‘It is a curious conviction and sentence’: Thuli Madonsela weighs in on Sibongile Mani verdict

Former public protector Thuli Madonsela. File photo.
Former public protector Thuli Madonsela. File photo.
Image: Esa Alexander/Sunday Times

Former public protector Thuli Madonsela has weighed in on the sentence handed to Walter Sisulu University student Sibongile Mani, saying it is a curious conviction and sentence. 

The education honours degree student was this week sentenced to five years in jail for the theft of more than R800,000 in National Student Financial Aid Scheme (NSFAS) funds.

On Wednesday the National Prosecuting Authority confirmed her R1,500 bail had been extended after her lawyer said she would appeal her conviction and sentence.

“Hers is a curious conviction and sentence. Ordinarily, when a person is erroneously paid more than the contracted amount, the owner is entitled to a delictual claim under unjustified enrichment,” claimed Madonsela.

“I know of no case where the erroneous recipient was considered a criminal and jailed.”

Madonsela said she was curious whether theft is the right conviction, given the funds abused constituted an erroneous overpayment to Mani.

“I have suggested our legal curiosity takes us to explore the principles of unjustified enrichment or unjust enrichment. I realise, based on Daniel Visser’s voluminous book titled Unjustified Enrichment, which I used for Nkandla [case], unjustified enrichment may be a stretch,” she said.

Madonsela questioned if the court’s justice paradigm was within the ubuntu spirit of S v Makwanyane.

“We must ask the question whether the court’s justice paradigm, in this case, remains within the ubuntu spirit of Makwanyane,” she said.

On Thursday the NFSAS denied reports it had a hand in the conviction and sentencing of Mani.

It said it did not institute criminal proceedings against the student as there was no basis for it to do so.

“We wish to confirm NSFAS did not institute any criminal proceedings against the student as there was no basis for it to do so.

“NSFAS was approached to furnish the department of correctional services with a victim impact assessment report, which was submitted on March 14," it said.

The NFSAS reiterated it did not suffer any financial loss due to the erroneous payment to Mani.

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