REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)
Case number: A/620/10 Division: 7 Division Date: 12 August 2011
In the matter between:

and

JUDGMENT: 8 SEPTEMBER 2011

Schippers AJ:

[2] The appellant sought leave to appeal against both the conviction and sentence. Leave to appeal against sentence only, was granted. She was released on bail pending finalisation of the appeal.

[6] I turn now to consider the first ground of appeal, namely whether the Magistrate erred in failing to have regard to correctional supervision. Pursuant to the conviction the defence requested a postponement of the case to obtain a correctional supervision report. The Magistrate indicated that he would have to be convinced that the report was appropriate in the circumstances. The accused then gave evidence in mitigation of sentence. Thereafter the Magistrate refused the application for a postponement to obtain a correctional supervision report. The complainant's evidence was then presented after which the Magistrate imposed sentence.
[7]     In my view, this was not a misdirection for two reasons.

[8] As regards the nature and seriousness of the crimes, the Magistrate, rightly in my view, found that fraud is a serious crime which is highly prevalent in our society; and that the crimes were not committed on impulse, but calculated and well-planned. The appellant carefully devised a scheme in terms of which she fraudulently induced Capcon to advance her a total sum of R720 000. On 5 February 2008 she signed a cession of the proceeds of the sale of property in Constantia, which she was going to renovate and sell, in favour of Capcon. As consideration for the cession, the appellant received R200 000 on signature thereof. The deed of cession records that upon receipt of the proceeds of the sale of the Constantia property, Capcon would pay the appellant the proceeds of the sale, less the sum of R200 000 and certain other amounts. The deed also states that it was subject to proof of funds of R900 000 to be received from the UK.

[9] The appellant never provided Capcon with proof that the funds would be received from the UK. She knew that this was a deception at the time of signing the deed of cession. In furtherance of the deception, she forged a letter, purportedly drafted by Ferguson Bricknell, solicitors in Oxford in the UK, and forwarded it to the complainant. In evidence the appellant conceded that the letter is a forgery. The letter, addressed to the appellant, has a completion statement attached, purportedly showing that the appellant is entitled to the proceeds of the sale of a property Oxford in the sum of about £90 000. As a result of the deception Capcon advanced R200 000 to the appellant.

[10] The appellant also admitted during her evidence that she had forged another letter dated 4 April 2008, purportedly sent by Ferguson Bricknell. This letter ostensibly encloses a revised completion statement and states that the attorneys have arranged for their bankers to transfer some £90 000 into the appellant's account at Investec Bank. On the strength of this letter, Capcon advanced a further sum of R250 000 to the appellant. Mr. C. M. Wallworth, a partner of Ferguson Bricknell, testified that the letters, supposedly emanating from that firm, were indeed forgeries.

[13] The record also shows that the Magistrate had proper regard to the appellant's personal circumstances. More specifically, she was a first offender, married with three children aged 27, 19 and 18 respectively, of whom the eldest is self-supporting and the remaining two at university in the UK; and she had offered to repay the complainant at the rate of R20 000 per month.

[14] It follows that the remaining grounds of appeal cannot be sustained. To return to the central enquiry - whether the trial court could reasonably have imposed the sentence that it did. I am unable to say that the sentence imposed is shocking or disturbingly inappropriate, nor that it is unreasonable.

[15]    I would make the following order:

"The appeal is dismissed. "

SCHIPPERS AJ

I agree. It is so ordered.

BINNS-WARD J