THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

NOT REPORTABLE

Case No: 742/12
In the matter between:

SADHASIVAN NOLAN CHETTY
Appellant

and

THE STATE
Respondent
Neutral citation:
Chetty v The State (742/12) [2013] ZASCA 6 (14 March 2013)
Coram:
MPATI P, MTHIYANE DP AND PLASKET AJA
Heard:
27 February 2013
Delivered:
14 March 2013
Summary:  Sentence – absence of probation officer’s report – necessary
information placed before magistrate from bar – no need for
probation officer’s report – whether appellant primary caregiver of
daughter.

ORDER
On appeal from: KwaZulu-Natal High Court, Pietermaritzburg (Van Zyl J and Ploos
van Amstel AJ sitting as court of appeal):
The appeal is dismissed.
___________________________________________________________________

JUDGMENT

PLASKET AJA (MPATI P and MTHIYANE DP concurring)
[1] The appellant pleaded guilty, in the Regional Court, Durban, sitting as a
Commercial Crime Court, to 49 counts of theft and 94 counts of fraud. He was
convicted in accordance with his plea and sentenced to six years’ imprisonment,
three years of which were suspended for three years on condition that he was not
convicted of ‘fraud, theft or any of its competent verdicts committed during the said
period of suspension’. His appeal against sentence to the KwaZulu-Natal High Court,
Pietermaritzburg (Van Zyl J and Ploos van Amstel AJ) was dismissed as was his
application for leave to appeal. His appeal is before us with the leave of this court
granted on petition.

[2] The sole issue that arises in this appeal is whether the magistrate misdirected
himself by sentencing the appellant in the absence of a probation officer’s report on
whether the appellant was the primary caregiver of his young daughter and on her
best interests generally, having initially  called for such a report but later deciding
that it was not necessary.

[3] The appellant was employed as a clerk by Avis Rent A Car. He took
advantage of this position to steal various amounts of cash belonging to his
employer and which he was supposed to bank on its behalf.

[4] The amounts stolen ranged from R144.80 to R10 290.14. The 49 instances of
theft were committed during the period 3 March 2008 to 31 May 2008 – a period of
about three months. The total amount stolen by the appellant was R71 315.70.

[5] The 94 fraud convictions arose from the appellant either using for his own
purposes motor vehicles that had been returned early by clients to Avis, or allowing
family and friends to use the vehicles, while misrepresenting to his employer, to its
potential prejudice, that the vehicles were in fact still being used by its customers.
These acts of fraud occurred between June 2007 and June 2008 and caused Avis
potential prejudice amounting to R477 177.90.

[6] After the magistrate had been addressed on sentence by the appellant’s
attorney and the prosecutor, he postponed the matter. He instructed that a
correctional officer’s report and a probation officer’s report be furnished and that the
latter deal with certain issues relating to the appellant’s family circumstances. When
the matter resumed, the correctional officer’s report was available but the probation
officer’s report was not. The magistrate proceeded to sentence the appellant
nonetheless.

[7] During the course of his judgment, he explained why he had called for a
probation officer’s report and why he no longer considered it necessary to have it. He
said:
‘Your attorney has put up a very strong argument and I commend him for it, it was one of the
strongest arguments I have heard when he pleaded on your behalf in mitigation of sentence,
and set down every little factor that he could in respect of your circumstances. That was the
reason why I considered that maybe I need to get a probation officer’s report to verify what
Mr Maistry told me is the truth. I am also aware that he is an officer of this court and I have
known him for many years. We have worked together before as well and I know that he
would not stand before me and spew out garbage.’

[8] While the magistrate may not have expressed himself as clearly as one would
have liked, it seems to me that he initially thought that it was necessary to obtain a
probation officer’s report to verify certain of the factual assertions made from the bar
concerning the appellant’s family circumstances, particularly those concerned with
the care of his daughter who was two years old at the time. He had then thought
better of it. Because of his personal knowledge of the integrity of the appellant’s
attorney, he was prepared to accept the facts placed before him from the bar by the
attorney. It is clear from his judgment that this is precisely what he did.

[9] This was also accepted as being the case on appeal to the court below. Van
Zyl J said that the magistrate, in proceeding to sentence the appellant without the
probation officer’s report, ‘indicated that he accepted at face value the submissions
made by the defence attorney and consequently one gathers he deemed it
unnecessary to delay proceedings further to await the formal verifying report which
had been outstanding for many months at that time’.

[10] The purpose of a probation officer’s report in a case such as this, in which the
magistrate’s concern was whether the appellant was the primary caregiver for his
daughter and the impact of the sentencing of the appellant on her best interests, was
dealt with in S v M (Centre for Child Law as amicus curiae).1 Sachs J stated that
while a trial court should ‘find out whether a convicted person is a primary caregiver
whenever there are indications that this might be so’, it was not necessary to obtain
a probation officer’s report in every case: the accused could be asked for the
necessary information or be required to lead evidence if needs be.2

[11] In other words, the probation officer’s report is not an end in itself. It is but one
means of placing reliable information before a court in order to enable it to impose a
properly informed sentence, taking into account along with all of the other relevant
factors, the best interests of an accused person’s minor children who will inevitably
be prejudiced by the sentencing of their parent. If that information can be placed
before the court in another satisfactory way, there is no need for a probation officer’s
report.

[12] In this case, that is precisely what happened. The relevant information was
furnished by the appellant’s attorney and the magistrate decided that that information
could be accepted at face value. He considered it and took it into account, so the
appellant can hardly complain. He was not prejudiced in the least by the magistrate
deciding that it was not necessary for a probation officer to confirm the information
when he imposed sentence; indeed, he obtained the advantage of his information

1 S v M (Centre for Child Law as amicus curiae) 2007 (2) SACR 539 (CC).
2 Para 36.

being placed before the court without it being scrutinised by a probation officer or
tested by the State.

[13] In MS v S (Centre for Child Law as amicus curiae)3 Cameron J warned
against the application of S v M ‘in cases that lie beyond its ambit’.4 It only applies
when the accused is a primary caregiver of a child, not when he or she is a
breadwinner. A primary caregiver is ‘the person with whom the child lives and
performs everyday tasks like ensuring that the child is fed and looked after and that
the child attends school regularly’.5

[14] In this case, it is clear from the information placed before the magistrate that
the appellant was not his daughter’s primary caregiver. He and his wife lived
together, along with their daughter, and in the same premises as his parents. Both
the appellant and his wife were employed and so, it can safely be assumed,
contributed to the maintenance and well-being of their daughter. This was not a case
like S v M where the appellant was a single mother who had to care for her children
without the assistance of anyone else. Despite that, the magistrate considered the
effect of the incarceration of the appellant on the best interests of his daughter.

[15] The argument was advanced that because the appellant’s wife had been
injured in a motor accident some 11 years before, and is disabled to an extent as a
result, the imposition of a custodial sentence on the appellant would work hardship
on the appellant’s daughter because the appellant was responsible for most of the

3 MS v S (Centre for Child Law as amicus curiae) 2011 (2) SACR 88 (CC).
4 Para 62.
5 S v M (note 1) para 28.

physical caring for his daughter. The appellant’s attorney conceded that the
appellant’s extended family was able to help with the care of the child but argued
that it would not be as beneficial for the child as the continued presence of her
father. That is no doubt so but, as Cloete JA pointed out in S v EB,6 while one has
sympathy for children in situations such as this, ‘their emotional needs cannot trump
the duty on the State properly to punish criminal misconduct where the appropriate
sentence is one of imprisonment’.

[16] S v M is not authority for the proposition that when incarceration is otherwise
appropriate, the fact that it will cause collateral harm for the criminal’s children is
sufficient to render that sentence inappropriate.7 Given the appellant’s attorney’s
concession that the gap left as a result of the appellant’s incarceration could and
would be filled by a member or members of the appellant’s extended family, it cannot
be suggested that, to borrow the words of Cameron J in MS v S,8 the ‘fundamental
needs or the basic interests’ of the child will be neglected if the appellant is
incarcerated. More importantly, for present purposes, the magistrate considered this
issue on the basis of the information placed before him by the appellant’s attorney,
even though the appellant was not the child’s primary caregiver. He cannot be
faulted in that regard.

[17] There is, consequently, no merit in the argument that the magistrate erred in
sentencing the appellant without a probation officer’s report. I have also shown that
the magistrate considered properly the effect of sentencing the appellant to

6 S v EB 2010 (2) SACR 524 (SCA) para 14.
7 Note 1 para 42.
8 Note 3 para 64.

imprisonment on the best interests of the appellant’s daughter, even though the
appellant is not a primary caregiver. I conclude that there is no basis for interference
with the magistrate’s sentence on either account. I can discern no other misdirection
on the part of the magistrate and, in my view, it most certainly cannot be said that the
sentence imposed by the magistrate induces a sense of shock. That being so, there
is no basis upon which the sentence may be interfered with and the appeal must fail.

[18] The appeal is dismissed.

_____________________
C Plasket
Acting Judge of Appeal

APPEARANCES:
For the Appellant:

S D Slabbert
Instructed by:

J H Slabbert Attorneys, Durban
Van Wyk and Preller, Bloemfontein

For the Respondent:
S Naidu

Instructed by:
Director of Public Prosecutions, Durban
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:
14 March 2013
Status:
Immediate

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.

CHETTY V THE STATE

The Supreme Court of Appeal (SCA) today held that the trial magistrate in the above
matter did not misdirect himself by sentencing the appellant in the absence of a probation
officer’s report on whether the appellant was the primary caregiver of his young daughter
and on her best interests generally. The appeal against the sentence was initially dismissed
by the KwaZulu-Natal High Court and has now also been dismissed by the SCA.

The appellant had been sentenced to six years’ imprisonment (three of which were
suspended) following a conviction in the Regional Court, Durban, sitting as a Commercial
Crime Court, on 49 counts of theft and 94 counts of fraud. The magistrate had initially
postponed sentencing and had called for a probation officer’s report relating to the
appellants family circumstances. When the matter resumed, despite the fact that the
probation officer’s report was not available, the magistrate proceeded to sentence the
appellant. Rather than further delay the matter, the magistrate determined that he would

accept the facts of the appellant’s home circumstances as they had been placed before him
by the appellant’s attorney, stating that he had personal knowledge of the integrity of the
appellant’s attorney.

In dismissing the appeal, the SCA found that the probation officer’s report is but one means
of placing reliable information before a court in order to enable it to impose a properly
informed sentence. If that information can be placed before the court in another satisfactory
way, there is no need for a probation officer’s report. The appellant had not been prejudiced
by the magistrate’s acceptance of the information furnished by the appellant’s attorney.
Furthermore, that information established that the appellant was not the primary caregiver
of the child and that the fundamental or basic interests of the child would not be neglected
by his incarceration.