THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case no: 158/05
REPORTABLE

In the matter between:

Maria Petronella SCHEEPERS

Appellant

and

The STATE

Respondent

Before:
Cameron JA, Mthiyane JA and Cachalia AJA
Appeal:

1 November 2005
Judgment:
10 November 2005

Criminal law – sentence – section 276(1)(i) of Criminal Procedure
Act 51 of 1977 – offers appropriate midway where imprisonment
only appropriate sentence, but offences intrinsically less serious

JUDGMENT
_____________________________________________________

CAMERON JA:

[1] In the magistrate’s court at Belfast in Mpumalanga, the
appellant was convicted of two counts of theft.  The first
involved R130; the second R1000. For these she was

sentenced to respectively one year’s and two years’
imprisonment, to run successively: an effective sentence of
three years.  An appeal to the high court in Pretoria (Van der
Westhuizen J, Dunn AJ concurring) failed.  That court refused
leave, but the appellant petitioned this court and was granted
leave for a further appeal against sentence.
[2] The two sums the appellant stole were relatively small.  And
neither complainant suffered any loss.  The appellant’s spouse
repaid the R1000, and offered to repay the R130 (which it
seems was credited to the complainant).  To understand the
sentences the magistrate imposed, one must thus go back to
the events of 24 March 1999.  We know little of them.  The only
glimmer we have is the appellant’s SAP 69 form, which details
her previous convictions.  It records that on 28 January 2000
she was convicted of four counts of fraud committed on 24
March the previous year.  On each of these counts, the same
magistrate,
Mr
Green,
sentenced
her
to
one
year’s
imprisonment.  But he suspended the entire sentence for five
years, on condition that she was not found guilty of theft or
fraud or related offences committed within the period of
suspension.  Neither her counsel nor the State could tell us

more about the nature of the frauds or the amounts involved, if
any.
[3] Far from avoiding further crime, the appellant committed the
thefts at issue shortly after the suspended sentence.  In July
2000, Mr Themba Steven Mazibuko sent his neighbour, Mr
Zitha Johannes Nkabinde, to pay R130 in school fees for his
granddaughter, a pupil at the Belfast Academy, where the
appellant was an office worker.  Nkabinde handed the money
to her.  She told him that she would give the child the receipt
on Monday.  But she never did, and Mazibuko’s account
remained in debit.  He took the matter up with Nkabinde, who
returned to the school and identified the appellant as the
culprit.  She denied all involvement, but the magistrate rightly
accepted the accounts of the complainant, Nkabinde and the
school principal, Mr Kruger.
[4] The second theft occurred on 27 October 2000.  On that day,
Mr Hendrik Jaars travelled from Waterval Boven to Belfast to
pay his two children’s school fees and bus fare.  He found the
appellant at reception.  She told him that the cashier was at the
doctor and would be back at 14h00.  Jaars told her he could
not wait until then.  The appellant then suggested he leave the
money with her; she would pay it to the cashier and give the

receipt to the children.  He did so, but no receipt came.  When
Jaars phoned the cashier, she told him no money had been
paid in.  He returned to the school, where the appellant denied
knowing him or ever receiving money from him.  The principal
encouraged him to lay a charge.  He was later told that his
money had been re-paid.  From the evidence of the principal, it
seems that had appellant’s husband not paid the deficiency,
Jaars’s children risked losing their places on the school bus.
[5] From all the evidence – particularly that of Jaars, which
involves the larger amount – it emerges that the appellant’s
acts of predation were opportunistic, in that on both occasions
she found herself temporarily in a position where she was
entrusted with cash amounts, which she then stole.  But that is
about all that can be said in extenuation of the thefts.  As the
magistrate, in passing sentence, and the high court, in
dismissing the appeal, pointed out, the appellant exploited her
position as an employee of the school and abused her
employer’s trust.  She also violated the trust of persons who
regarded her as being in a position of authority and were
entitled to accept that she would deal properly with their
money.  Worse: it is plain that both complainants had sparse
means.  The appellant was stealing from the poor.

[6] Her thefts were also aggravated by lack of remorse and by
what the magistrate called her ‘couldn't-care-less’ attitude
(traak-my-nie-agtig) in court.  At trial her lawyer could extract
little from her personal circumstances to mitigate her crimes:
when sentence was passed in October 2001 she was 44 years
old (and is thus nearly fifty now).  She has three adult children.
When she was sentenced, one grandchild was living with her
and her husband (a school principal in the neighbouring town
of Machadodorp).
[7] Taken in isolation, as the magistrate pointed out in his full and
carefully expressed reasons, the two thefts would not merit
imprisonment.  The critical question is what sentence their
commission so soon after the four-year suspended sentence
made appropriate.
[8] The magistrate expressly listed the sentencing alternatives: a
fine;
another
wholly
suspended
sentence;
correctional
supervision in terms of s 276(1)(h) of the Criminal Procedure
Act 51 of 1977; or imprisonment under s 276(1)(i) (where a

person sentenced to five years or less may be placed under
correctional supervision in the discretion of the Commissioner
of Correctional Services or a parole board after serving at least
one-sixth of the sentence).1  The magistrate doubted whether
the appellant would benefit from being granted ‘another
chance’.  He discounted the necessity for an obligatorily
graduated approach to punishment (with a straight term of
imprisonment
becoming
permissible only after a fine,
correctional supervision, and then a sentence under s
276(1)(i)).  He therefore concluded (my translation) –
‘Appellant has proved she cannot or will not change her ways, not under
the sword of four years’ imprisonment; why would she do so with any
other sentencing option?  Appellant could advance many arguments as to
why a sentence other than imprisonment should be imposed, but the court

1 In terms of s 73(7) of the Correctional Services Act 111 of 1998:
‘(a) A person sentenced to imprisonment under section 276 (1) (i) of the Criminal Procedure
Act, must serve at least one sixth of his or her sentence before being considered for
placement under correctional supervision, unless the court has directed otherwise, but if more
than one sentence has been imposed under section 276 (1) (i) of the said Act, the person
may not be placed under correctional supervision for a period exceeding five years.
(b) If a person has been sentenced to imprisonment under section 276 (1) (i) of the Criminal
Procedure Act, and to imprisonment for a period not exceeding five years as an alternative to
a fine the person must serve at least one sixth of the effective sentences before being
considered for placement under correctional supervision, unless the court has directed
otherwise.’

considers that these will just be attempts to keep the appellant out of
prison.  The only appropriate sentence that can be imposed is
imprisonment.’
The high court endorsed this.  It considered that though the
sentence was severe, a further suspended sentence would not
suffice as an alternative.
[9] Both courts’ reasoning is in essence that because neither
another suspended sentence nor correctional supervision are
appropriate, a three-year term of imprisonment is.  This
approach seems to me mistaken, for it fails to consider the mid-
way.  That is a term of imprisonment, but one mitigated by the
provisions of s 276(1)(i), which permits the discretionary
conversion of the prison sentence into correctional supervision.
[10] The particular advantage of s 276(1)(i) should always be in
the foreground when the sentencer considers that a custodial
sentence is essential, but the nature of the offence suggests
that an extended period of incarceration is inappropriate.  In
such cases, s 276(1)(i) achieves the object of a sentence
unavoidably
entailing
imprisonment,
but
mitigates
it
substantially by creating the prospect of early release on
appropriate conditions under a correctional supervision
programme.  This sentencing option seems tailor-made for the

appellant’s offences.  Neither the magistrate nor the high court
considered its precise advantages.  Their failure to do so
requires us to intervene.
[11] Appellant’s counsel urged us in doing so to impose a
sentence of correctional supervision, contending that the
matter should be remitted to the trial court for it to receive the
necessary reports, and impose appropriate conditions.  I do not
think we can accede.  It is difficult to fault the reasons the
magistrate gave for discounting correctional supervision.  It is
true that we do not know the circumstances of the fraud the
appellant committed 24 March 1999, or the amount, if any, that
was involved.  But they were serious enough for the magistrate
to impose a four-year sentence.  There was no appeal.
Doubtless because the appellant was a first offender, he
suspended the whole.  The purpose of a suspended sentence
is to spare the offender the rigours and humiliation of prison;
but the risk that the suspended sentence will be brought into
effect is designed to operate as a deterrent.  That deterrent
purpose was spilt on sand when the appellant committed these
two thefts.  The proximity between the suspended sentence
and the repeat offences is not only pronounced, but obtrusive.
And the appellant offended not just once, but a second time,

only three months later.  The magistrate cannot be faulted for
concluding that her path required a severe corrective.  A prison
sentence can hardly be avoided.
[12] Despite this, a three-year unmitigated term of imprisonment
seems to me not only severe and avoidable, given the
unconsidered alternative; but shocking in its disproportion to
the thefts.  In addition, the appellant runs the further risk that
the state may choose to apply for her previously suspended
sentence to be brought into effect.  That consequence, too,
must be added to the scale in determining how heavily the
previously committed frauds should weigh in the current
sentencing.  In my view the magistrate misdirected himself in
failing to balance the need for a prison sentence with the need
for it to be proportionate to the offences committed.  Section
276(1)(i) achieves the balance.
[13] In addition, the magistrate omitted to consider the cumulative
effect of the two sentences.  It is correct that the two thefts
were quite different offences, separated in time by three
months.  But three years in respect of both seems to me
disproportionately harsh.  The sentences should be ordered to
run concurrently.

[14] The appeal therefore succeeds.  The sentence imposed by
the magistrate is set aside.  In its stead the following sentence
is imposed:
One year’s imprisonment on the first count of theft, and two
years’ imprisonment on the second count.  The sentences are
to run concurrently.  Both sentences are imposed under s
276(1)(i) of the Criminal Procedure Act 51 of 1977.

E CAMERON

JUDGE OF APPEAL

CONCUR:
MTHIYANE JA
CACHALIA AJA