On March 30 the East London magistrate’s court jailed Sibongile Mani for an effective five years for theft. She stole R818,000 that was mistakenly deposited into her account.
The facts are straightforward.
A student at Walter Sisulu University, Mani, 31, like countless others, was a beneficiary of the National Student Financial Aid Scheme (NSFAS), effectively a conditional loan scheme for tertiary-level students. It covers tuition, residence and subsistence expenses, partly or in full, depending on the circumstances of the student.
Mani was entitled to R1,400 a month to purchase supplies she needed. In about June 2017 she got the shock of her life when R14m was deposited into her account. She set about spending the money as fast as she could, dispensing with R818,000 in 73 days.
The error was noticed soon afterwards and the service provider hired by Walter Sisulu University to manage the distribution of aid to students tried to get her to stop spending the money and repay what was left. She didn’t. Left with no choice, the police were approached and Mani was arrested and charged.
Worried some students would be out of pocket because of the error, fund administrator Intellimali plugged the R818,000 gap from its resources. Unsurprisingly, Mani was convicted of theft and sentenced to jail.
Now let me turn to the distressing parts of this saga.
First there are those who say she is not guilty because the money was deposited into her account without solicitation by her. This is true, but what she did is legally and morally wrong, and those who say there is doubt are dishonest or disingenuous, even if they are ignorant of the legal definition of theft, which is this: the “unlawful, appropriation of another’s property with the intention to permanently deprive the owner of his ownership”.
It goes further: “This means that theft is committed by the assumption of control of property belonging to another. The owner or possessor has also to be deprived of exercising the right of ownership.”
To simplify this definition let me use an example.
Let us say John gives his colleague Sipho a lift from work. Sipho forgets his cellphone in John’s car, only realising after John has driven off. Upon noticing the cellphone, John wipes all data from it and uses it as his own.
When Sipho calls John to ask for it back, John ignores him and continues to use the phone.
There are those who say Mani committed no crime because the money was the same as a “gift”. There are also those who believe the jail sentence is harsh. In this column I deal with the former only, using a common ethical and moral framework to make my argument. I am no lawyer, but one does not need a law degree to understand what theft is.
First, at 27, Mani had to know the money was deposited in error. She was not expecting anyone to deposit that kind of money into her bank account and a reasonable person would instantly think something had gone wrong somewhere. This is no different to expecting John to know Sipho did not intend to leave his phone in his car for John’s permanent, exclusive use.
Second, while most have focused on the elements of theft, I will focus on the elements of a gift. It can only be a gift if the original owner has a clear intention to give property to another person. This intention is only clear if it is communicated verbally or in writing. No such communication occurred in Mani’s case and she did not need to be a lawyer to understand that principle.
Even in instances where one person is given something of value to share with another, the receiver becomes a thief if they use that gift only for themselves. We regard them as having stolen the portion of the gift that was intended for the person with whom they were expected to share it.
By the time I became a teenager I knew all of this. There were no lawyers in my family, nor were there any in my village. There was not even a law firm in my little town of Mqanduli in the Eastern Cape, but I knew it was wrong to take advantage of other people’s mistakes by permanently appropriating something they never intended to give to me.
What has happened to our basic ethical standards that so many equivocate over something that is clearly wrong? What are we teaching our children about basic empathy that so many appear disinclined to consider the sense of loss felt by the person who made a mistake, such as leaving a wallet or cellphone on a counter?
If we follow the logic that says Mani received a gift, then we have a right to take for ourselves a phone someone mistakenly left in a public toilet. When they look for it, we can tell them they donated it, whether they intended to do so or not.
I am distressed that I have to explain this.
What has happened to our basic ethical standards that so many equivocate over something that is clearly wrong? What are we teaching our children about basic empathy that so many appear disinclined to consider the sense of loss felt by the person who made a mistake, such as leaving a wallet or cellphone on a counter?
We cannot have a well-functioning society, where accountability by elected officials is a norm, when the stock of citizens from whom they are drawn does not think spending money not intended for your use is wrong.
The work we need to do to reclaim our democracy from institutionalised theft must include moral consciousness, where, despite not being angels in many respects, we sign up to a moral code by which we hold one another accountable. It is not possible to have justice where dishonesty is the norm.
I have previously said I believe South Africans are inherently socially democratic in their outlook. The four social democratic values are freedom, equality, justice and solidarity.
Solidarity means always considering others who may be impacted by your actions or actions with which you agree. In Mani’s case, we ought to think about the impact of her actions on those who were similarly struggling and might have had to do without an allowance while she splurged on a good time.
Laws are there to provide clarity and consistency on a moral code a society has determined appropriate to ensure justice, equality and solidarity. When we start separating them from the rules we have chosen to govern how we live, we are in serious trouble.
Songezo Zibi is chairperson of the Rivonia Circle.
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