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IN THE HIGH COURT OF SOUTH AFRICA

BISHO

CASE NO: CA&R 12/07

In the matter between:

NONCEBA CYNTHIA ANDRIES Applicant

and

THE STATE Respondent

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JUDGMENT

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Y EBRAHIM J:

Introduction

1. The applicant seeks leave to appeal to the Supreme Court of Appeal against the judgment delivered by this Court on 10 April 2008 which partially upheld her appeal against a sentence of imprisonment for ten years imposed by the Regional Court for the Eastern Cape Division, Zwelitsha, following her conviction on 313 counts of fraud.

2. The grounds on which the applicant seeks leave to appeal are essentially the same as those relied on in her appeal against the sentence imposed by the learned regional magistrate.

3. Mr McConnachie, who appeared for the applicant, submitted that the State had confiscated all the assets of the applicant despite the trial Court not having determined the extent to which she had benefited from her fraudulent actions. This, in itself, was punishment and even though this Court had taken into account that her assets had been confiscated it had attached insufficient weight to this. When taxed on whether this was ever relied on as a ground of appeal Mr McConnachie conceded that it had not been raised previously.

4. Since the trial court was never asked to consider and comment on this issue and in the absence of it having been advanced as a ground of appeal, this Court could not condone the attempt, at this stage, to articulate from the bar a new ground of appeal. Moreover, as the State had not been forewarned hereof it was being prejudiced by being denied the opportunity to present any considered argument in reply. In the circumstances, the submission that leave to appeal on this issue is justified is without merit

5. It was contended by Mr McConnachie that in recognising that the trial magistrate had failed to have sufficient regard for the personal circumstances of the applicant this Court, in turn, had not given sufficient weight to those circumstances. I do not agree. The judgment on the merits of the appeal reveals that this Court accorded proper weight to the personal circumstances of the applicant and as a consequence suspended a substantial portion of the term of imprisonment imposed by the trial court. I do not consider that there is any merit in this ground of appeal.

6. During the appeal it was argued that this Court should follow the decision in Ndudula v The State¹ in which a sentence of fifteen years’ imprisonment, imposed by the Regional Court, was substituted on appeal with a sentence of seven years’ imprisonment, suspended for five years upon certain conditions incorporating correctional supervision.²

7. Mr McConnachie contended there was a reasonable prospect another Court would hold that the sentence imposed on appeal in the case of Ndudula was an appropriate sentence in the present case as well.

8. It is trite that while decided cases provide guidelines as assistance to a Court in determining an appropriate sentence each case must nevertheless be determined on its own merits. I have given careful consideration to the Ndudula judgment but do not agree that a similar sentence would be justified in the present matter. The applicant occupied a position of trust in the Social Welfare Department of the Eastern Cape but abused this trust by perpetrating 313 acts of fraud which involved misappropriating social welfare grants for over a year. The applicant’s modus operandi was to fraudulently place her own fingerprints and even toe prints on cash payment vouchers in place of the fingerprints of the recipients lawfully entitled to receive payment. This was a devious and carefully planned scheme and was implemented stealthily with the knowledge that the false fingerprints (and toe prints) would not readily be detectable. She exploited for her benefit the social welfare system that was intended to assist the poor and needy.

9. It was submitted that the seriousness of the offences was diminished as the learned magistrate found that the evidence established fraud but not theft. This submission is misguided and not sustainable in law. It matters little that the evidence did not establish whether or not the applicant had personally taken the money. The applicant was clearly the pivotal perpetrator at the centre of the nefarious scheme and the absence of evidence to show that she was the person who had actually taken the money does not in any way diminish her culpability. This argument is without merit.

10. In the circumstances, I am of the view that there is no reasonable prospect that another Court would arrive at a different conclusion to that reached by this Court on any of the applicant‘s grounds of appeal.

11. In the result, the application for leave to appeal to the Supreme Court of Appeal is refused.

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Y EBRAHIM 1 DECEMBER 2008

JUDGE OF THE HIGH COURT, BISHO

I agree

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M G NDZONDO

ACTING JUDGE OF THE HIGH COURT, BISHO 1 DECEMBER 2008

Judgment handed down on: 4 December 2008

Counsel for the Appellant: Mr J C McConnachie

Counsel for the Respondent: Ms N Phiti

^{N C ANDRIES v THE STATE.LAPJ}

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