REPORTABLE
(In relation to paras [1], [15] and [16])
Case No: 29/98
IN THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
In the matter between:
T  MOOSAJEE
APPELLANT
and
THE STATE
RESPONDENT
CORAM:
SMALBERGER, VIVIER and STREICHER JJA
HEARD:
16 MARCH 1999
DELIVERED:
23 MARCH 1999
________________________________________________________
JUDGMENT
________________________________________________________
SMALBERGER JA . . .

SMALBERGER JA:
[1] The appellant, who pleaded guilty, was convicted of two counts of
theft in the Magistrate’s Court, Johannesburg.  She was sentenced to eight
and twelve months’ imprisonment respectively on the two counts.  On
appeal against her sentence to the Witwatersrand Local Division she
sought condonation for the late filing of both her amended grounds of
appeal and her heads of argument.  Her application for condonation was
refused for want of reasonable prospects of success on appeal.  This
allowed the appellant to appeal directly to this Court against such refusal
in terms of sec 21(1) read with sec 22 of the Supreme Court Act 59 of
1959, no leave to appeal being required (S v Gopal 1993(2) SACR
584(A)).  The anomaly occasioned by this situation is a matter to which

I shall revert.
[2] The first count of theft involved an amount of R1699,22 cash stolen
on 20 October 1995; the second involved the theft of R3320,12 cash on
8 November 1995.  Both amounts were stolen from the appellant’s
employer, Tiger Wheel and Tyre, where she was employed as a credit
controller.  She had been so employed for about a year preceding the
thefts.
[3] The appellant was legally represented at her trial.  She elected not
to give evidence.  The defence called as witnesses Ms Adams, a social
worker employed by the Department of Correctional Services, and Ms
Fouche, a probation officer from the Department of Social Welfare.  Both
had previously prepared reports relating to sentence.
[4] The following emerges from the record with regard to the

appellant’s personal circumstances at the time of the trial.  The appellant
was 40 years of age, divorced, with one child aged 20 years who is self-
supporting (the one report refers to the child as a son, the other as a
daughter!).  The appellant shared a home with five of her siblings who
were largely dependant upon her for support.  The appellant matriculated
in 1974 and had for the most part been in permanent employment since
then.  She lost her employment because of the thefts.  At the time she was
earning R3700,00 per month.  She subsequently managed to obtain similar
employment at a slightly higher monthly salary.  Her new employer, for
whom she was working at the time of the trial, was unaware of the
offences that she had committed.  The appellant repaid the money she
stole within two months of committing the offences.
[5] The appellant has two previous convictions.  The first, for fraud

involving a cheque for R41,00, was in January 1982.  She was sentenced
to a fine of R120,00 or 120 days imprisonment.  The second, in December
1991, was for fraud involving forged banknotes to the value of R5600,00.
On that occasion she was sentenced to a fine of R5000,00 or 150 days
imprisonment.
[6] The only information on record as to why the appellant committed
the offences is to be found in the report of Ms Fouche.  It appears from
her report that one of the appellant’s sisters is an epileptic and diabetic.
The appellant allegedly required money to bring her sister from East
London to Gauteng and for that reason “borrowed” money from her
employer intending to pay it back later.  According to the report, because
of her other family commitments “was daar geen ekstra geld beskikbaar
nie en gevolglik het sy nie geld gehad toe haar suster se mediese probleme

in November 1995 opgeduik het nie.”  The sister in question is now being
properly cared for as a hospital outpatient and is receiving free medical
treatment.  The appellant apparently expressed remorse for what she did.
[7] Both Ms Adams and Ms Fouche considered the appellant to be a
suitable candidate for correctional supervision, and both recommended
that form of punishment.  In sentencing the appellant, the trial magistrate
took note of their recommendations.  He was of the view that correctional
supervision might have been an appropriate sentence had the appellant
been a first offender.  He concluded, however, mainly because of the
appellant’s previous convictions, the seriousness of the offences, the
prevalence of such offences within his district and the fact that the
appellant had abused a position of trust, that, notwithstanding her personal
circumstances and other mitigating factors, imprisonment was the only

appropriate sentence in the circumstances.  That led him to impose the
sentence which he did.
[8] It is trite law that sentencing is pre-eminently a matter for the
discretion of the trial court.  Interference with a sentence on appeal is not
justified in the absence of a material misdirection or irregularity, or the
sentence imposed is so startlingly inappropriate as to create a sense of
shock.
[9] It was argued on behalf of the appellant that the magistrate had
misdirected himself in two respects.  In the course of his judgment the
magistrate voiced certain doubts as to the reason given by the appellant
for stealing the money and whether she had financial difficulties, in the
latter instance having regard to the fact that she repaid the amount she had
taken within two months.  It was contended, with reference to S v Caleni

1990(1) SACR 178 (C) at 181a - i, that the magistrate was bound by the
undisputed facts and was accordingly not entitled to entertain the doubts
he did.
[10] As pointed out by the court a quo, the magistrate did not reject any
statement of the appellant as false.  He merely expressed some doubt as
to the veracity of her statements to Ms Fouche.  His doubt was not
without justification.  The appellant elected not to give evidence.  Her
failure to do so has left a number of unanswered questions.  Why if, as she
said, “haar suster se mediese probleme in November 1995 opgeduik het”
was there a need to steal money in October 1995? Why did she have to
steal twice, and why the amount she did? Why did she not try and borrow
money from her employer, and how did she manage to pay back the
money so soon?

[11] In my view the magistrate’s doubts were legitimate ones
occasioned by the appellant’s failure to take the court into her confidence.
In the circumstances I do not consider the magistrate’s expression of
doubt to have constituted a misdirection.  But even if it did, I agree with
the court a quo that it was clearly not material in the sense that it caused
the magistrate not to exercise his discretion at all, or to exercise it
improperly or unreasonably (S v Pillay 1977(4) SA 531 (A) at 535F).
[12] The other suggested misdirection was that the magistrate failed
when sentencing the appellant to have regard to the fact that the previous
sentences imposed upon her were probably ineffective in bringing home
to her the seriousness of her past conduct.  Reliance in this regard was
placed on S v Dreyer 1990(2) SACR 445 (A) at 448b - c.  The facts of
that case are clearly distinguishable from the present.  The appellant is not

an uneducated or unsophisticated person.  The sentence for her second
conviction, although it did not involve imprisonment or a suspended
sentence, was not insubstantial.  Her past brushes with the law must have
alerted her to the real possibility of imprisonment for similar conduct in
future.  There is in my view no basis for holding that the magistrate
misdirected himself in this respect.
[13] All that remains is whether the sentences imposed, viewed singly
or cumulatively, induce a sense of shock.  I have sympathy for the fact
that imprisonment will mean that the appellant will lose her current
employment and that those who are dependent upon her will suffer as a
result.  The magistrate had a duty to consider not only the position of the
appellant, but the nature of the crimes committed and the wider interests
of the community.  I agree that the facts of the case coupled with the

appellant’s previous convictions render correctional supervision
inappropriate.  Imprisonment was called for, and having regard mainly to
the considerations mentioned in paragraph [7] above it cannot, in my
view, be said that the sentences induce a sense of shock.
[14] In the result the court a quo was correct in concluding that the
appellant did not have reasonable prospects of success on appeal, and the
appeal must fail.  I would go further and say that if the appeal before us
was not only against the refusal to grant condonation, but in respect of the
sentence itself, I would have dismissed the appeal.  The applications for
condonation before this Court for the late filing of (1) the notice of appeal
and (2) the record must likewise fail for lack of prospects of success.  I
propose to make no further order in regard to them.
[15] I return to the anomaly I alluded to in paragraph [1].  In S v Gopal

(supra) at 585b - e Harms AJA said the following:
“Hierdie appèl illustreer die ongewenstheid van die
(vermoedelik onvoorsiene) teenstrydigheid tussen die
bepalings van die Strafproseswet 51 van 1977 ten aansien
van appèlle en art 21(1) saamgelees met art 22 van die Wet
op die Hooggeregshof 59 van 1959.  Meer spesifiek, indien
‘n persoon in die landdroshof aan ‘n misdryf skuldig bevind
en gevonnis word en sy appèl na die Provinsiale (of, indien
van toepassing, die Plaaslike) Afdeling van die
Hooggeregshof misluk, mag hy alleen met die nodige verlof
na hierdie Hof appelleer.  As hy egter sou nalaat om sy
eerste appèl na behore voort te sit en dit nodig is om
kondonasie te verkry (soos bv vir die laat aantekening van
appèl) en dié aansoek misluk, het hy ‘n outomatiese reg van
appèl teen die afwys van sy aansoek na hierdie Hof.  Dit
geld selfs indien sy aansoek vanweë ‘n gebrek aan
vooruitsigte op appèl afgewys is.  S v Tsedi 1984 (1) SA 565
(A); S v Absalom 1989 (3) SA 154 (A).  En sou hierdie Hof
argumentsonthalwe bevind dat die Hof a quo verkeerd was
in sy beoordeling van die kanse op sukses, en die appèl
slaag, moet die strafappèl dan waarskynlik deur daardie Hof
bereg word met die wete dat hierdie Hof reeds ‘n oordeel,
wat nie bindend is nie, oor die meriete uitgespreek het.”
(See too S v N 1991(2) SACR 10 (A) at 16a - d)

[16] This unfortunate state of affairs, which has the potential to
unnecessarily burden this Court by adding to its already heavy workload,
has been allowed to persist.  It is to be hoped that the Legislature will
urgently give its attention to resolving the conflict that exists between the
statutory provisions referred to in Gopal’s case. In the meantime courts
below hearing appeals should bear in mind the consequence of a refusal
of condonation, as opposed to the dismissal of an appeal, and deal with
matters before them in a manner that will preclude appeals to this Court
that are without merit.

[17] The appeal is dismissed.
____________________
J W SMALBERGER
JUDGE OF APPEAL
VIVIER JA
)Concur
STREICHER JA
)