to on appeal - striking disparity between sentence imposed
and that which the appellate court would have imposed – sentence reduced from seven-
and-a-half to four years’ imprisonment.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from:   The Johannesburg High Court, (Horn J and Mlonzi AJ sitting as a court of appeal)

The appeal succeeds.

The sentence is set aside and there is substituted for it a sentence of four years’

imprisonment.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

PONNAN  JA (BRAND JA and LEACH AJA  concurring):

[1] The appellant was convicted, pursuant to her plea of guilty, by the Regional
Court (Johannesburg) 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, the appellant was
sentenced to a term of imprisonment for a period of 7½ years. An appeal to the
Johannesburg High Court (per Horn J, Mlonzi AJ concurring) having proved
unsuccessful the further appeal is with the leave of this court.

[2] The facts and circumstances relating to the conviction can be gleaned from the
appellant’s written plea explanation in terms of s 112 of the Criminal Code:
‘2
In pleading guilty to the said charges I admit:
2.1
that I misrepresented to Maslex and  or their employers that
2.1.1 goods were bought by Maslex from MDS Marketing and or M de Sousa and or MDS
Marketing trading as M de Sousa on the dates as per column 1 of the schedule attached
to the charge sheet for the amounts as per schedule 2 of the said schedule.
2.2
that by means of the said misrepresentations Maslex and or their employers were
induced to their prejudice or potential prejudice to:
2.2.1 accept the said misrepresentations as being the truth and or
2.2.2 pay the amounts as per column 2 of the schedule to MDS Marketing and or M de Sousa
or MDS Marketing trading as M de Sousa.
2.3
that when I made the said misrepresentations as aforesaid I knew that the goods were
not bought by Maslex from MDS Marketing and or M de Sousa and or MDS Marketing
trading as M de Sousa for the amounts as per column 2 of the schedule and that the
amounts were not payable as aforesaid.
The circumstances under which I committed these crimes were as follows:

3.1
During 1999 I met my co-accused Mr Dos Santos, who at the time was an executive
director of Maslex.
3.2
We engaged in a lover’s relationship.
3.3
I was confronted by Mr Dos Santos and asked whether or not my bank account could be
utilised in order to get cheques from Maslex cleared and thereafter the monies would be
transferred to his personal account.
3.4
At the time I was sceptical of this arrangement but I was informed by Mr Dos Santos,
that I had to explain that I in fact sell water should I ever be asked about the money that
had been deposited into my account.
3.5
I was at all times aware of the fact that Mr Dos Santos neither myself nor MDS
Marketing bought any goods from Maslex and that no monies were payable to myself,
Mr Dos Santos or MDS Marketing.
3.6
I then agreed to utilise my bank account for the clearance and transfers of the monies
as set out above.
3.7
I then actually paid the cheques on the dates as set out in column 2 of the schedule into
my bank account after the said cheques were handed to me by Mr Dos Santos.
3.8
The cheques were cleared on the same day whereafter I transferred the monies into the
bank account of Mr Dos Santos.
3.9
From the monies that I transferred to the account of Mr Dos Santos I received an
amount of R90 000,00 for my participation in this scheme.
3.10
I utilised the said monies in order to pay my debt and debt incurred by Mr Dos Santos.
These facts will be more clearly set out to the court during sentence procedures.
I further admit that when I acted as aforesaid I knew that no monies were due to myself
or MDS Marketing that my actions were wrong and that I was not entitled to deposit the
cheques or to transfer the money as aforesaid.’

[3] It is common cause that Act 105 of 1997 – the so-called minimum sentencing
legislation, finds application and that the matter falls within the purview of Part 2 of
Schedule 2 of the Act. In terms of s 51(2)(a)(i), the legislature has ordained 15 years’
imprisonment for a first offender found guilty of an offence of this kind, unless
substantial and compelling circumstances in terms of s 51(3)(a) which would justify the
imposition of a lesser sentence are found to exist . The trial court did indeed find such

circumstances to be present. It thus departed from the statutorily prescribed minimum
sentence.

[4] The approach of a sentencing tribunal to the imposition of the minimum
sentences prescribed by the Act is to be found in the detailed judgment of Marais JA in
S v Malgas 2001 (1) SACR 469 (SCA).  The main principles appearing in that judgment
which are of particular application to the present appeal are: first, the court has a duty to
consider all the circumstances of the case, including the many factors traditionally taken
into account by courts when sentencing offenders; second, for circumstances to qualify
as substantial and compelling, they do not have to be exceptional in the sense of
seldom encountered or rare; third, although the prescribed sentences required a severe,
standardised and consistent response from the courts unless there were, and could be
seen to be, truly convincing reasons for a different response, the statutory framework
nonetheless left the courts free to continue to exercise a substantial measure of judicial
discretion in imposing sentence.  (See also S v Fatyi 2001 (1) SACR 485 (SCA) para 5;
S v Abrahams 2002 (1) SACR 116 (SCA) para 13.)

[5] The circumstances entitling a court of appeal to interfere in a sentence imposed
by a trial court were recapitulated in Malgas (para 12), where Marais JA held:
‘A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the
trial court, approach the question of sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it.  To do so would be to usurp the sentencing
discretion of the trial court. . . . However, even in the absence of material misdirection, an
appellate court may yet be justified in interfering with the sentence imposed by the trial court.  It
may do so when the disparity between the sentence of the trial court and the sentence which
the appellate 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”.’

[6] It has not been suggested that the sentence was vitiated by any misdirection.
The argument advanced on behalf of the appellant is that the degree of disparity
between the sentence imposed and that which this court would have imposed is such

that interference is competent and required. As Marais JA put it in S v Sadler 2000 (1)
SACR 331 (SCA) para 8,
‘The traditional formulation of the approach to appeals against sentence on the ground of
excessive severity or excessive lenience where there has been no misdirection on the part of
the court which imposed the sentence is easy enough to state. It is less easy to apply. Account
must be taken of the admonition that the imposition of sentence is the prerogative of the trial
court and that the exercise of its discretion in that regard is not to be interfered with merely
because an appellate Court would have imposed a heavier or lighter sentence. At the same
time it has to be recognised that the admonition cannot be taken too literally and requires
substantial qualification. If it were taken too literally, it would deprive an appeal against sentence
of much of the social utility it is intended to have. So it is said that 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, interference is justified. In such situations the trial court’s
discretion is regarded (fictionally, some might cynically say) as having been unreasonably
exercised.’

[7] It is so that the appellant has shown genuine remorse and contrition in: first, co-
operating with the investigating officer from the time of her arrest; second, admitting her
role in the commission of the offences; third, deposing to a witness statement and
agreeing to testify against Mr Dos Santos; fourth, signing an acknowledgement of
indebtedness in favour of Maslex in the sum R90 000 being the extent of her benefit
from the fraudulent scheme and thereafter paying that debt in full; and, fifth, pleading
guilty to the charges.

[8] It must also count in her favour that her first foray into crime occurred at the
relatively advanced age of 32 years. And, when she did eventually venture into crime it
was at the instance of her boyfriend with whom she evidently was besotted. As she
explains in her evidence:
‘Can you maybe explain to the court why you committed this crime?  What was the reason
therefore? --- I have never been proposed, and Rui proposed to me, and it was a husband that I
was going to get, and the life that I was going to have with him, that knowing that he was a
director of Maslex, I did not even see any problem with what he was asking me to do, and what I
was doing at the time.

Did you actually trust him? --- He was, he is a well travelled man. He, in my experience,
he used to speak, he used to have the ANC on a speed dial on his cell phone, and everything
just came, everything happened that he promised everything happened, so there was no reason
for me to doubt him at that time.’

[9] Mr Dos Santos obviously preyed on the appellant’s vulnerabilities. He proposed
to her, which she accepted and led her to believe that they would be getting married in
the near future. Shortly after she had become complicit in his fraudulent scheme,
however, he moved out of their shared apartment and became involved with another
woman.  But, while she initially succumbed to his charms and acted under his influence
in becoming a party to the criminal venture, she persisted long after the relationship had
ended. On the appellant’s own version, their relationship lasted some four to five
months. For the first two of those, Mr Dos Santos was unemployed. The fraudulent
scheme commenced almost immediately after he had secured employment. All told the
offences were perpetrated over a period in excess of nine months – sufficient time it
seems for reflection and re-consideration, particularly when it was only for a third of that
time that she was intimately involved with Mr Dos Santos and would have been
susceptible to his influence.

[10]  It is indeed so that the appellant utilised some of the money to assist her mother,
who was, according to the appellant, in financial difficulty and her sister (whose
husband was in rehabilitation) to pay school fees. She had as well to pay Mr Dos
Santos’ cell phone debt to the tune of R10 000. Much of the money however was spent
in a wasteful way on lavish items and not for needy purposes. It was not needed to
satisfy any of the necessities of life. On the other hand, to the appellant’s credit, she has
been in gainful employment since March 1993 as a production manageress at Ster
Kinekor. Not only were her employers aware of the fact that criminal charges had been
preferred against her, but they had loaned and advanced to her the sum of R50 000
which she utilised to pay bail, legal costs and the like. Her excellent work record and the
trust that her employers continued to repose in her, particularly after they had learnt of
her criminal transgression, must undoubtedly count in her favour.

[11] White collar crime has reached alarming proportions in this country. They are
serious crimes, whose corrosive impact upon society is all too obvious. The appellant
assisted her boyfriend, who occupied a position of the utmost trust in the complainant
company, to implement a plan that he had devised to defraud it. It does not emerge
whether all of the losses of the complainant have yet been made good. They are
substantial. Furthermore, the misconduct was premeditated and persistent. She
participated in the criminal venture not just to benefit herself but also to ingratiate herself
with Mr Dos Santos.

[12]  There are however facts that distinguish this case from many other similar cases.
Although the complainant lost a very large sum of money, the appellant only benefited
to the tune of R90 000. In respect of that sum, once discovered, she immediately
undertook to repay the money, signed an acknowledgement of indebtedness and in fact
has since repaid the amount in full. From the outset, she co-operated fully with the
police. Thus, even before she came to be sentenced, she had furnished the
investigating officer with a statement detailing her involvement as well as the
involvement of Mr Dos Santos in the fraudulent scheme. The investigating officer who
testified on her behalf during the trial was very well disposed towards her. As was the
complainant. That she has shown genuine remorse for what she has done is abundantly
clear.

[13] The appellant has obviously had to suffer in many ways. Her embarrassment is
patent and she has had to live with a constant sense of guilt for subjecting those near
and dear to her to the trauma that her fall from grace has caused. In compensating the
complainant, the appellant divested herself of all of her ill-gotten gains. There is little
likelihood that the appellant will repeat the offence or that she in future will constitute a
risk to society. Moreover, she is obviously good human material and her prognosis for
rehabilitation appears excellent. Because of the gravity of the offences, the request that
she be kept out of jail cannot be acceded to. Plainly, a custodial sentence will be the
only appropriate sentence. Although one cannot but feel deeply for her, sympathy

cannot deter a court from imposing the kind of sentence dictated by justice and the
interests of society.

[14] It remains for me to substitute what I consider to be an appropriate penalty for
that imposed by the trial court. Taking all of the factors into consideration, in my view,
an appropriate sentence is imprisonment for a term of four years. In arriving at that
sentence I take account of the fact that she spent some two months in custody prior to
being released on bail pending her appeal. Plainly the difference between that sentence
and the 7½ years imposed by the trial court is sufficiently striking as to oblige
interference.

[15] In the result:
(a)
The appeal succeeds.
(b)
The sentence is set aside and there is substituted for it a sentence of four
years’ imprisonment.

_________________
V M  PONNAN
JUDGE OF APPEAL

APPEARANCES:

COUNSEL FOR APPELLANT:
M VAN WYNGAARD
INSTRUCTED BY:

A S STEIJN

BENONI
CORRESPONDENT:

ROSENDORFF REITZ BARRY

BLOEMFONTEIN

COUNSEL FOR RESPONDENT:
S M MAAT (Ms)
INSTRUCTED BY:

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS

JOHANNESBURG
CORRESPONDENT:

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS

BLOEMFONTEIN
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

12 September 2008

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

De Sousa  v The State (626/2007) [2008] ZASCA 93 (12 September 2008)

Media Statement

Today the Supreme Court of Appeal (SCA) upheld an appeal by Maria de Sousa against a
sentence of seven and half years imposed on her by the Johannesburg Regional Court, which
had convicted her, pursuant to her plea of guilty, of 13 counts of fraud.

In her plea explanation she stated that she had been influenced by her boyfriend, who was an
executive director of the complainant company, to misrepresent to it that she was entitled to
certain payments in consequence of her having sold and delivered goods to it. No such goods
had in fact been sold and delivered by her to the complainant company. Cheques issued by
the company were then deposited into her bank account and after the proceeds had been
cleared, transferred into her boyfriend’s personal account. The total loss suffered by the
complainant was slightly in excess of one million Rand.

An appeal by her to the Johannesburg High Court proved unsuccessful. The SCA stated that
there are facts that distinguished this case from many other similar cases. According to the
SCA, although the complainant lost a very large sum of money, the appellant only benefited
to the tune of R90 000. In respect of that sum, once discovered, she immediately undertook to
repay the money, signed an acknowledgment of indebtedness and in fact has since repaid
that amount to the complainant in full. Even before she came to be sentenced, she had
furnished the investigating officer with a statement detailing her involvement as well the
involvement of her boyfriend in the fraudulent scheme. Furthermore, it was evident that the
investigating officer, who testified on her behalf during trial, was very well disposed towards
her. The same could also be said of the complainant. It was thus abundantly clear that she
has shown genuine remorse for what she has done.

Moreover, according to the SCA, there is little likelihood that the appellant will repeat the
offence or that she in future will constitute a risk to society. She is obviously good human
material and her prognosis for rehabilitation appears excellent. In those circumstances, the
sentence of seven and half years’ imprisonment was set aside and substituted in its stead
was a sentence of four years’ imprisonment.

--- ends ---