Was there anyone else supposed to be charged alongside Sibongile for the error she played no part in? asks advocate Michael Matlapeng.
On 1 June 2017, student activist and education honours degree student at the Walter Sisulu University (“WSU”), in the Eastern Cape, Sibongile Mani (“Sibongile”) received a bank notification like no other.
Sibongile, is one of the beneficiaries of the National Student Financial Aid Scheme (“NSFAS”), which is a national government grant programme, providing financial aid to qualifying students.
WSU appointed a company called Intellimali (Pty) Ltd, (“Intellimali”) as its service provider appointed to administer the distribution of the grants to qualifying students at WSU.
Intellimali was registered on 6 May 2009 with its principal place of business in Cape Town and had Roydon Vivian, Peter Maurice, Julian Herman and Mvuyo Patrick as its directors.
Instead of transferring R1400.00 (One Thousand Four Hundred Rand) into Sibongile’s account as part of her monthly allowance from NSFAS, Intellimali erroneously transferred an unprecedented R14 000 000.00 (Fourteen Million Rand). Naturally, a shock to the system for Sibongile.
Instead of attending to the offices of NSFAS at WSU or alternatively Intellimali to report the error and ensure that the erroneous payment is rectified, Sibongile splurged more than R800 000.00 (Eight Hundred Thousand Rand) over two and a half months. She spent the money on luxuries such as phones, clothes and a well-known nightclub in Pretoria. Until 13 August 2017, when NSFAS/Intellimali found out about the error.
Sibongile was arrested in May 2018 after investigations by the Serious Commercial Crime Unit (“the Hawks”) completed their investigation and was charged with theft.
What is theft?
An accused commits theft when he/she unlawfully and intentionally appropriates movable property belonging to another. On 18 January 2019, the trial of Sibongile kicked off in the East London Regional Court. Sibongile was legally represented.
At these proceedings, the prosecutor, as the official representative of the State, put the charge of theft as described above, against Sibongile and in open court. The charge must contain all the elements of theft, in order to sustain a verdict of guilt. Care must always be taken, in order to protect an accused constitutional right to a fair trial.
What options did Sibongile have at trial?
Once the charge of theft was put to Sibongile by the State before commencement of the trial, she was asked, in the presence of her legal representative, to plead to the charge. To plead is to respond to the charge which response will determine the issues in dispute between the parties and to determine to procedure which will be followed throughout the trial. An accused after being informed of the charge will plead guilty or not guilty. In this case, Sibongile pleaded not guilty. Depending on the plea, there are many options available which will be briefly discussed below.
Section 105A plea and sentence agreement
Before Sibongile pleaded to the charge, there was an option to negotiate with the State, NSFAS and Intellimali (complainant/s) to enter into a plea and sentence agreement. This would include Sibongile pleading guilty of the charge of theft. There will also be an agreement on the appropriate sentence between all the parties which includes a just sentence imposed by the court, a postponement on the passing of sentence, or a just sentence which operation thereof is wholly or partly suspended. Where applicable, there is the possibility that compensation be paid or a civil order made, awarding NSFAS the return of the money. This process is quicker and affords all the parties involved justice. Importantly, it afforded Sibongile the opportunity to not be sentenced to a custodial sentence.
Section 112 plea of guilt
This option entails pleading guilty to the charge followed by the court questioning Sibongile to establish the facts of the case and other surrounding circumstances. If the court is satisfied that Sibongile understands the nature and consequences of entering a plea of guilt, the court will proceed to sentence her summarily. The sentence again, may include a sentence other than direct imprisonment, detention without fine, or another appropriate sentence. This process of questioning the accused, also takes place while care is given to an accused rights as enshrined in section 35 of the Constitution.
Section 115 plea of not guilty
In these facts, Sibongile entered a plea of not guilty after the charge of theft was put to her. The state proceeded to present its evidence against her. In July 2021, the State closed its case against her. Through her legal representative, Sibongile brought a section 174 of the Criminal Procedure Act application, seeking to have the charge against her thrown out, alleging that the State failed to prove all elements of the crime of theft against her.
This application was thrown out by the court. Instead of taking the stand and mounting a defense, Sibongile exercised her right to remain silent and didn’t participate further in the case against her.
On 8 February 2022, the court found Sibongile guilty of the crime of theft. On 30 March 2022, Sibongile was sentenced to (five) years direct imprisonment for the charge of theft. The same day and through her legal representative, she applied for leave to appeal both the verdict and sentence imposed by the court.
What are the considerations when passing sentence?
In exercising its discretion on sentence, the court applied the triad of Zinn. These are broad principles which guide the court when passing sentence, which look at the seriousness of the crime, the personal circumstances of the offender, and the interests of society. The punishment imposed, must not be disproportional to the offense.
In applying the triad, the court found that the conduct of Sibongile, from 1 June 2017, was wanting. She had the opportunity to return the money instead, she unlawfully and intentionally withheld the money erroneously deposited into her account, to the detriment of NSFAS.
Sibongile was legally represented. She was privy to all the options mentioned above but instead, exercised her Constitutional right to remain silent. Even with the Moria of evidence against her, Sibongile took the risk of the court returning a verdict of guilt, and imposing a sentence of direct imprisonment.
Who is wrong in acrimony?
Was there anyone else supposed to be charged alongside Sibongile for the error she played no part in? Was the court harsh in imposing the sentence which it did? Her election to remain silent and not mount a defence against the unlawful and intentional deprivation of movable property not belong to her the correct one? Were there less restrictive means available to her, the court, the complainant, which could lead to a different outcome? Will she be successful in the appeal? You be the judge.
– Michael Matlapeng, an advocate of the High Court of South Africa, is currently practicing at the Pan African Bar Association of South Africa.
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