THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No 739/10

In the matter between

J PILLAY

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:   J Pillay v The State (739/10) [2011] ZASCA 111 (1 June
2011)

Coram:
NAVSA and SERITI JJA and PETSE AJA
Heard:
24 May 2011
Delivered:    1 June 2011

Summary:  Sentence ─ Conviction on 34 counts of fraud ─ magistrates’ court
imposed sentence of five years’ imprisonment in terms of s 276(1)(i) of the
Criminal Procedure Act 51 of 1077 ─ accused 32 year-old mother ─ first
offender with six children ─ insufficient information before trial court to enable
trial court to make a decision about a custodial sentence or its impact on
children of the accused ─ matter remitted to trial court for sentence to be dealt
with afresh.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from:  KwaZulu-Natal High Court, Pietermaritzburg (Mokgohloa J
and Hughes-Madondo AJ, sitting as court of appeal):

(a)
The appeal is upheld and the order of the court below is set aside.
(b)
The sentence imposed by the trial court is set aside and the matter is
remitted to the trial court to impose sentence afresh after obtaining the
material evidence affecting the children in accordance with what is set out in S
v The State, Centre for Child Law as Amicus Curiae (CCT 63/10) [2011]
ZACC 7 (29 March 2011), S v M (Centre for Child Law as Amicus Curiae)
2007 (2) SACR 539 (CC) and this judgment.
______________________________________________________________

JUDGMENT
______________________________________________________________

SERITI (NAVSA JA and PETSE AJA concurring):
[1] The appellant, Ms Julie Pillay, was arrested on 3 May 2007 and
together with her co-accused, Mr Mnyamezele Mbhele (Mbhele), appeared on
15 July 2008 in the Durban Regional Court facing 34 charges of fraud related
to the fraudulent transfer of monies from her employer's trust account.  The
appellant was duly convicted on a plea of guilty. She was released on bail
pending finalisation of the proceedings. The appellant’s co-accused pleaded
not guilty and their trials were separated. She was released on bail pending
the finalisation of the matter.

[2] On 11 December 2008 the appellant was sentenced to five years
imprisonment in terms of s 276(1)(i) of the Criminal Procedure Act 51 of 19771
(the CPA). Her bail was withdrawn and on 12 December 2008 the Regional

1 Section 276(1)(i) provides for a sentence of imprisonment from which a person may be
placed under correctional supervision at the discretion of the Commissioner of Correctional
Services.

Court granted her leave to appeal against the sentence imposed to the High
Court and her bail was reinstated.

[3] On 29 April 2010, the KwaZulu-Natal High Court (per Mokgohloa JA
and Hughes-Madondo AJ) dismissed the appeal and confirmed the sentence
imposed by the Regional Court. On 28 July 2010 the High Court granted her
leave to appeal to this Court and her bail was extended pending the
finalisation of the appeal.

[4] At the time of the conviction, the appellant who was 32 years old was
employed by a firm of attorneys, Steenkamp Weakly Ngwane and Associates
(SWN) as a conveyancing secretary and a paralegal. At the time of the
commission of the offences the appellant had been employed by SWN for
almost 18 months. She was regarded by her employers as very efficient and
skilled. She headed a department at SWN and was studying towards a LLB
degree. SWN had agreed to register the appellant’s articles of clerkship to
enable her to qualify as an attorney.

[5] From 14 December 2006 up to 26 April 2007 she fraudulently
transferred, or caused to be transferred, from the trust account of her
employers various sums of monies totalling R270 304,53. Count 34, as set
out in the charge sheet, relates to her fraudulent transfer of an amount of
R700 000 into the account of Mbhele. On the date of the transfer of those
funds she accompanied Mbhele to the bank to assist him in accessing the
R700 000. Before allowing Mbhele to access the said funds, the bank
communicated with SWN to determine if the transfer was genuine. On being
advised that the transfer was fraudulent, the transaction was halted and the
appellant arrested.

[6] An annexure to the charge sheet, the correctness of which was
unchallenged, indicates that on 12 March, 19 March, 23 March and 3 April
2007 various amounts totalling R70 556.07 were successfully transferred into
the account of Mbhele, the former co-accused of the appellant. Before any
transfer was made into the account of Mbhele 17 other amounts of money

were transferred into the accounts of a number of people and institutions.
Between 14 December 2006 and 19 February 2007 six different amounts
totalling R24 668.20 were transferred into the account of Mr M Mbuthuma, the
father of the appellant’s youngest child, with whom she apparently has an
ongoing relationship. On 1 March, 8 March and 20 April 2007 various
amounts totalling R35 900 were transferred into the account of Moolas Siza
Hardware.

[7] In her statement to the trial court in terms of s 112(2) of the Criminal
Procedure Act 51 of 1977, appellant stated, inter alia, the following:
'4.    The facts to which I plead guilty are as follows:
4.1. I was [the] person responsible for the control and transfer of funds to and from
the banking account of the Complainant, and signed the relevant documents to effect
the fraud,
4.2   I used my position of trust and authority to perpetuate the various offences of
actual and potential fraud as contained in the charge sheet,
4.3   I did so by creating fictious invoices in the existing client files and used these
invoices to draw cheques and effect electronic transfers,
4.4   I would then process a payment requisition which would be handed to the book-
keeping department for payment,
4.5    The task of the book-keeper would be to ascertain if there were sufficient funds
in the client's account to process the payment,
4.6   In all the matters there was always sufficient funds in the necessary client
accounts to effect the payment,
4.7   If a cheque was to be drawn the book-keeping employee would have the
cheque signed by a director and hand same to me,
4.8    I would then use an employee of the complainant to deposit the cheque into the
account of MBHELE, or the account of my mother, or the account of Moola Siza
Hardware, or the account of Houston Transport,
4.9
As with regard to the electronic funds transfer, the same procedure would be
followed as with the cheques to be authorized, except that the book-keeper had the
authority to transfer the funds, they would do so and transfer the funds to the
nominate accounts that I would provide,
. . .

4.11   Jointly MBHELE, and I transferred a total of R215 426.23 to the various
accounts, and which account details and amounts are as per annexure to the charge
sheet,
4.12   As with regards to the allegation of potential fraud, I do admit that on the 02nd
May 2007, I did transfer the sum of R700 000.00 from the banking account of the
Complainant to the banking account of MBHELE;
4.12.1 In this regard, I used the same procedure as I would use with regards to
electronic transfers and cheque requisitions.
4.12.2   On the 03rd May 2007, MBHELE insisted that I accompany him to the bank to
assist him to draw a cheque in the sum of R285 000.00 in the name of Auto Car
Sales, as he had intended to use these funds to purchase a motor vehicle, being a
Toyota Quantum,
4.12.3   He further attempted to withdraw an amount of R10 000.00, in cash, from the
proceeds that were in his banking account,
4.12.4   Due to the diligence of the staff of the Complainant's bank employees, no
amount was paid out of the sum of R700 000.00 and the full amount was reversed
into the banking account of the complainant. . . .'

[8] When she gave evidence in mitigation of sentence the appellant said
the following:
'At the time of committing the offence I had a brief breakup with the father of my child during
which time I got hooked up with my co-accused. After I broke up with him, which was after a
two month period, he then started demanding monies from me and that is basically how the
fraud started. After . . . [indistinct] amounts were deposited into his account, he then
demanded larger amounts of money after which he threatened that he would burn down my
mother's house. My mum's house is a thatch house which is in a rural area which after that I
then . . . [indistinct] basically putting monies into a hardware account to build a house for my
mum which is still partly incomplete.'
She stated further that at the time she transferred R700 000 into Mbhele's
account her relationship with him had ended.

[9] Under cross-examination she testified that she was not going to benefit
from the R700 000 she had transferred into the account of Mbhele. When
asked why she had not informed SWN about being threatened by Mbhele she
replied that she did not have the courage to do so. When asked why she had
not reported the matter to the police, she said:

'The state of the police station in Harding is that it depends who you are for them to
take action.'
When asked why she had not gone to the police station near SWN’s offices,
she replied: 'I did'nt consider that'.

[10] It is necessary to record that the amount of R270 304, 53, referred to in
para 6, was never recovered by SWN. Their unsuccessful attempts to recover
monies lost through sequestrating the appellant cost them an additional
R100 000.

[11] Appellant's counsel submitted that the trial court over-emphasised the
retribution and deterrence aspect of sentencing at the expense of appellant's
circumstances. It was submitted that the magistrate had failed to consider the
impact of incarceration on her dependent children and failed to consider as an
alternative, a non-custodial sentence coupled with an order that the appellant
repay in instalments the amounts defrauded. It was contended on behalf of
the appellant that the magistrate had failed to appreciate that a custodial
sentence would deprive the appellant’s children of their primary source of
financial and emotional support. It was submitted that they would be deprived
of her day to day care and nurturing and they would be left in the care of an
ageing and unwell grandmother.

[12] In S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539
(CC) at 559a-c Sachs J, dealing with the need to consider the interests of
children during sentencing proceedings of an accused who is a mother of
minor children, said the following:
'Focused and informed attention needs to be given to the interests of children at appropriate
moments in the sentencing process. The objective is to ensure that the sentencing court is in
a position adequately to balance all the varied interests involved, including those of the
children placed at risk. This should become a standard preoccupation of all sentencing courts.
To the extent that the current practice of sentencing courts may fall short in this respect,
proper regard for constitutional requirements necessitates a degree of change in judicial
mindset. Specific and well-informed attention will always have to be given to ensuring that the
form of punishment imposed is the one that is least damaging to the interests of the children,
given the legitimate range of choices in the circumstances available to the sentencing court.'

[13] At  page 560a-f of S v M, the following appears:
'(a)
A sentencing court should find out whether a convicted person is a primary caregiver
whenever there are indications that this might be so.
(b)
A probation officer's report is not needed to determine this in each case. The
convicted person can be asked for the information and if the presiding officer has reason to
doubt the answer, he or she can ask the convicted person to lead evidence to establish the
fact. The prosecution should also contribute what information it can; its normal adversarial
posture should be relaxed when the interests of children are involved. The court should also
ascertain the effect on the children of a custodial sentence if such a sentence is being
considered.
(c)
If on the Zinn-triad approach the appropriate sentence is clearly custodial and the
convicted person is a primary caregiver, the court must apply its mind to whether it is
necessary to take steps to ensure that the children will be adequately cared for while the
caregiver is incarcerated.
(d)
If the appropriate sentence is clearly non-custodial, the court must determine the
appropriate sentence, bearing in mind the interests of the children.
(e)
Finally, if there is a range of appropriate sentences on the Zinn approach, then the
court must use the paramountcy principle concerning the interests of the child as an important
guide in deciding which sentence to impose.'

[14] In S v The State, Centre for Child Law as Amicus Curiae (CCT 63/10)
[2011] ZACC 7 (29 March 2011), the Constitutional Court was dealing with the
sentencing of a young mother and the information required in order to arrive
at an appropriate sentence. At para 64 the following was said:
‘In S v M, information about the position of the young children and their care during their
mother’s incarceration was entirely lacking. Here, by contrast, an informative probation officer
report dealing with the position of the children was available to the sentencing court, and
carefully considered by the sentencing magistrate. A second report was later commissioned
by the family and, after remittal to the trial court for inclusion in the record, evaluated together
with the other evidence. Two reports were thus before the High Court and the Supreme Court
of Appeal. Neither suggests that the fundamental needs or the basic interests of the children
will be neglected if their mother is incarcerated.’

[15] The Constitutional Court went further and stated the following (para
65):

‘After hearing argument, this Court obtained a further report from a curator. Nothing in the
report of the curator suggests that the children will be inadequately cared for should their
mother be incarcerated in accordance with the sentence imposed on her.

[16] In order to deal with the situation arising in the event of incarceration,
the Constitutional Court said the following (para 66):
‘To mitigate the possibility of the children enduring hardship during their mother’s absence, it
seems to me that this Court should order the Department for Correctional Services to ensure
that a social worker visits them regularly, and that he or she provides the Department with
reports on their well-being during their mother’s absence.’
In S v Howells 1999 (1) SACR 675 (C) the court resorted to a similar order to
deal with the position of minor children after the incarceration of a mother.2

[17] At the time of sentencing in the present case, the trial court had two
reports before it, one from a social worker employed by the Department of
Social Development and another by a correctional services officer. Insofar as
the children are concerned, the report by the social worker can at best be
described as sparse. It records that she has six children, aged 18, 16, 12, 11,
8 and 4 respectively. It records that the appellant is currently living with
Mbuthuma in a three-bedroom house at Umlazi and that she has a good
relationship with him and receives moral support from him. Other than stating
that the appellant has six dependent children and setting out the date she had
her first child and that the relationship with the father of that child had broken
down nothing further is said about the children.

[18] The report by the correctional services officer is two pages long. The
only information therein concerning the children is that there are six of them.

[19] In her testimony in-chief the appellant was led wholly inadequately by
her legal representative, who elicited minimal information. In examination in-
chief she was asked more questions concerning her relationship with Mbhele
and Mbuthuma than concerning the children. Her youngest child was
mentioned in passing and no mention was made of any of the other children.

2 683b-f.

[20] The only useful information concerning the children was obtained
during cross-examination by the prosecutor. Even then the information elicited
was minimal. It appeared that the father of her eldest child, who is 18, had
never paid any maintenance from the time that child was four years old. The
father of three of her other children had made maintenance payments up until
the time of his death, shortly after her release on bail. The father of the
remaining child had moved abroad and the appellant had no further contact
with him. It appeared that the eldest child was in matric and had obtained a
bursary in advance of university studies.

[21] The social worker, whose report is mentioned above, testified and
some relevant information concerning the children was obtained from her. It
appeared from her testimony that an investigation revealed that the children
were living with their grandmother, the appellant’s mother, in Harding. The
social worker appeared uncertain about whether any of the children were
living with Mbuthuma. That then was the full extent of the evidence
concerning the children.

[22] After consideration of the evidence, the trial court said the following
concerning the appellant and her children:
'She does have other children who are 16 and 18 and I do not seriously consider those for
purposes of the determination that my duty calls me to do here regarding the best interests of
the children of the accused that I am about to sentence. . . . Section 29(2) of the Constitution
requires that a child's best interests held paramount importance in every matter concerning
the child. . . . At least on the face of it, it would appear that the accused could possibly be a
suitable candidate for direct imprisonment in light of the considerations that I have alluded to,
but I have come to the conclusion that it would not be appropriate at least at this stage to
send the accused to a direct term of or full term of imprisonment. But lest I send a wrong
message to people in the position of the accused, I have seriously come to the conclusion
that the accused must at least see the inside of gaol for a certain period of time.'

[23] In deciding an appropriate sentence, the regional court considered that
the appellant had been in a position of trust with SWN. The court took into
account that the crime was an extremely serious one. I interpose to state that
before us counsel on her behalf rightly conceded that if the trial court had

been considering these circumstances in respect of a mother who had no
dependent children, a five-year sentence of imprisonment would have been
appropriate.

[24] In order for a court to arrive at an informed decision concerning
sentence the information set out in the dicta from S v M and S v S referred to
above, was required. A court having all that information before it might still
decide, as was done in S v S and in Jowell that incarceration is called for.
Even if it does so it might with the information at hand be able to fashion an
order that will ensure the continued well-being of the children, albeit in trying
circumstances. On the other hand, it might, having all that information at hand
decide against incarceration. The point, though, is that the evidence upon
which a proper decision is to be made has to be obtained and all the actors
must play their part, including the appellant’s legal representatives and the
state, using such state resources as may be available to it. As far as
sentencing is concerned a judicial officer is not required to be passive. In this
regard see S v Siebert 1998 (1) SACR (A) 554 at 558g-559a.

[25] Having regard to the conclusions reached above, the interests of
justice are best served by setting aside the sentence and remitting the matter
to the magistrate in order that the exercise referred to above be embarked
upon.

[26] The following order is made:
(a)
The appeal is upheld and the order of the court below is set aside.
(b)
The sentence imposed by the trial court is set aside and the matter is
remitted to the trial court to impose sentence afresh after obtaining the
material evidence affecting the children in accordance with what is set out in S
v The State, Centre for Child Law as Amicus Curiae (CCT 63/10) [2011]
ZACC 7 (29 March 2011), S v M (Centre for Child Law as Amicus Curiae)
2007 (2) SACR 539 (CC) and this judgment.

________

W L SERITI

JUDGE OF APPEAL

APPEARANCES
Counsel for Appellant
:
C P Hunt SC

P Hunt

Instructed by

:
Neil Bowles Attorneys

Pietermaritzburg

Honey Attorneys

Bloemfontein

Counsel for Respondent
:
R du Preez

Director of Public Prosecutions

Pietermaritzburg

Director of Public Prosecutions

Bloemfontein
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL
IA SUMMARY – JUDGMENT DELIVERED IN COURT OF
APPEAL
1 June 2011

STATUS: Immediate

J PILLAY AND THE STATE CASE NO 739/10

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal

The appellant, Ms J Pillay was convicted by the Regional Court, Durban on 34
counts of fraud and sentenced to 5 years in terms of s 2761(i) of the Criminal
Procedure Act. This implies that she had to spend some period in custody
prior to being released on parole. At the time of her sentence, she was 32
years old, first offender, employed as a legal secretary and had 6 children.

Her appeal to the KwaZulu Natal High Court failed.

The SCA set aside her sentence, remitted the matter to the Regional Court to
impose sentence afresh after obtaining material evidence indicating what
impact her incarceration will have on her children, if such sentence is imposed
on her. Depending on the circumstances, the fresh sentence to be imposed
might or might not, involve her incarceration.

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