THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 444/09

Mavis Pemella Steyn
Appellant

and

The State
Respondent

Neutral citation:
Steyn v The State (444/09) [2010] ZASCA 49 (31 March
2010)

Coram:
Nugent JA, Griesel et Majiedt AJJA

Heard:
10 March 2010

Delivered:
31 March 2010

Summary:
Appeal against refusal of a petition for leave to appeal
against sentence – procedural irregularity and shortcomings
in respect of the provisions contained in s 309B(5)(c)(ii)  and
s 309B(6) of the Criminal Proceudre Act, 51 of 1977 – no
reasonable prospects of success in an envisaged appeal
against sentence.

ORDER

On appeal from: Free State High Court, Bloemfontein (Kruger and Van Zyl JJ
sitting as court of appeal).

The application for leave to appeal against the refusal of the appellant's
petition in the court below is dismissed.

JUDGMENT

MAJIEDT AJA (Nugent JA and Griesel AJA concurring)

[1] The appellant, Ms Mavis Pemella Steyn, was convicted on her plea of
guilty in the regional court on charges of forgery, uttering and fraud. Counts
one and two (forgery and uttering) were taken together for sentencing
purposes and she was sentenced to two years' imprisonment, conditionally
suspended for five years. On count three (fraud) the appellant was sentenced
to five years' imprisonment in terms of s 276(1)(i) of the Criminal Procedure
Act, 51 of 1977 (the Act). This appeal is against the sentence imposed.

[2] After leave to appeal had been refused by the trial court, the high court
(Van Zyl J and Voges AJ) granted leave to the appellant to lead the further
evidence of a social worker on sentence (this application to lead further
evidence was filed together with a petition for leave to appeal). The matter
was remitted to the trial court in terms of s 309C(7)(d) of the Act to receive the
further evidence.

[3] The evidence of the social worker, Dr C C Wessels, was heard by the
trial court in terms of s 309B(5)(c)(i) of the Act. No recordal of the trial court's
findings and views relating to that evidence was made, as is required in s
309B(5)(c)(ii) (the further evidence recordal).1

[4] The petition and the further evidence of Dr Wessels served before
Kruger and Van Zyl JJ (Voges AJ was unavailable at that time). Leave to
appeal was refused by the learned judges.

[5] An application for leave to appeal the refusal of the petition was
thereafter filed by the appellant. On the day before the hearing thereof, the
further evidence recordal was filed at the registrar of the high court. At the
hearing the prosecutor submitted that the interests of justice required that the
sentence be set aside and remitted to the trial court for reconsideration.
Kruger J (van Zyl J concurring) considered the high court to be functus officio
and granted leave to appeal to this court.

[6] It is plain from the aforegoing exposition that the high court had
considered the petition and dr Wessels' further evidence without the further
evidence recordal before it. This is an irregularity, since s 309B(6) provides
that any further evidence received under s 309B(5) shall for purposes of an
appeal be deemed to be evidence taken or admitted at the trial. The further
evidence would in my view also in terms of this deeming provision have to be
regarded as part of the evidence in a subsequent petition for leave to appeal.
Section 316(5)(c)(ii) and (6) contain similarly worded provisions in respect of
the further evidence recordal in proceedings in the high court as court of first
instance. Section 309B(5)(c)(ii) is couched in peremptory terms. The further

1 S 309B(5)(c)(ii) reads as follows:
'(c)
The court granting an application for further evidence must –
(i)
. . . .
(ii)
record its findings or views with regard to that evidence, including the cogency and
the sufficiency of the evidence, and the demeanour and credibility of any witness.'

evidence recordal contemplated in this section can conceivably play an
important role in the determination of an appeal (or petition for leave to
appeal), as it contains the trial court's views on the quality of the further
evidence before it (having seen the witness/es itself).2 The aforementioned
irregularity is not fatal for reasons that will become apparent.

[7] The further evidence recordal in the present matter is rather cryptic and
does not in my view comply with the prescripts of s 309B(5)(c)(ii). It reads as
follows:
'Daar was gehandel in terme van Artikel 309B(5)(c) Wet 51/77. Vir sover dit
subartikel (ii) van bogenoemde artikel betref blyk dit uit die aanklaer se
kruisondervraging presies wat die getuie se bevoegdheid behels vir sover dit gegaan
het rondom haar verslag. Rondom haar geloofwaardigheid het ek niks by te voeg nie.
Uit haar getuienis en kruisondervraging blyk dit dat sy nie oor dieselfde ondervinding
beskik as Mevrou Viljoen nie. Ek het niks by te voeg nie'.
No finding was made by the trial court on the cogency and sufficiency of the
further evidence, as is required by the said provision.

[8] Despite the procedural irregularity and shortcomings set out above, this
matter can and ought to be disposed of by this court. We have before us an
appeal against the refusal of the high court to grant leave to appeal against
sentence. We must therefore consider whether there is a reasonable prospect
of success in the envisaged appeal against sentence. The issue is
accordingly whether leave to appeal should have been granted by the high
court and not the appeal itself.3 The procedural shortcomings relate, inter alia,
to the lack of the trial court's recordal of its views and findings on the cogency
and sufficiency of the further evidence of an expert witness on sentence, the
social worker, Dr Wessels. This further evidence is before us and we are in no
worse a position to consider the cogency and sufficiency of that evidence
ourselves, than we would have been if the further evidence recordal had been
properly made. Credibility and demeanour findings are of less importance in
the case of expert evidence on sentence than in the case of, say, eyewitness

2 See: Du Toit et al, Commentary on the Criminal Procedure Act at 31-16.
3 See: S v Matshona [2008] 4 All SA 68 (SCA) para 5.

evidence on the merits.  Moreover, demeanour has a lesser role to play in
assessing the cogency of evidence than the content of the evidence itself.4 In
the present case there is nothing to suggest that Dr Wessels was anything but
honest.

[9] The appellant committed the offences whilst employed at a firm of
insurance brokers. During December 2005 she falsified a valuation certificate
in respect of a wristwatch and a ring by altering it to a certificate in respect of
a ring only. She also effected a further alteration thereto by substituting her
own name for that of the true owner. During January 2006 she lodged a claim
for the loss of the ring with Mutual & Federal Insurance, but the claim was not
met. The potential loss to the insurance company was R42 000.

[10] The appellant was 30 years old at the time of sentencing. She is
married with two children of 2 and 5 years old respectively. She was
employed and earned R2 500 per month. Her employers were prepared to re-
employ her should she receive a short term of imprisonment. She had a
previous conviction for fraud, also committed in the course of her employment
with a previous employer. She received a suspended sentence of
imprisonment on condition, inter alia, that she compensate the complainant by
regular monthly payments. It is common cause that the appellant is in default
with these payments.

[11] The appellant testified in mitigation of sentence. The State adduced the
evidence of Ms Marinda Viljoen, a probation officer in the employ of the
Department of Correctional Services. Her written report was also handed in.
As stated above, the further evidence of Dr Wessels, a social worker, was
presented later in the proceedings by the defence.

[12] The appellant's testimony concerned her childhood, employment
history and her family circumstances. She also testified about her present and

4 Body Corporate of Dumbarton Oaks v Faiga 1999 (1) SA 975 (SCA) 101 at 979I-J;
Commercial Union Insurance Co of SA Ltd v Wallace NO 2004 (1) SA 326 (SCA) at paras 40-
42; Medscheme Holdings (Pty)Ltd and another v Bhamjee 2005 (5) SA 339 (SCA)  at para
14.

past conviction. The appellant grew up in very difficult circumstances in a
home where an abusive father caused great disharmony in the family. Her
father abused alcohol and, when intoxicated, routinely battered his spouse
and young children. The unhappy marriage inevitably ended in divorce. The
appellant was compelled to leave school at a young age while in standard 6
(grade 8 in today's nomenclature), to seek employment to augment the
family's modest income. In her evidence the appellant sought to explain away
the recurring problems she experienced in her employment career of being
accused of theft or fraud by her various employers.

[13] The two pre-sentence reports compiled by Ms Viljoen and Dr Wessels
differ markedly in their assessment of the appellant. Ms Viljoen's report and
evidence portrayed the appellant as manipulative, dishonest, greedy, sly,
immature and a troublemaker. This information was gleaned mostly from
appellant's previous employers and from her husband's family. It bears
mention that Ms Viljoen did not interview the appellant's own mother. Dr
Wessels, on the other hand, sketched a far more positive image of the
appellant, emphasizing her troubled upbringing and highlighting the
appellant's concerted efforts to provide for her family. Dr Wessels made the
startling observation that the appellant's husband's family had admitted to Dr
Wessels that they had conveyed untruths concerning the appellant to Ms
Viljoen. As confirmation of this, Dr Wessels indicated to the trial court that, at
her request, the appellant's mother-in-law was present at court to testify in
corroboration of these allegations. As it turned out, the appellant's mother-in-
law did not testify. Dr Wessels had also conducted an interview with the
appellant's mother.

[14] It is not necessary to resolve the striking dichotomy between these two
pre-sentence reports. It can be accepted that the appellant has had a troubled
childhood, has struggled to make ends meet, is a caring and devoted spouse
and mother and has by and large sought to obtain gainful employment to help
make ends meet at home. But a consideration of the gravity of the offence,
taking into account that the appellant had, as before, again abused a position
of trust in her employment situation, counters her mostly mitigating personal

circumstances. A further related countervailing factor is her previous
conviction for a similar offence committed in similar circumstances.  The
benefit afforded her on the previous occasion through a suspended sentence
has not had the desired deterrent effect. Instead she is in default of the
conditions of suspension as regards her non-payment and repeat offending.

[15] The sentence imposed is in line with sentences imposed generally for
similar offences.5 There is nothing in the circumstances of this matter with
regard to the appellant or the offence which persuade me that there is a
reasonable prospect of the high court interfering on appeal with the sentence
imposed. The conditional suspension of the term of imprisonment on counts 1
and 2 and the term of imprisonment from which the appellant may be placed
under correctional supervision in the discretion of the Commissioner or a
parole board on count 3, provides the appellant with another opportunity for
rehabilitation mostly outside prison.

[16] There is no reasonable prospect of success in an appeal against
sentence and the application for leave to appeal against the refusal of the
appellant's petition in the court below is dismissed.
_____________
S A MAJIEDT
ACTING JUDGE OF APPEAL

5 S v Michele & Another 2010 (1) SACR 131 (SCA) [2009] ZASCA 116, para 10 and cases
cited there.

APPEARANCES:

For appellant:
R van Wyk

Instructed by:

Naudes Inc, Bloemfontein

For respondent:
E Liebenberg

Instructed by:

Direkteur: Openbare Vervolgings, Bloemfontein