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A former Gauteng head of the Special Investigating Unit (SIU) has begun serving an effective four-year prison sentence after he was found guilty of the theft of trust money when he was practising as an attorney in Durban in 2014.
Sifiso Kunene, 54, was dismissed from his SIU post after he was arrested and appeared in court in October 2020. It was reported at the time that he had handed himself over to Hawks investigators after taking leave, without informing his bosses why.
Kunene was this week convicted by Durban specialised regional court magistrate Garth Davis of the theft of more than R170,000 which had been deposited into his firm’s trust account by the Road Accident Fund, being part of the payout for one of his clients whose fiancé had died in a car accident.
Instead of transferring the funds to the client, magistrate Davis found that Kunene had, a few days later, transferred the money from his trust fund into the firm’s business account and then used it to pay fees of more than R40,000 for his children who were at private schools and other expenses.
Kunene pleaded not guilty to the charges. In a statement he said he did not steal the money and blamed his erstwhile business partner.
He said he had been practising law under the name of Kunene Masanga Inc. He claimed his erstwhile partner, Mzaindilke Masanga, had “deserted the practice” in 2010, leaving with many cheques while retaining the signing powers on the firm’s bank accounts until they were closed in November 2016.
He said he had never been approached to give his version and it was now unfair to have to explain what happened in 2014 (when the theft took place) when the relevant files were no longer available.
Masanga was the attorney who opened the file on behalf of Precious Swartling, whose fiancé died in an accident in 2009. When she did not receive the payout, she lodged a complaint with the Legal Practice Council and she was eventually paid out by the Fidelity Fund.
Kunene's version of events was stymied by bank record evidence, which showed he had used the money transferred into the business account and the evidence of a Nedbank employee who said Masanga had been removed as a signatory on both accounts in July 2012, leaving Kunene as the sole signatory.
While charged with the theft of R226,790, Davis convicted him of the theft of just more than R170,000, taking into account a 25% contingency fee which the firm could have legally taken from the RAF payout.
Turning to sentence, Davis said alarmingly, rather than this being a rare occurrence, it was not an isolated incident “but one that has plagued the legal profession for some time”.
“It is, without doubt, a sad indictment on the noble profession of the practice of law.”
He noted Kunene was well educated and had been completing his doctorate in law before the SIU dismissed him after becoming aware that he was charged with a criminal offence.
He said it was common in many cases where seemingly productive members of society transgressed the law, that the defence submitted the accused had the potential to again become productive members of society.
“Unfortunately that is not the only factor that has to be taken into account. The seriousness of the offence and the interests of society need to be factored in,” Davis said.
“The prosecutor has referred to numerous cases to demonstrate that due to the serious nature of these offences, almost invariably imprisonment is imposed. This is so even where the accused, in many instances, have pleaded guilty and paid the money back.
“A custodial sentence is the only appropriate one,” he said, sentencing Kunene to six years' imprisonment of which two were suspended.
Davis refused to grant leave to appeal.
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