Family's bid for leniency fails as judge cites 'greed' in fraud conviction

THE Pietermaritzburg High Court has dismissed an appeal for leniency from four family members convicted of fraud and money laundering, upholding their prison sentences ranging from 4 to 11 years.

Acting Judge Naidoo ruled the family showed no true remorse and were 'motivated by greed' in their scheme to defraud a bank.

The court upheld the sentences imposed on Fathima Kudoos, Fadeela Kudoos, Tasniem Bibi Mukharib and Zaine Kudoos in the Specialised Commercial Crime Court in Durban.  

According to the judgment, Fathima was convicted of one count of fraud and 10 counts of money laundering in contravention of the POCA and sentenced to 10 years imprisonment. 

Fadeela was convicted of two counts of fraud, 15 counts of money laundering and contravention of the POCA, and sentenced to 11 years imprisonment.

Tasniem was convicted of four counts of money laundering and contravention of the POCA, and sentenced to five years imprisonment while Zaine, who was convicted of one count of money laundering and contravention of the POCA, was sentenced to four years imprisonment. 

According to the court papers, Fathima and Fadeela had applied for a loan from the complainant, a bank, purportedly to finance a piece of equipment. 

“They misrepresented to the bank that they were purchasing a new piece of equipment from a third party. The bank, acting on the misrepresentation, approved the loan and paid it into the bank account of the third party,” it read. 

The money was dispersed into various accounts, including that of Mukharib and Zaine. 

“It transpired that the equipment was not new but was an old piece of equipment owned by the first appellant (Fathima). The equipment was subsequently attached by the bank and sold on auction for a nominal amount,” it read. 

According to the court papers, all four of the family members made an offer at the sentencing stage to repay the money in the form of a partial lump sum of R70 000, and the balance in instalments over 60 months. The bank had rejected the offer.

In handing down judgment, Acting Judge Naidoo said a key element of restorative justice was an acknowledgement of wrongdoing.

“In this case), the court was not persuaded that the appellants had demonstrated any true remorse for their conduct. Accordingly, the learned magistrate's finding that a term of direct imprisonment is warranted, is beyond reproach. In my view, having regard to the judgment on sentence the appellants have not succeeded in showing an irregularity, misdirection or any other basis to warrant any interference by this court with the sentence imposed. 

“Having regard to the personal circumstances of the appellants, the circumstances under which the offence was committed and the interests of society the sentences do not induce a sense of shock, are not unduly harsh nor are they disturbingly or strikingly inappropriate. I agree with the sentiment expressed by the Supreme Court of Appeal that a ‘first offender has no right to be kept out of jail’.

“The court further considers as an aggravating factor, the fact that none of the appellants have taken the court into their confidence and disclosed the motive for the crimes. There is accordingly no evidence of genuine financial need which motivated the crime. The only inference is that the appellants were motivated by greed and acted with common purpose in perpetrating the crime.”

Acting Judge Naidoo said the family members were shown mercy by the sentencing court as it found substantial and compelling circumstances, and also ameliorated the sentence.

“Even if I am wrong in upholding the learned magistrate’s findings on sentence and I accept that the additional orders were a misdirection, on the facts and on the record, I would not have imposed different sentences.”

In addition, he ordered that the Department of Social Development together with the National Commissioner for Correctional Services to take all appropriate steps to ensure the elderly mother of Fathima and the minor children of the Fadeela,  Mukharib and Zaine were properly cared for in all respects during their period of imprisonment

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