THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No: 57/99
In the matter between
THE STATE
Appellant
and
BRADLEY TALBERT SADLER
Respondent
CORAM:
MARAIS, SCOTT JJA et MTHIYANE AJA
DATE HEARD:
14 March 2000
DATE DELIVERED:
28 March 2000
Sentence - appeal by State - increase of - when justified - “white collar” crime.
JUDGMENT
MARAIS JA

MARAIS JA:     [1]     This is an appeal with the leave of this court by the
Attorney   General  of  Kwazulu  Natal against the sentences imposed by Squires
J consequent upon the conviction of respondent upon three counts (counts 1,
3 and 4) of contravening the Corruption Act 6 of 1958, seven counts (counts 5,
7, 9, 10, 11, 12, and 13) of contravening the Corruption Act 94 of 1992, one
count (16) of forgery and uttering and eleven counts (counts 17, 18, 19, 20, 21,
22, 23, 24, 27, 28 and 29) of fraud.
[2]     The sentences imposed were these: in respect of counts 1, 3 and 4
(corruption), two years imprisonment the whole of which was suspended for five
years on condition that respondent performed one thousand hours of community
service; in respect of counts 5, 7, 9, 10, 11, 12 and 13 (corruption), a fine of
R500 000 or 5 years imprisonment; in respect of count 16 (forgery and uttering),
and counts 23, 24 and 27 to 29 (fraud), five years imprisonment the whole of
which was conditionally suspended for five years.  Respondent was acquitted

upon counts 2, 5, 6, 8, 14, 15, 26, 30 and 31.  The fine has been paid and the
thousand hours of community service has been rendered.
[3]     It is unnecessary to review the circumstances in detail.  It will suffice to
sketch the picture in broad outline.  Respondent occupied a senior managerial
position in NBS Corporate Bank.  His particular responsibility was to evolve
internal systems to facilitate the proper evaluation of risk by the bank when
considering whether or not to advance money and to apply them when
considering whether or not to authorise advances himself or when making
recommendations concerning advances to higher authority within the bank.
[4]     The system required him to assemble all information relevant to the risk
and to take particular account of the extent to which the bank might already be
at risk by reason of previously made advances either to the applicant himself or
to his businesses or to other persons for whose debt he might be liable as a
surety.  This collation of relevant information was known within the bank as

“grouping”.
[5]     Respondent’s own authority to make advances was limited initially to R1m
but later to R2m.  He was an experienced and able credit analyst with a
reputation for conservatism which earned him the sobriquet “Dr No”.  His fall
from grace was precipitated by his indulgence in the following forms of venality
and dishonesty.  In order to ensure that certain persons received advances from
the bank he either deliberately concealed the true extent of the bank’s existing
exposure to those persons and falsely represented it to be less than it was or
placed false and misleading information before it.  In one instance he forged the
signature of a director of the bank upon a document in order to induce others in
the bank to sanction an advance which would not otherwise have been made.  All
this was done with a view to enriching himself by way of acceptance of a quid
pro quo of one kind or another from the relevant applicant for an advance.  In
the main they took the form of money but there were also instances of valuable

goods (a Rolex watch and BMW and Mercedes Benz motor vehicles) and a large
loan (R400 000) on favourable terms being given to him.
[6]     The approach to be adopted in an appeal such as this is reflected in the
following passage in the judgment of Nicholas AJA in S v Shapiro 1994 (1)
SACR 112 (A) at 119j - 120c:
“It may well be that this Court would have imposed on the accused a heavier
sentence than that imposed by the trial Judge.  But even if that be assumed to be
the fact, that would not in itself justify interference with the sentence.  The
principle is clear: it is encapsulated in the statement by Holmes JA in S v Rabie
1975 (4) SA 855 (A) at 857D-F:
‘1.
In every appeal against sentence, whether imposed by a magistrate
or a Judge, the Court hearing the appeal -
(a)
should be guided by the principle that punishment is ‘pre-
eminently a matter for the discretion of the trial Court’:   and
(b)
should be careful not to erode such discretion : hence the
further principle that the sentence should only be altered if
the discretion has not been ‘judicially and properly
exercised’.
2.
The test under (b) is whether the sentence is vitiated by irregularity
or misdirection or is disturbingly inappropriate.’”

[7]     Counsel for the state submitted that the trial court had misdirected itself in
various material respects when imposing sentence.  I do not find it necessary to
reach any firm conclusion in that regard.  I shall assume in favour of respondent
that no such misdirections exist.
[8]     The traditional formulation of the approach to appeals against sentence on
the ground of excessive severity or excessive lenience where there has been no
misdirection on the part of the court which imposed the sentence is easy enough
to state.  It is less easy to apply.  Account must be taken of the  admonition that
the imposition of sentence is the prerogative of the trial court and that the
exercise of its discretion in that regard is not to be interfered with merely because
an appellate court would have imposed a heavier or lighter sentence. At the same
time it has to be recognised that the admonition cannot be taken too literally and
requires substantial qualification.  If it were taken too literally, it would deprive
an appeal against sentence of much of the social utility it is intended to have.  So

it is said that where there exists a “striking” or “startling” or “disturbing”
disparity between the trial court’s sentence and that which the appellate court
would have imposed, interference is justified.  In such situations the trial court’s
discretion is regarded (fictionally some might cynically say) as having been
unreasonably exercised.
[9]     The problem is to give practical content to these notions.  The comparison
involved in the exercise may sometimes be purely quantitative, say 3 years versus
6 years imprisonment or a fine of R50 000 versus a fine of R100 000, or it may
be qualitative, say a custodial versus a non-custodial sentence.  Where
quantitative comparisons are involved there is the problem of deciding how great
the disparity must be before it attracts the epithet “striking” or “startling” or
“disturbing”.  Where qualitative comparisons are involved one faces a similar
problem.  When compared with a sentence of wholly suspended imprisonment
which an appellate court considers would have been appropriate, a trial court’s

decision to impose a substantial fine with an alternative of imprisonment may not
be regarded as giving rise to a disparity of that character.  As against that, the
distinction which exists between a non-custodial and a custodial sentence as
those terms are commonly understood is so generally recognised to be profound
and fundamental that, save possibly in rare instances, the conclusion that a
custodial sentence was called for where a non-custodial sentence has been
imposed (or vice versa) will justify interference with the sentence imposed.
[10]     However, even in the latter class of case, it is important to emphasise that
for interference to be justified, it is not enough to conclude that one’s own
choice of penalty would have been an appropriate penalty. Something more is
required; one must conclude that one’s own choice of penalty is the appropriate
penalty and that the penalty chosen by the trial court is not.  Sentencing
appropriately is one of the more difficult tasks which faces courts and it is not
surprising that honest differences of opinion will frequently exist. However, the

hierarchical structure of our courts is such that where such differences exist it is
the view of the appellate court which must prevail.
[11]     I am satisfied that the circumstances of this case call for the imposition
of a period of direct imprisonment and that the interests of justice will not be
adequately served by leaving the sentence imposed by Squires J undisturbed.
So called “white-collar” crime has, I regret to have to say, often been visited in
South African courts with penalties which are calculated to make the game seem
worth the candle.  Justifications often advanced for such inadequate penalties are
the classification of “white-collar” crime as non-violent crime and its perpetrators
(where they are first offenders) as not truly being “criminals” or “prison material”
by reason of their often ostensibly respectable histories and backgrounds.
Empty generalisations of that kind are of no help in assessing appropriate
sentences for “white-collar” crime.  Their premise is that prison is only  a place
for those who commit crimes of violence and that it is not a place for people

from “respectable” backgrounds even if their dishonesty has caused substantial
loss, was resorted to for no other reason than self-enrichment, and entailed gross
breaches of trust.
[12] These are heresies.  Nothing will be gained by lending credence to them.
Quite the contrary.  The impression that crime of that kind is not regarded by the
courts as seriously beyond the pale and will probably not be visited with rigorous
punishment will be fostered and more will be tempted to indulge in it.  [13]     It
is unnecessary to repeat yet again what this court has had to say in the past about
crimes like corruption, forgery and uttering, and fraud.  It is sufficient to say that
they are serious crimes the corrosive impact of which upon society is too
obvious to require elaboration.  In the present case we have a bank official of
some seniority.    He was employed specifically to devise and implement a
system to enable the bank to evaluate the creditworthiness of applicants for bank
credit and to eliminate as far as possible the potential losses inherent in extending

credit to persons unlikely to be able to meet their obligations to the bank.  He
was given authority by the bank to advance credit himself within given
parameters.
[14]     He deliberately sidestepped the very controls he had been employed to
devise and implement.  He knowingly put the bank at risk in circumstances in
which it would never have gone on risk had they not been fraudulently concealed
from it.  The extent of that risk ran to millions of rands and the risks eventuated.
In return for so doing he corruptly accepted large sums of money and other
valuable benefits over a lengthy period of time.  He forged the signature of a
director of the bank in order to further his fraudulent scheme to induce the bank
to make an advance in circumstances in which he knew the bank would not have
been prepared to do so.  He did all these things in order to ingratiate himself with
certain customers of the bank and to enrich himself.
[15]     His misconduct was premeditated and persistent.  His position was one

of the utmost trust in an organization in which the need to repose trust in
employees is far greater than in most.  The losses sustained by the bank have not
been made good.  They are substantial.  The benefits he received are difficult to
quantify with accuracy but they certainly exceed R300 000.  In the light of that
gain, what appears at first blush to be a very large fine (R500 000) seems less so.
The wholly suspended prison sentences and the 1000 hours of community
service and the fine with which they were coupled were, in my view, a strikingly
inappropriate response.  In saying that I have not lost sight of respondent’s
previous history and his status as a first offender.
[16]     It is a question whether or not respondent subjectively believed that the
advances which he engineered deceitfully would be repaid in due course.  If he
did not, his crimes are graver still.  I am prepared to assume in his favour that he
did have that belief but the fact remains that he must at least have appreciated that
there was a substantial risk that they might not be repaid.  He must have surmised

that, given the true facts, the Bank would not have been prepared to take the risk.
If that were not the case, why did he resort to deceit to have the advances made?
He deliberately exposed the bank to those risks for his own personal gain.
[17] It was argued by counsel for respondent that the trial judge’s sentences
amounted to an attempt to avoid an unjust disparity between those sentences and
the sentence imposed by another court upon one of the state witnesses for
having stolen money from the bank.  First, the learned trial judge made no
reference whatsoever to that sentence when imposing sentence or when refusing
leave to appeal.  Second, very little is known of the circumstances of that case.
Third, there is nothing to suggest that that person’s crime was connected in any
way with respondent’s crimes.  Fourth, that person was sentenced to direct
imprisonment of 4 years which was converted to correctional supervision after
he had been imprisoned for just over a year.  I do not think anything can be made
of this point.

[18]     It remains to substitute what I consider to have been the appropriate
penalty.  In doing so I bear in mind that respondent has already suffered in many
ways.  He has had to bear the strain and anxiety of the criminal proceedings for
an unusually long time.  His trial had to recommence after it had run for well nigh
a month because of a successful recusal application.  The appeal by the Attorney
General has prolonged the process and respondent has had to endure the
suspense of not knowing what his fate would ultimately be.  He has no doubt had
to live with a constant sense of guilt for subjecting those near and dear to him to
the trauma and disruption of their family life which his fall from grace must have
caused.  One cannot but feel deeply for them.  Regrettably, one cannot allow
one’s sympathy for them to deter one from imposing the kind of sentence
dictated by the interests of justice and society.
[19]     Respondent has performed the 1000 hours community service and paid
his fine.  The fine can of course be repaid.  The community service cannot be

undone.  I intend therefore to leave that sentence undisturbed.  In imposing
sentence upon the counts in respect of which respondent was either fined or
given a suspended sentence of imprisonment, I shall bear in mind the other ways
in which respondent has suffered in the particular circumstances of the case and
that counts 1, 3 and 4 must be disregarded because he has already “served” that
sentence.
[20]     In the result the appeal by the Attorney General against the sentences
imposed in respect of counts 5, 7, 9, 10, 11, 12, 13, 16, 23, 24, 27, 28 and 29
must be upheld.  Had I been in the shoes of the court a quo I would have
imposed specific terms of imprisonment in respect of each of the counts to cater
for the possibility that an appeal might conceivably result in the setting aside of
one or more of the convictions.  The need for that no longer exists (this being a
court of last resort).  Instead I shall take all those counts together for purposes
of sentence.

[21]     It is ordered that the appeal against the sentences imposed in respect of
counts 5, 7, 9, 10, 11, 12, 13, 16, 23, 24, 27, 28 and 29 is upheld.  The sentences
are set aside and there is substituted for them a sentence of four (4) years
imprisonment, all such counts being taken together for purpose of sentence.  The
appeal against the sentence imposed in respect of counts 1, 3 and 4 is dismissed.

R M MARAIS
JUDGE OF APPEAL
SCOTT
JA)
MTHIYANE AJA)      CONCUR