THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

CASE NO: 432/05
Not reportable

In the matter between

THE STATE

First Appellant

and

EJAZ SAEED

Respondent

Coram:
Mthiyane, Lewis, Heher JJA

Heard:
10 March 2006
Delivered: 29 March 2006

Summary: Not appropriate for court of appeal to remit matter to trial court to impose a
particular sentence where that sentence has been properly considered and regarded as
unsuitable by trial court. No misdirection by trial court: sentence imposed by it reinstated.

Neutral citation: This case may be cited as State v Saeed  [2006] SCA 43
(RSA).

JUDGMENT

LEWIS JA

[1] The respondent, Mr Ejaz Saeed, was charged in the Bellville Regional
Court with 18 counts of fraud, alternatively 18 counts of contravening s
59(1)(a) of the Value-Added Tax Act 89 of 1991. The state alleged that over a
period of 34 months he had submitted false VAT returns, fraudulently claiming
VAT refunds in the sum of R279 152.18.

[2] Saeed pleaded guilty and was convicted and sentenced to five years
imprisonment of which two years were suspended for five years on condition
that he was not convicted of fraud or theft committed during the period of
suspension. Saeed appealed against the sentence to the High Court, Cape
Town. That court upheld the appeal and ordered the trial court to impose a
sentence of correctional supervision in terms of s 276(1)(h) of the Criminal
Procedure Act
51 of 1977. The appeal before us is with the leave of this court.

[3] The State contends first that the order of the high court was not
competent because it has fettered the sentencing discretion of the trial court
in determining an appropriate sentence by requiring that correctional
supervision be imposed.1 Secondly, the State contends that there was no
misdirection on the part of the trial court that entitled the court below to
interfere with the sentence imposed by the regional court.

[4] As to the first issue, there is precedent for remitting a matter to a trial
court to impose a particular sentence. In S v R2 this court (per Kriegler JA),
after a full discussion of correctional supervision as a sentencing option, set
aside a sentence of imprisonment and remitted the matter to the trial court in
order for it to impose correctional supervision under s 276(1)(h). At issue in
that case, however, were the terms of the correctional supervision, something
not in contention in this case. This court, in S v R, was not in a position to
consider, let alone to impose, the appropriate terms of correctional

1 See S v Toms; S v Bruce 1990 (20 SA 802 (A) at 806H-I where Smalberger JA expressed
the ‘cherished principle’ that a court should have an unfettered discretion in relation to
sentence such that there be balanced and fair sentencing.
2 1993 (1) SA 476 (A).

supervision for the accused since no evidence in this regard from a
correctional officer had been given at the trial. Accordingly, having determined
that correctional supervision was the appropriate sentence to be imposed, the
court in S v R  had no option but to refer the matter back for evidence.

[5] The matter before us now is not of the same ilk: the trial court did hear
evidence from, and had the report of a correctional officer, and was in a
position to evaluate that evidence, which it did. The proposed terms of the
correctional supervision were fully set out in the report of the correctional
officer. The trial court concluded, however, that the appropriate sentence in
the circumstances of the case was one of direct imprisonment.

[6] It is not necessary to decide, however, whether the court below erred in
remitting the matter to the trial court in order to impose a prescribed sentence
in view of the conclusion to which I come about the other issue. Suffice it to
say that in the circumstances of this case, where a sentence of correctional
supervision had indeed been carefully considered by the trial court, it was not
appropriate to remit the matter to impose the sentence which the court had
already rejected as unsuitable.

[7] The second issue is whether the high court should have interfered at all
with the sentence imposed by the regional court. The proposition that an
appeal court may interfere with the trial court’s sentencing discretion only
where there has been a misdirection, or where the sentence is shockingly
inappropriate, needs no authority. Counsel for Saeed could refer us to no
misdirection. He argued rather that the trial court had not paid sufficient
attention to the personal circumstances of Saeed  and had placed too much
weight on the interests of society and the need to send a deterrent message
to the community.  Thus, he argued, the trial court had not paid sufficient
attention to the individualisation of sentence. That was the finding of the court
below.

[8] The argument, and the court below’s finding, is not borne out by the
regional court’s judgment on sentence. The regional magistrate discussed

Saeed’ s personal circumstances in considerable detail and Saeed’s counsel
could point to none that had been overlooked. He took into account the fact
that Saeed had shown contrition (by pleading guilty); that he had a wife and
children; that he ran a business; and that he had offered to pay back what he
had stolen from the fiscus. In the circumstances, said the learned regional
magistrate, Saeed was a suitable candidate for correctional supervision.
However, he considered that other factors weighed against a non-custodial
sentence. The fraud had taken place over a lengthy period, and Saeed had
enriched himself not out of need but from greed. He had breached the trust of
the fiscus. By its nature the system of VAT collection is dependent on the
trustworthiness of the VAT vendor. The state had led the evidence of the
investigating officer who showed how difficult it is to keep track of frauds
against the fiscus, and the serious economic impact that these have. And
although Saeed had offered to make restitution, at the time of the trial none
had been made. Any amounts paid subsequently (we were informed from the
Bar that some payments have now been made) are not relevant to the
sentence imposed by the trial court.

[9] In several recent cases courts have imposed custodial sentences for
theft from employers because of the ‘corrosive nature’ that it has on society as
a whole.3  While these and other cases were considered by the court below, it
nonetheless considered that insufficient attention had been given to the
individualisation of punishment, and thus considered itself at large to interfere
with the sentence imposed by the regional court.

[10] In my view, the court below erred in this regard. The regional
magistrate, as I have said, gave very careful consideration to the personal
circumstances of Saeed, and was conscious of the need to balance these
with the seriousness of the offence, the breach of trust, and the impact of the
many acts of fraud committed over a sustained period. The sentence was in

3 Per Marais JA in S v Sadler 2000 (1) SACR 331 (SCA) paras 11- 13. See also S v Sinden
1995 (2) SACR 704 (A); S v Erasmus 1998 (2) SACR 466 (SE); S v Lawrence (unreported,
case 357/04, SCA, delivered on 15 September 2005).

keeping with those recently imposed by this and other courts, and all
sentencing options considered.

[11] There was no misdirection by the regional court. And it certainly could
not be argued that the sentence imposed was shockingly inappropriate given
that the amount misappropriated was considerable and custodial sentences
for longer periods have been imposed for crimes arguably less serious.
Accordingly the high court should not have interfered with the regional court’s
sentence. That sentence is in all the circumstances suitable, and should be
reinstated.

[12] The appeal is upheld. The order of the court below is replaced with the
following;
‘The accused is sentenced to five years’ imprisonment of which two years
imprisonment are suspended for a period of five years on condition that he is
not convicted for fraud or theft during the period of suspension.’

_____________
C H Lewis
Judge of Appeal
Concur:
Mthiyane JA
Heher JA