S v Dawjee and Others (CC45/2015) [2018] ZAWCHC 63; [2018] 3 All SA 816 (WCC) (10 May 2018)

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[2018] ZAWCHC 63
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S v Dawjee and Others (CC45/2015) [2018] ZAWCHC 63; [2018] 3 All SA 816 (WCC) (10 May 2018)

IN
THE HIGH COURT OF SOUTH
AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
“
REPORTABLE
”
CASE
NO:  CC45/2015
In
the matter between:
THE
STATE
and
MOHAMMED
SALEEM
DAWJEE
Accused
1
TOWBARS
CAPE
CC
Accused
2
TOWBARS
KING CC
Accused
3
ARNO
HEINRICH
LAMOER
Accused
4
DARIUS
VAN DER ROSS
Accused
5
KOLINDHREN
(“KOLLIN/COLLIN) GOVENDER
Accused
6
SENTENCE
DELIVERED ON 10 MAY 2018
ALLIE,
J:
1.
The
factors that courts are enjoined to take into consideration when
imposing sentence are set out in
S
v Zinn
[1]
as
"…
the crime, the offender and the interests of society."
2.
In
considering an appropriate sentence, the court must strive to attain
the primary objectives of sentence which is
,
inter alia
that of deterrence, rehabilitation, where possible and
retribution.
[2]
3.
Courts
are further enjoined to temper their judicial discretion when
sentencing, with an element of mercy. In
S
v Rabie
[3]
it was said that mercy: “
…
has
nothing in common with maudlin sympathy for the accused. While
recognizing that fair punishment may sometimes have to be robust,

mercy is a balanced and humane quality of thought which tempers one's
approach when considering the basic factors of letting the
punishment
fit the criminal as well as the crime and being fair to society"
4.
In
determining sentence, the court has to take account of the accused’s
personal circumstances, the nature and circumstances
of the offences
and the consequences of the commission of the offences.
5.
The
court has to weigh up those circumstances and consequences to arrive
at a sentence which fits the offences and the accused.
That balancing
exercise invariably lead to sentence being individualized for each
accused.
The Personal
Circumstances of Accused 1
6.
The
accused was born on 19 September 1965.
7.
The
accused didn’t complete his formal education but left school
when he was in grade
3.
He
received on the job training at each new employment. He used the
skills he acquired in employment to build his businesses.
8.
A
year after his birth, his parents divorced and the accused remained
in the care of his mother. Both his parents remarried but
because of
the separation, he lost contact with his biological father. The
accused only rekindled his relationship with his biological
father as
an adult. After his father's death he took care of his stepmother who
still lives with him.
9.
The
accused remained close to his biological mother and his half siblings
born from his mother's new marriage. His sisters informed
the
probation officer that he has always been protective over his family
and that they all are still very close. However, the accused
and his
stepfather were not very close. The accused informed the Probation
Officer that he always felt like an outsider in his
own home and that
this motivated him to make a success of his life.
10.
The
accused has been married for 34 years, has three children from the
marriage and an older son from a previous relationship who
lives with
him.
11.
The
accused believes that the case contributed to the breakdown of the
marriages of two of his children.
12.
The
accused lives in a home built in an affluent area on two erven.
13.
At
the commencement of the case, the accused was the owner of two
successful tow-bar businesses.  Due to the nature of his
charges
and high legal costs, ownership of the juristic entities in which
those businesses operated was transferred to his son,
Zameer Dawjee.
The accused is now a paid employee of his son. He is a consultant in
the business.
14.
The
Probation Officer reports that
the
accused and his family are not destitute and all their daily basic
needs are met.
15.
He
was plagued with pain from an ulcer during the trial. He suffers from
diabetes, kidney & bowel illness & anxiety.
16.
As
a successful businessman, the accused was known to be kind and
generous. This is evident from donations and assistance to community

churches, mosques, schools and community members alike.
17.
In
the evidence adduced in court which was subject to cross examination
by the defence,
he
is described as a man that threatened, humiliated and placed undue
demands on police officers some of who held a lower rank to
those of
his co-accused. He went so far as to bully some police officers into
submission. To achieve that end, accused 1 often
referred to his
close relationship with his now co-accused and to the personal
favours he performed for them. He went so far as
to pertinently
allege that he had the power to have police officers transferred. He
also made reference to issues that ought not
to be within the
knowledge of a civilian but were in fact internal police matters,
thereby demonstrating an intimate knowledge
of the hierarchy and
accountability structures of the police force and how it operates.
18.
The
Probation Officer reports that
he
does not view his relationship with his co-accused as wrong nor does
he view his interactions with them as something that threatens
the
integrity of the police force.
19.
The
Probation Officer describes the consequences of the offences of which
the accused is convicted as follows:
“
Though
his actions did not threaten the community or society directly it did
make them more vulnerable. A favour for a favour system
is seldom a
challenge for an affluent individual. If such a system,
hypothetically speaking, did exist in an institution like the
Police
Service, it would leave the most vulnerable, the poor, without any
means to access the Police Services as they would not
be in a
position to adhere to 'a favour for a favour' system due to their
financial standings. Furthermore this might force them
to resort to
illegal dealings that they would have to use to receive services from
the Police
….
The
offences committed is of a serious nature and could have had far
reaching effects beyond that which were described in this case.
When
deciding on an appropriate sentence it should be taken into account
that the crime undermines the integrity and Ethical Code
the Police
Service is built on. It open the Police Service up to other criminal
activities and to the bidding of other criminals
and as such the
community to more serious crime. “
20.
The
Probation Officer explains why she believes that the accused doesn’t
show true remorse thus:
“
His
failure to see how his actions has compromised the integrity of the
Police Service makes it difficult for him to feel or show
remorse.
The accused only sees the negative effect his actions has had on him
and his family and his co-accused. He deems the resistance
of
officials to abide by his will as a direct attack on him as a person
and not as them working within the confines of the law.
“
21.
The
Probation Officer explains why she believes that the accused poses a
low risk of recividism as follows:
“
The
accused enjoys the love and support of not just his family but also
that of community members that has come to his aid in his
time of
need. The accused do not wish to expose his family to further trauma
nor does he wish to lose all standing in his community.
This shows
that behavioural change is possible and that the risk of recidivism
is low. In order to prevent further harm to his
family and in order
to restore his footing in the community he will have to abide by the
laws of this country. The love and respect
of his family and the
community is very important to the accused and this will be a great
motivator to abstain from reoffending
.
“
22.
The
Probation Officer recommends a sentence as contemplated in
Section
276
(1) (i) of the
Criminal Procedure Act 51 of 1977
as a suitable
sentence.
23.
The
accused was assessed by Ms Sentile for his suitability as a candidate
for Correctional Supervision and found to be a suitable
candidate.
She reports that the accused was physically abused by his step-father
as a child and he quickly learned that in order
to avoid beatings, he
had to give his step-father money. This is allegedly how he perceived
he should earn the love of people.
She also reported that h
e
indicated that he had an agreement with his son when he gave the
business to him that his son will be responsible for his living

expenses and his debts.
24.
Ms
Sentile further reports that:
“
The
accused turned the business into a highly profitable business,
employing approximately 30 people. However, when the case started

against him media reports claimed that the accused was a druglord so
the business took a severe knock. The various banking institutions

closed the business banking accounts along with his personal
accounts. Lines of credit which were vital for the business were also

withdrawn
.”
25.
Ms
Sentile reports that
the
accused’s daughter and her children rely on him for care and
financial support. She is not working and completing her
matric. His
youngest son and his wife live with the accused. They too rely on the
accused for care and financial support because
they are not working.
When the case started it was all over the media and no one wanted to
be associated with him and his
family.  The accused Informed Ms
Sentile that if he received a community-based sentence, he would be
able to perform community
service.  He also indicated that he is
willing to comply with all the conditions of that sentence.
26.
Dr
Czech, a psychiatrist who had a 2 hour consultation with the accused
testified as follows.
26.1.
Accused 1
had difficulty understanding why it is wrong to lend money to people
in need who re-paid the loan and who are friends
or relatives;
26.2.
Accused 1
had previously assisted community members, police officers, churches,
mosques and schools and he saw no wrong in assisting
his co-accused;
26.3.
Accused1
said that he experienced huge problems as a result of being
prosecuted in this case such as:
his
bank accounts being closed and therefore financing was no longer
possible;
26.4.
Consequently,
he couldn’t trade effectively and he was forced to sell off
properties, cars, movables and surrender policies
and he became poor
overnight;
26.5.
The
stress of standing trial and the negative publicity associated with
it caused him to become extremely anxious;
26.6.
He
lost his appetite, his diabetes became uncontrolled and he had
insomnia, which are all symptoms of Major Depression;
27.
Accused
1 has been receiving psychotherapy for approximately 10 years to deal
with his childhood trauma.
28.
Dr
Czech reported that accused 1 suffers from the following illnesses
but he couldn’t provide dates as to when the diagnosis
was made
nor could he say when treatment commenced. Accused 1 allegedly
suffers from insulin dependant diabetes; hypercholestrolaemia;

chronic reflux oesophagitis and peptic ulcer disease.
29.
He
allegedly had surgery for cancer of his kidney, a "twisted
bowel,"  an umbilical hernia and his back.
30.
Dr
Czech subsequently saw the report of Prof De Kock who treated accused
1 and he discovered that it was suspected cancer but it
transpired
that in fact it was a narrowing of the ureter.
31.
According
to Dr Czech accused 1 enjoyed the position of someone who had risen
to success and had influence among very important
people and his
self-esteem would have been considerably enhanced by that.
32.
The
doctor reported that accused 1’s set of values include
generosity, and to an extent patronage which are regarded by him
as
appropriate and not at all criminal. The notion of a minor favour
being offered in return by a functionary as illegal was not
high in
his thought processes at the time.
33.
The
doctor expressed the view that despite accused 1’s personality
traits including elements of philanthropy, self-interest
and
patronage, he was not likely to re-offend because he is terrified by
being prosecuted and the prospect of punishment.
34.
Dr
Czech failed to take account of the consequences of all the charges
on which accused 1 was convicted and in particular he didn’t

consider the fact that accused 1 not only gave gratifications to his
co-accused who he knew well but also offered and gave gratifications

to other people who he hardly knew or didn’t know at all.
35.
Dr
Czech didn’t balance against accused 1’s ostensible trait
of having difficulty refusing requests for assistance,
the fact that
in some instances, accused 1 initiated the gratifications or offer
thereof.
36.
Dr
Czech explained accused 1’s  propensity to overstate facts
for example, when he said that he sold all his properties
and that he
had a serious illness, as hyperbole.
37.
Clearly
accused 1 knew that the doctor would prepare a report for the court
and he couldn’t have intend to overstate the facts
but not
expect it to be taken literally.
38.
During
cross examination Dr Czech conceded that accused 1 has the ability to
recover remarkably from trauma and stress as evinced
by the fact that
despite his childhood, he was able to become a successful
businessman.
39.
Dr
Czech’s evidence concerning the extent to which accused 1 has
genuine remorse, whether he accepts the impact of corruption
as being
devastating on person’s other than himself and the likelihood
of him re-offending is unhelpful, vague and fraught
with unexplained
inconsistencies.
40.
Dr
Czech’s explanation for accused 1 having committed the offences
with reference to accused 1’s value system as well
as those of
the sector of society that the accused associates with, i.e. that
he’s self-esteem is enhanced by having influence
over important
people, is patronising.
The
Personal Circumstances of Accused 4
41.
He
is a 57 year old widower with 2 adult daughters aged 25 and 26 as
well as a step-daughter aged 33.
42.
He
assumed responsibility for the care of his daughters after their
mother passed away.
43.
His
biological daughters both suffer from depression as a result of the
case. One daughter temporarily discontinued her studies
and the other
became unemployed.
44.
His
family described him to the probation officer as a strong, dedicated
person who always took the community’s interest seriously.
He
was also a role model to others.
45.
He
achieved a distinguished career in the police service despite having
had a poverty-stricken childhood and his father having passed
away
when he was 10 years old.
46.
His
former colleagues expressed to the probation officer his devotion to
his career and the interests of the community.
47.
The
accused is involved in church activities.
48.
He
has no previous convictions.
49.
Apart
from taking medication for high blood pressure and kidney stones, the
accused is healthy.
50.
His
contract was not renewed after he was investigated in this case and
he retired from SAPS in November 2015. He receives an income
from his
pension fund.
51.
He
completed Grade 12. He also completed a
National
Diploma in Policing.
52.
The
probation officer describes his employment history as follows:
“
Subsequent
to the Secondary School education of the accused he commenced casual
employment with his mother in a Grabouw apple factory
in an attempt
to support his younger siblings. The accused was a Grade 6
Mathematics Teacher at Worcester Junior School for a period
of 1 year
and also did casual employment as a waiter in a local hotel.
During
the period of completing the Diploma in Policing at the Bishop Lavis
Training College the accused was promoted to the rank
of Warrant
Officer at the Bishop Lavis Training College and was appointed as a
Trainer and Instructor. In 1985 he was further promoted
to Lieutenant
at Atlantis SAPS. In 1986 the accused was appointed as Station
Commander at Atlantis SAPS for a period of 4 years.
In the year of
1991 the accused was promoted to the rank of Captain at Manenberg
SAPS. He was further promoted in 1993 to the rank
of Major and
transferred to the District Head Office in Athlone and also as Acting
Commander at Langa SAPS. During this period
the accused became the
Commander of the Anti-Riot Unit. In 1994 he was transferred to
Wynberg SAPS where he was the Superintendent
for Visible Policing.
He
was transferred to Cape Town Cluster Office and in 1995 he commenced
his responsibility as Superintendent for Visible Policing
in the Cape
Town Cluster. During this period he was seconded by the Minister of
Police "at the time" to deal with operations
pertaining to
Corruption in the Western Cape. Upon the PAGAD uprising the accused
was further seconded to the NPA in 1996 when
the Scorpions was
established. He held the rank of Brigadier and in the same year he
was appointed as Deputy Area Commissioner
of the East Metropol. In
the year 2000 the accused was appointed to take over the operation
for the busses and taxi killings. He
was further instructed to deal
with the operations of Gang Violence and in 2001 he was appointed as
Area Commissioner in the Bellville
Cluster Unit.  Between 2002
and 2010 the accused was the Divisional Commissioner for Operational
Response Services. He was
later appointed as the Provincial
Commissioner in the Western Cape at the rank of Lieutenant General at
the Green Point Provincial
Office.”
53.
The
probation officer explains why she believes that the accused doesn’t
take full responsibility for the offence as follows:
“
The
accused continues to assert that the transactions between him and
Accused number l, herein referred to as Mr Dawjee were licit.
In
light of this aspect it can therefore be assumed that the accused
disputes full responsibility for the index offence….
According
to the accused he did not participate in any corrupt activities. As
stated to the Probation Officer the accused has been
friends with Mr
Dawjee for over 25 years as they also grew together. The accused
indicated to the Probation Officer that when he
commenced his
employment at Manenberg SAPS their friendship continued.
The
accused denies extending any favours to Mr Dawjee in his capacity as
a member of the South African Police Service. According
to the
accused he underwent some financial challenges and as a friend Mr
Dawjee extended his help. The accused however paid the
entire sum of
money back to Mr Dawjee which he had borrowed from Mr Dawjee
.”
54.
The
probation officer recommends correctional supervision as a suitable
sentence option.
55.
He
was assessed as being a suitable candidate for correctional
supervision.
The
Personal Circumstances of Accused 5
56.
The
accused was born on 6 September 1969 and is now 48 years old. He is a
first offender.
57.
He
is now in his 4
th
marriage but he and his wife are currently separated because of the
strain that the case caused on their relationship although
his wife
provides moral support for him.
58.
He
has children aged 26, 21 and 18 years respectively. His youngest is a
daughter who intends to study at a tertiary institution.
59.
The
accused was reared in a poor but stable family environment.
60.
The
accused completed grade 12 and later he completed a Diploma in Public
Administration.
61.
His
family was proud of him as he was the first one to pursue a career.
62.
The
accused was promoted in the SAPS within a short period because he was
passionate about his work.
63.
He
was described by a former colleague as an excellent and proud police
officer.
64.
He
fulfilled the function of role model and mentor within his extended
family.
65.
The
accused was dependant on his pension fund after he resigned from SAPS
but those funds have decreased. He has casual employment
as a driver
for a waste management company.
66.
The
accused informed the probation officer that he lent an amount of
R3324,60 from accused 1 which he didn’t declare but which
he
paid back and he received a golf sponsorship from accused 1 which he
declared.
67.
The
accused explained to the probation officer that he could foresee how
the loans he received from accused 1 could lead to him
granting
accused 1 preferential treatment over other people.
68.
The
probation officer concludes that the accused is remorseful for having
committed the offence. However she believes that he doesn’t

fully accept responsibility for the offence nor does he perceive the
gravity of it.  The probation officer expressed herself
thus:
“
Even
though the accused admits the current offence he still maintains that
the money he received from accused No 1 was a loan between
him and a
person he perceived as his best friend. It is thus not clear to what
extent the accused accepts responsibility for the
offence. The
accused stated that he is genuinely sorry for his involvement in the
index offence. It is a concern that Mr Van Der
Ross does not
understand the gravity of the offence as it was committed by him
whilst in Public Office.”
69.
The
accused does attend church.
70.
The
probation officer recommends correctional supervision and the accused
was also assessed as being a suitable candidate.
The
Personal Circumstances of Accused 6
71.
He
is 57 years old and his date of birth is 2 February 1961.
72.
He
is married for 37 years and has two adult children aged 32 and 30
respectively, who are financially independent.
73.
The
case had had a negative impact on the accused’s children’s
reputation. A further result of the case is that the
accused’s
finances have been depleted. His reputation as an upstanding police
leader has also been detrimentally affected.
74.
He
has an 80 year old mother living in Durban who he visits from time to
time.
75.
After
completing grade 12 he later completed a
Diploma
in Police Administration.
76.
He
was employed in the SAPS for 37 years having been promoted often. At
the time of his arrest he held the position of
Provincial
Head Inspectorate Compliance.
77.
The
probation officer reports that
his
colleagues, friends, and family members, all described him as a
person who has good values, work ethics, integrity and maintains
a
professional standard.
78.
During
his employment he played a pivotal role in the skills development of
youth as part of crime prevention.
79.
The
probation officer reports on the accused’s remorse as follows:
“
He
regrets his actions and is taking full responsibility for the
offence. He claims that at the time of the offence he was not aware

that he is committing corruption. He says that he had cooperated with
the investigation and that he
is relieved the matter will be
concluded
.”
80.
The
probation officer said that she used the word regret and not remorse
because she believed that the words have the same meaning.
She
explained that in Xhosa there is only one word used to describe both
English words.
81.
The
accused is a first offender.
82.
The
accused is physically healthy and does not have any disabilities. In
1997
he was involved in a serious motor vehicle accident where he
sustained severe injuries. He was hospitalized and kept in ICU for 39

days. His jaw was fractured, his knee and ankle were broken. His
femur was broken and as a result his right leg is 1 cm shorter.
83.
The
probation officer said that the accused wanted to be able to visit
his mother in Durban and didn’t want his movement restricted

hence he wasn’t keen on correctional supervision as a sentence
and she agreed with him, hence her recommendation.
84.
The
probation officer recommends a sentence of
a
fine coupled with a suspended sentence.
85.
The
assessment officer found this accused to be a suitable candidate for
correctional supervision.
Nature
and circumstances of the Offences
Accused
1
Count
3:  Corruption
86.
Accused
1 was convicted of having given accused 4 gratifications to the value
of R67 329,50 during the period November 2011
to August 2013 in
circumstances where accused 1  foresaw the possibility that
those gratifications could cause accused 4 to
give him preferential
treatment when carrying out his duties or functions should accused 1
approach accused 4 for assistance.
Count
4:  Corruption
87.
Accused
1,2 and 3 were convicted of having given accused 5 gratifications to
the value of R3324,60 during the period April 2012
to July 2013 in
circumstances where he foresaw the possibility that those
gratifications could cause accused 5 to give accused
1,2 & 3
preferential treatment in carrying out his duties/functions should
they approach accused 5 for assistance with policing
matters.
Count
5:  Corruption
88.
Accused
1, 2 and 3 were convicted of having given accused 6 gratifications to
the value of R 24 601,44 during the period November
2011 to
October 2013 in circumstances where accused 1,2 and 3 foresaw as a
possibility that those gratifications could cause accused
6 to give
accused 1,2 & 3 preferential treatment when carrying out his
duties or functions should accused 1,2 & 3 ever
approach accused
6 for assistance with policing matters.
Count
12:  Corruption
89.
Accused
1 was convicted of having offered Brigadier A Pillay preferential
treatment at a BMW franchise in exchange for Brigadier
Pillay
procuring a speedy and successful investigation of accused 1’s
brother’s home burglary and theft of goods, in
circumstances
where accused 1 foresaw the possibility that his offer would cause
Brigadier Pillay to ensure that accused 1’s
brother receives
preferential treatment from members of the SAPS in the course of the
investigation of the home burglary and theft.
Count
13:  Corruption
90.
Accused
1 was convicted of having offered Colonel Hiranwanlal future
sponsorships to SAPS in exchange for assistance in having accused
1’s
VW Polo vehicle released from the police’s vehicle pound in
Durban expeditiously, in circumstances where accused
1 foresaw the
possibility that his offer would cause Colonel Hiranwanlal to accord
accused 1 preferential treatment.
Count
14:  Corruption
91.
Accused
1 was convicted of having given General Matakata R1000,00 in
circumstances where he foresaw the possibility that the payment
could
cause General Matakata to give him preferential treatment when
exercising her duties/ functions
inter
alia
,
in the investigation of this case.
Count
15:  Corruption
92.
Accused
1 was convicted of having given General Ntombela who was in
Mpumalanga, tickets to the Cape Town Jazz Festival in 2013 in

circumstances where accused 1 informed General Ntombela that he would
have to provide accused 1 with transport should he be in
Mpumalanga
and accused 1 expected General Ntombela to give him preferential
treatment should he require his assistance in policing
matters.
Count
16: Fraud
93.
Accused
1, 2 and 3 were convicted of fraud in the form of cover quoting in
that accused 1 provided a police officer with quotations
in the name
of accused 2,3 and Shine the Way 307 CC for the supply and fit of tow
bars to a police vehicle in circumstances where
he failed to disclose
that he was the sole member of all three close corporations whose
quotes he provided and thereby created
the impression that the
quotations were generated in an arms-length manner.
94.
Accused
1,2 and 3 were convicted on the grounds that the potential prejudice
to the SAPS is that accused 1 held out that they were
three
independent juristic entities’ quotations and in so doing, the
SAPS were denied the opportunity to make the selection
in
circumstances where each entity would not know what the other’s
quotation was and consequently the SAPS would not have
been able to
test independently the true market value of the work to be performed.
Accused 1,2 and 3 were convicted on the basis
of
dolus
directus.
95.
Accused
4’s letter of good standing that he wrote for accused 1 and
which is attached to his plea of guilty, contains a paragraph
stating
that accused 1 does business with the SAPS through proper procurement
processes.
96.
Although
accused 1 to 3 have  not been convicted on grounds of not having
followed proper procurement processes, the acknowledged
exceptionally
close and loyal friendship between accused 4 who was the Provincial
Commissioner and accused 1 who did business with
the SAPS lends
itself to a situation where accused 1 felt comfortable enough to
perpetrate the fraud in the form of cover quoting.
97.
Neither
the SAPS nor any other state entity ought to be doing business with
people who engage in fraudulent business transactions
in the course
of procuring the award of a contract from a state entity. The
consequences of the fraud committed is that it had
the potential to
mislead the SAPS and to deny it the right to compare independent
quotations. Fortunately, in this instance, the
quotes were never used
by the SAPS for the purpose of awarding a contract to accused 1.
Count 25: Defeating or
obstructing the course of justice
98.
Accused
1 was convicted on the basis of having directly intended to obstruct
the course of justice by causing an employee who knew
that he had
given accused 4 gratifications, to falsely state in that letter that
accused 1 had not given accused 4 any gratifications,
in
circumstances where accused 1 knew that the letter could be used to
counter allegations that his relationship with accused 4
was corrupt.
The form of intent was
dolus
directus
.
99.
The
purpose of having the letter drafted, signed and kept in a file is
patently obvious. It was intended to be used as proof of
accused 1’s
denial that he gave accused 4 any gratifications. The intention was
to dissuade the SAPS from investigating accused
1 and accused 4. It
is a direct attempt to steer the police off course. Although there is
no evidence that the letter was used
by accused 1 or accused 4, the
fact that accused 1 persuaded his employee to do a letter of that
nature while she knew its content
to be false is in itself of grave
concern. It speaks volumes about the lengths that accused 1 was
prepared to go to in order to
avoid being investigated and eventually
prosecuted.
Count 26: Fraud
100.
Accused
1 was convicted on the basis of having wrongfully and unlawfully
directly intended to defraud Alphera Financial Services
by failing to
comply with their terms and conditions to the effect that the vehicle
had to be kept in accused 1’s possession
or under his control;
that if the vehicle was lost/stolen, accused 1 would inform Alphera
of that fact; that Alphera be informed
if the address at which the
vehicle is kept is changed.
101.
Accused
1, was therefore convicted of having fraudulently misrepresented the
true position concerning in whose possession and where
the vehicle
was going to be kept and consequently acting to the potential
prejudice of Alphera Financial Services. The form of
intent was that
of
dolus
directus
.
102.
Accused
1, a businessman who operated two large businesses and who had
purchased and/or assisted others in the purchase of motor
vehicles,
clearly understood the essential terms upon which finance companies
usually finance the purchase of motor vehicles that
are paid in
instalments. The terms and conditions of Alphera are not unique. The
condition that the lawful possessor, namely, the
credit receiver,
must have the vehicle under his control or in his possession for the
duration of the agreement was known to accused
1, hence he didn’t
notify Alphera when Petersen failed to pay him and failed to return
the vehicle. I accept the submissions
made on accused 1’s
behalf that he ultimately paid Alphera in full. That was what he was
legally bound to do in terms of
the agreement he had entered into
with Alphera. Nonetheless, accused 1 operated in a manner where he
did not place a high premium
on truthfulness and honest dealings. In
the event that the SAPS were unable to recover the vehicle, the fraud
would have been to
the actual prejudice of Alphera, hence the
conviction is based on potential prejudice to Alphera.
Count
27: Defeating or obstructing the course of justice
103.
Accused
1 was convicted of having directly intended to defeat the course of
justice by withholding from the SAPS the true position
concerning how
the vehicle came to be in the Durban area and how it initially came
to be in the possession of one, Petersen. Accused
1 was convicted on
this count on the basis of
dolus
directus.
104.
Even
the slightest bending of the truth is an untruth. When that
misrepresentation is made to the SAPS on who the declarant of the

statement relies for assistance, it can result in an undue preference
being given to the case, which is what happened here. It
served
accused 1’s interests well to omit certain salient aspects of
his agreement with Petersen from the statement he made
to the SAPS.
That omission enabled accused 1 to have the SAPS Durban search for
his vehicle while they were brought under the impression
that the
vehicle had been unlawfully removed from Cape Town to Durban whereas
in truth it was removed lawfully to Durban with the
full knowledge
and consent of accused 1. Accused 5 admitted in his plea, to having
unlawfully prioritised the investigation into
the removal of the
vehicle.
Accused 3
105.
I
was informed belatedly by accused 1’s counsel that the close
corporation that is accused 3 has been deregistered shortly
before
the conviction.
106.
There
is accordingly no merit in imposing sentence on accused 3.
Accused 4
107.
Accused
4 was convicted of corruption on the grounds that he accepted the
gratifications given to him by accused 1, 2 and 3 to the
value of R
R67 329,50     and he caused a letter to be
drafted in which he declared that accused 1 was
a person of good
standing and was not under investigation by the SAPS. His plea was
tendered on the basis of
dolus
eventualis
and
in the absence of evidence to the contrary, it was accepted as such.
108.
Accused
4 caused the letter of good standing to be drafted in circumstances
where accused 1 was the subject of an inquiry and investigation.
Accused
5
109.
Accused
5 was convicted of corruption on the basis that he accepted
gratifications from accused 1,2 and 3 to the value of R 3324.60
and
because accused 5 made the following interventions for accused 1:
109.1.
He sent a
certain Lieutenant to certify documents for accused 1 at Parow Arms;
109.2.
He opened a
case for use of a vehicle without the owner’s consent for
accused 1,  he took accused’
s 1
statement and he gave
instructions to officers under his command to expedite the
investigation;
109.3.
He
personally and by directing officers under his command, gave accused
1 ‘s complaints of service delivery, preferential
treatment.
110.
His
plea was tendered on the basis of
dolus
eventualis
and
in the absence of evidence to the contrary, it was accepted as such.
111.
Accused
5’s attorney submitted that the interventions preceded the
gratifications and were not covered by PRECCA. This submission
was
made in replying argument on the last day of argument.
112.
The
said submission was made despite accused 5 having pleaded guilty to
corruption under PRECCA for interventions that were made
before he
received the gratifications.
113.
On
accused 5’s behalf it was argued that because he received the
gratifications on 11 May 2013, the court could only have
regard to
interventions that accused 5 made after 5 May 2013 and not to those
made before he received the gratifications.
114.
The
argument goes that the plain, ordinary meaning of
section 4(1)
(b) of
PRECCA, prohibits gratifications to public officers  so that
they will, in the future, act in a manner that is unlawful,
as
proscribed. The section provides that:
“
4 Offences in respect of
corrupt activities relating to public officers
(1)
Any-
b)
Person
who, directly or indirectly, gives or agrees or offers to give any
gratification to a public officer, whether for the benefit
of that
public officer or for the benefit of another person,
In
order to act
,
personally or by influencing another person so to act, in a manner –
(i)
That
amounts to the –
(aa)
illegal, dishonest, and authorized, incomplete, or biased; or
(bb)
misuse or selling of information or material required in the course
of the, exercise, carrying out or performance of
any powers, duties
or functions arising out of a constitutional, statutory, contractual
or any other legal obligation;
(ii)
that
amounts to-
(aa)
the abuse of a position of authority;
(bb)
a breach of trust; or
(cc)
the violation of a legal duty or a set of rules;
(iii)
designed to achieve an unjustified result; or
(iii)
that
amounts to any other and authorized or improper inducement to do or
not to do anything, is guilty of the offence of corrupt
activities
relating to public offices
.”
115.
The
ordinary meaning of the word “ in order to act…”
has to take account of the context in which it is used in
the
section. It’s function in the section is that of a purposive
clause that complements the main clause. The subject of
the purposive
clause is dependent on and gleaned from the main clause. If one asks
who must act, the answer will be obtained from
the main clause. The
words under consideration do not have a specific verb form as in a
present, future or past verb form in that
it is preceded by a
preposition which makes it an infinitive without a verb tense. The
verb occurs in the relevant phrase in an
uninflected form.
116.
On the argument
presented on behalf of accused 1 and 5, the words include a present
infinitive and future meaning. That limit sought
to be placed on the
phrase so as to exclude a past tense meaning makes no sense. If the
phrase covers present tense and future
tense, then an interpretation
that includes past tense is equally grammatically feasible.
117.
Counsel
for accused 1 submitted that legislation is not meant to operate
retroactively. That is a trite proposition and not one
which I seek
to challenge. However, the issue raised is not the retroactive
operation of PRECCA but rather whether the relevant
phrase is meant
to include interventions that precede gratifications.  An
interpretation which finds that it does include
interventions made
before gratifications is not a finding that the interventions must
have pre-dated the legislation itself.
118.
The gratifications in
the present case, provides rewards for past interventions, but were
in addition, given to induce future actions.
The accused have
admitted foreseeing that they could induce future interventions. In
this sense the gratifications that are given
both as rewards for past
interventions and to induce future interventions are criminalized.
Gratifications given and received with
both a retrospective and
prospective intention are classic “
retainer
”
gratifications. In those instances, it is unhelpful to isolate
whether the intention is only retrospective or prospective,
because
the intention in retainer corruption classically, is always both.
119.
When
read in the context of the section as a whole, the phrase means that
the provider of the gratification must have the intention
to give the
gratification
so
that the receiver of the gratification may act
in
a particular manner. It doesn’t exclusively mean that the
receiver must have already acted at the time when the gratification

was made nor does it mean that gratification and the act must be
contemporaneous, in the sense of attributing a present tense,
nor
does it mean that the act must be made in the future.  The
phrase is broad enough to include present, past and future

interventions.
120.
Accused
5, in his plea, admits that during his employment with SAPS, he
received many requests for assistance and complaints from
different
business forums, institutions, foreign communities and private
individuals that required his personal attention. As a
result of
these engagements, he became familiar with Accused 1 and they became
friends. He discovered that Accused 1 was always
involved with the
police in various helpful ways, especially through sponsorships and
donations as well as other community upliftment
projects. He always
saw Accused 1 as a friend of the police.
121.
This
admission shows that the special treatment which Accused 5 accorded
to Accused 1 prior to the petrol payments was motivated
by Accused
1’s generosity to the police in general.
122.
This Court dealt in the
judgment on conviction with all the interventions in favour of
Accused 1. The evidence regarding accused
5’s acts or omissions
which amount to interventions are discussed in the following
paragraphs of the judgment:
122.1.
Para [22]-
where
Hansraj said that accused 5 told her that she called the meeting
whereas she called a meeting with him and not with accused
1 and
accused 5 at that stage was content with accused 1 being present in
the meeting. Where accused 5 allowed accused 1 to speak
abusively and
in a threatening manner to Vlok and only at the end of the meeting
after Hansraj  told accused 1 that he can’t
behave that
way, did accused 5 follow suit and tell accused 1 that it was wrong
to behave like that and he should leave;
122.2.
Para [25]-
Where
accused 5 called a meeting ostensibly with business people in the
area and it turned out to be a meeting at accused 1’s
business
spremies with accused 1 being the only business person present and
accused 5 allowed accused 1 to question Hansraj about
his perceived
lack of sufficient police patrols around his business premises and he
allowed accused 1 to suggest that certain police
members must be
transferred from their posts;
122.3.
Para [27] & [28] -
where
accused 5 requested that Brigadier Hansraj, the station commissioner
must personally attend to an alleged burglary at the
premises of
accused 1 whereas lower rank officers would normally have attended;
122.4.
Para  [60]-
where
Vlok said that accused 5 initially sat by and allowed accused 1 to
speak to him abusively;
123.
The
court addressed the consequences of the interventions, as described
by Brigadier Hansraj, in the following paragraphs:
123.1.
Para
[31]
-
It bothered Brigadier Hansraj,  due to her encounters with some
of the interventions, that Accused 1 expected preferential
treatment
and that he had influence in and knowledge of police affairs;
123.2.
Para
[32]
–
Brigadier
Hansraj did not feel comfortable raising her concerns with Accused 4
or 5, who were her superior officers because of her
perception that
Accused 1 had a cosy relationship with them and it subsequently
transpired by their own admission, that they indeed
had a close
relationship with one another;
123.3.
Para
[34]
–
Brigadier
Hansraj registered her inquiry docket against all the accused,
including Accused 5, although she didn’t mention
the names of
accused 4 and 5 at that stage. She complained of Accused 1’s
expectations of preferential treatment from all
of the accused,
including Accused 5.
124.
The
court at
paragraph
[107]
evaluated
the evidence and concluded that it sketched a milieu in which Accused
1 had more knowledge than others of the SAPS and
that he sought to
utilize that knowledge and his friendships and relationships with the
other accused to obtain preferential treatment.
125.
At
paragraph
[137]
the court found that Accused 1 to 3 gave and accused 4 to 6, received
the gratifications, therefore accused 4 to 6 foresaw that
they  or
others under their influence, would provide preferential treatment to
Accused 1 to 3 and that Accused 1 foresaw that
members of the SAPS
would do his bidding.
126.
At
paragraph
[203]
the court found further that the evidence “…
made
out a case for accused 1 to 6 to meet concerning corrupt activities
and the influence peddling that accompanied that offence.
”
127.
It
is clear that the court found that all the acts of intervention,
whether or not they occurred before or after the gratifications
were
given or received, were relevant in concluding that the
gratifications were given and received corruptly and with the
requisite
intent, as the court found they were.
128.
Since the court has
found that all the acts of intervention are relevant to the
convictions, it follows that they are relevant to
sentence,
irrespective of when they occurred.
Accused
6
129.
He
was convicted of corruption on the grounds that he received from
accused 1,2, and 3 gratifications to the value of R24 601,44
and
because he made the following interventions for accused 1:
129.1.
He
expressed his willingness to go after hours to an address in
Gugulethu to check on a vehicle allegedly used in the burglary and

theft at the apartment of accused 1’s brother, in the event
that the cluster commander of Milnerton didn’t have anyone

available to do so;
129.2.
He
introduced accused 1 to Warrant Officer Knoetzen in his office so
that the Warrant Officer could assist accused 1 ‘s daughter

with an appeal concerning an application for a firearm licence;
129.3.
He asked
accused 1 if he had spare tickets for the Cape Town Jazz festival for
a Lieutenant General in Mpumalanga which tickets
accused 1 then gave
to the Lieutenant General;
129.4.
He
introduced accused 1 to Captain Hendricks so that the latter could
assist accused 1 with an application to temporarily possess
a
firearm;
129.5.
He
requested Constable De Jager to hand over a Norinco Pistol to accused
1 in terms of an application to temporarily possess a firearm;
129.6.
He arranged
an appointment for a Mr Ross, an associate of accused 1, with a
designated police officer who deals with firearms to
assist him with
an application for a fire arm licence;
129.7.
He asked
Warrant Officer Knoetzen to make printouts of accused 1 and his
wife’s fire-arm registrations to see whether accused
1 would
qualify for another fire-arm;
129.8.
He called
the detective commander at Phoenix SAPS in KZN province to assist
accused 1 with obtaining clearance and handing over
to accused 1 his
Polo Vehicle which was recovered and kept in police custody at the
time.
130.
His
plea was tendered on the basis of
dolus
eventualis
and
in the absence of evidence to the contrary, it was accepted as such.
131.
When
a senior police officer refers a friend/relative to a junior officer
for assistance ahead of other people requiring assistance,
that
referral carries with it, the implication that the junior officer
must render the assistance. The referral is not devoid of
influence
and power.
Nature
of  the offence of corruption
132.
Accused
4, 5 and 6’s knowledge and understanding of the offence of
corruption in general, ought to have been sufficiently
detailed
because each of them held senior leadership positions in the SAPS at
the time when they committed the offences.
133.
In
the case of accused 4 he held the most senior leadership position in
the SAPS in the province, namely that of Provincial Commissioner
of
Police.
134.
In
the case of accused 5, he was the cluster commander of the Bellville
Cluster at the time.
135.
Accused
6 was the Station Commissioner at Parow Police Station.
136.
In
addition, there have been several high - profile corruption cases
which were widely publicised, two of which are cited as authorities

herein. The case of the former National Commissioner of Police,
namely
S
v Selebi
would have come to the attention of police officers in leadership
positions. The accused in the Selebi case publicly opted for
an
explanation of an alleged corruptor being his friend. Despite that
explanation, he was convicted.
137.
Accused
4, 5 and 6 have among them approximately 80 years service in the
SAPS. It beggars belief that none of them thought that
receiving
financial assistance from accused 1 and then according him favours or
preferential treatment in their capacity as police
officers,
constituted corruption. Accused 4 and 6 informed their respective
probation officers that they didn’t believe that
they were
committing corruption. In the case of accused 4 and 6, they allegedly
believed that they were merely accepting financial
support from a
relative or longstanding friend.
138.
It
is inconceivable, that senior members of the police force would not
have realised that they were committing corruption.
139.
The
factors that would most likely have driven accused 4 to 6 to commit
corruption ought to have been identified and addressed by
the
accused. When any individual finds himself/herself in a situation
where he/she needs to accept gratifications, then it is either

attributable to greed, living beyond one’s means or a
catastrophic event which caused that person not to be able to balance

his/her budget. In this case the court has simply not been told by
the accused why they deemed it necessary to accept those
gratifications.
140.
Nor
did the accused take the court into their confidence concerning why
they deemed it prudent to make the interventions they have

acknowledged, to and on behalf of accused 1.
141.
It
is incomprehensible that accused 4 to 6, all of who were reared in
humble socio-economic conditions, who succeeded in acquiring
further
education and skills and were able to forge admirable career paths
for themselves, would place their careers, reputation,
standing and
liberty in jeopardy.
142.
The
evidence on record which the defence thoroughly challenged during
cross examination sketches a picture of accused 1 openly and
brazenly
boasting to several police officers that he has a close relationship
with accused 4 and 5, how he could have lower rank
police officers
chastised and even punished by accused 4 and/or 5.
143.
Accused
1 levelled a threat of that nature against Colonel Vlok in the
presence of Accused 5. Accused 1 had no qualms about throwing
his
weight around in the presence of accused 5.
144.
It
is no coincidence that the offences occurred while accused 4 and 5
held positions of authority and power over officers that accused
1
threatened and harassed.  Public power is not meant to be
wielded for personal satisfaction or gain. It is a trust and
responsibility bestowed upon the holder of that power which must be
exercised responsibly, for the benefit of society as a whole
and in
accordance with the prescripts that define how that power is to be
exercised.
145.
In
R
v Lavenstein
[4]
the court said the following concerning the exercise of public power:
“
If
the official has a discretion, what the law requires of an official
is to exercise that discretion with sole regard to the public

interest. That is his duty. That is the act that he has to do. When
once he exercises his discretion with regard to the private
interests
of any individual, he is doing an act in conflict with his duty, and
that, to my mind, is the only reasonable interpretation
of the words
of the statute…any other construction will have the
extraordinary and ridiculous results I have mentioned,
viz: that you
can bribe officials to any extent as long as you can show that the
actual thing they did was in the public interest…
”
146.
When
the holders of public power engage in corruption, they not only
impugn their own integrity. They also bring the standing of
the
office and position they hold into disrepute.
147.
In
an organisation such as the SAPS, the failure of senior leaders to
remain ethical, scrupulous and honest, lowers the morale of
lower
ranking officers who serve under the command of such senior leaders.
Rank and file police officers are often the coalface
of the SAPS with
who members of society interact. Society must have confidence in the
integrity of the SAPS and they must be reassured
that the morale of
the SAPS is intact.
148.
Accused
1 peddled influence in order to receive preferential treatment and
favours. He used the SAPS as his own fiefdom. In so doing
, he
squandered and pre-occupied valuable and already stretched SAPS
resources in petty squabbles, power - mongering meetings and
to do
his bidding generally. Accused 4,5 and 6 created a context in which
accused 1 could do so by fostering a close relationship
with accused
1 well knowing that accused 1 wasn’t averse to requesting
favours from them and using their close relationship
to have other
officers extend special treatment to him.
149.
All
too often corruptors or potential corruptors labour under the
illusion that anything and anyone has a price and influence can
be
bought. That notion is inimical to not only the moral fabric of
society but also the consolidation, protection and sustainability
of
hard-won freedoms enshrined in the Constitution.
150.
Accused
1’s psychiatrist’s testimony is that accused 1 has a low
level of education, he lived by a code of altruism
where he gave
charitably to the SAPS, churches mosques and the community as a whole
and he therefore didn’t consider his
actions to be unlawful at
the time.
151.
An
ordinary member of society knows that it is unlawful to do favours
for the police and to expect favours in return, irrespective
of
whether the giving and receiving is contemporaneous and charitably
driven or not.
152.
Accused
1 not only expected his co- accused to assist him preferentially, he
also expected other police officers of a lower rank
and under the
command of his co- accused to give him preferential treatment and to
bend the rules as it were for him. A prime example
of this can be
found in the evidence of Wilson where accused 1 refused to accept
that the store was a crime scene and he would
have  to wait for
his goods.  Instead, he demanded that it be given to him
immediately because of who he was.
153.
Contrary
to the opinion of his psychiatrist, accused 1 wasn’t merely
expecting preferential treatment from his co-accused
to who he had
given gratifications, but he expected preferential treatment from all
police members because he had given generously
to the SAPS and to
some of its members. If the court was to accept that in accused 1’s
mind it was a case of “
you
scratch my back and I’ll scratch yours
”
then police services would be capable of being bought by individuals.
154.
The
policy of the SAPS to foster good relations with local business
owners in order to improve service delivery, should contain

sufficient checks and balances to ensure that the SAPS is not
manipulated into becoming the personal service of a few at the
expense
of the majority.
155.
Counsel
for accused 1 to 3 and counsel for accused 6 impressed upon me the
scenario where one socialises with members of the police
force and
when one’s home is burgled, the first and natural reaction
would be to call those officers that one socialises
with. The crisp
answer to that situation postulated is thus: one ought to know better
than to compromise one’s friends by
expecting them to do
favours and to act beyond the laid down procedures for reporting
incidents of crime. To even postulate that
situation as natural and
normal is unacceptable because the ethical, moral and legal standard
for interaction with law enforcement
officers should be consistent
and it should therefore be the same, irrespective of whether one
socialises with them or not.
156.
A
policeman’s legal and ethical lot is no more onerous than that
of a judicial officer. No friend of a judicial officer could
claim
that it is natural and normal to expect preferential treatment
because of that friendship any more than a friend of a police
officer
should.
157.
While
there are degrees of corruption in that the amounts involved in each
instance may vary, the severity of the interventions
may vary, the
notion of corrupting and being corruptible when it involves
corruptees who exercise public power and who hold positions
of lawful
authority, is untenable.
158.
The
defence argued that accused 1 requests were that his co-accused and
the other officers to who he had given gratifications were
merely
expected to do their official duties and in so doing, they were not
being asked to act unlawfully, therefore their interventions
were not
as severe as those in the Selebi case.
159.
Snyman
says the following
concerning bribery for the performance of official duties:
[5]
“
(v)
The fact that what X requested Y to do accorded with Y’s
duties, and that X accordingly did not request Y to do something

“improper”.  In the common law this consideration
afforded neither X nor Y a defence.  The reason for this
rule
was that it was bribery even to  “bribe an official to do
her duty”.  Thus, if X had given public prosecutor
Y an
amount of money in order to prosecute Z of some crime, but Y would in
any event have prosecuted Z because she had the power
to do so and
also because there was sufficient evidence at her disposal of the
commission of the crime by Z, both X and Y would
have rendered
themselves guilty of the crime.  It is submitted that the same
principle applies to the 2004 act.”
160.
In
S
v van der Westhuizen
,
[6]
the court held as follows:
“
It
is a crime to bribe an official to do his duty …and it is a
crime for an official to accept money in return for doing
his duty.
As has been said, it is immaterial that the solicited action is in
the public interest: it is contrary to the public
interest to secure
a public benefit by bribery.
”
161.
In
Ex Parte
Tayob
,
[7]
the court said the following:
“
I
do not think the learned Judge erred in describing the making of
gifts to officials…as something done “to buy a more

favourable disposition than that which would come into being on its
own or perhaps is due without the presents
”
162.
In
S
v Shaik & Others
[8]
,
it was held that:
"The
seriousness of the offence of corruption cannot be over emphasized.
It offends against the rule of law and the principles
of good
governance. It lowers the moral tone of a nation and negatively
affects development and the promotion of human rights.
As a country
we have travelled a long and tortuous road to achieve democracy.
Corruption threatens our constitutional order We
must make every
effort to ensure that corruption with its putrefying effects is
haltered. Courts must send out an unequivocal message
that corruption
will not be tolerated and that punishment will be appropriately
severe."
163.
In
S
v
Selebi
[9]
it was said that:
“
19.
Corruption can be likened to a cancer. It operates insidiously
destroying the moral fibre of the nation. When it is discovered
the
damage has already been done. Whilst the particular act of corruption
may be excised, just as a malignancy may be removed in
a surgical
intervention, society is not what it was prior to the corrupt act.
The roots of justice and integrity, so vital in a
fair and democratic
society, have been permanently scarred by the corrupt act. The moral
fibre of society has to be re-built after
the excision of the
corruption.
20. Corruption
by members of a police force can never be tolerated. It is the very
antithesis of what a police force stands
for. It precludes the police
force from effectively carrying out its constitutional function. So
much more so when it is the head
of the police force that is
corrupt.”
164.
I need only add, so much more when it is the head of the police force
in the province and a cluster commander.
Evidence
concerning statistics for corruption cases
165.
The court
called for evidence to be led concerning how many cases of corruption
committed by government and police officials were
reported nationally
and in the Western Cape and how many resulted in convictions.
Mr Marius Basson of
the NPA, Western Cape
166.
He
submitted an affidavit that was handed in with the consent of the
defence. He produced statistics of reported cases, convictions
and
sentences imposed. The court did not however request statistics
concerning the sentences imposed because sentence is ultimately
the
exercise of judicial discretion.
167.
He listed
convictions for corruption in the
Western
Cape
courts for the calendar years 2014-2017 as well as for the first
three months of 2018 , i.e. until  March 2018.
168.
Convictions
over the period of 4 years and 3 months are as follows:
·
Government
officials:
84
( 46 of them were SAPS officials)
·
Private
persons:

86
·
Total
number of convictions:      170
169.
For the
period of 2014 to 2017 (excluding 3 months of 2018) the national
statistics are as follows:
·
2014
33
·
2015
26
·
2016
37
·
2017
63
Most
of the convictions relate to offences committed in terms of PRECCA.
Adv
J Schutte of the NPA head office
170.
He provided
national statistics for corruption committed by government officials
for the government’s financial years 2013
to 2017.
171.
Convictions
of government employees for corruption, nationally for the period
2013 to 2017, is 693.
172.
There is an
increasing trend, made up as follows:
·
2013/14
121
·
2014/15
130
·
2015/16
218
·
2016/17
224
·
TOTAL
693
Col
P Bergh of the DPCI, SAPS, Western Cape
173.
SAPS
registered 47 investigations arising from complaints of corruption
allegedly committed by SAPS officials in the Western Cape
for the
government’s financial years 2014 to 2018.
174.
The number
of cases registered each year in the Western Cape by SAPS have not
increased significantly.
175.
Bergh
didn’t provide statistics of how many registered cases resulted
in convictions.
M
Seseko of the Independent Police Investigative Directorate (IPID)
176.
Mr M
Seseko, the head of investigations at IPID, testified as follows:
177.
He produced
statistics on all complaints IPID has received of corruption against
SAPS officials in the whole of the South Africa
for the five years
from 2012/2013 to 2017/2018. Those were 17 complaints of corruption.
178.
IPID
statistics for corruption committed by SAPS officials is in addition
to SAPS statistics. When that amount is added to the SAPS
statistic
of 47 for the four years from 2013/2014 – the total Western
Cape incidence becomes 64, which excludes the SAPS
statistic for
2012/2013.
179.
The total
incidence of IPID corruption complaints against SAPS officials for
the whole of the country over the five years is 568.
180.
Mr Sesoko
described how difficult corruption investigations against SAPS
officials are. He ascribed, the difficulty to,
inter
alia
:
many complainants being reluctant either to make complaints or to be
identified and to testify. The majority of complaints (320
of the
569) are then categorized as “unknown”, as the
perpetrators can’t be identified.
181.
Despite
those investigative difficulties, he defended his trend analysis
which reflect that the incidence of complaints have increased
over
the five years.
The
Purpose of Remorse as a Mitigating Factor
182.
Demonstrations
of actual remorse must be taken into account by a sentencing court
because it represents an acknowledgement of the
impact of the offence
on the complainant, the accused and on society. It therefore augurs
well for an accused person’s prospects
of meaningful
rehabilitation.
183.
Various
indicators of remorse are present in this case. Those are as follows:
183.1
The change
of plea from not guilty to guilty; and
183.2
Expressions
of regret uttered to the probation officer and the social worker in
the case of all the accused;
184.
In
S
v Matyityi
2011
(1) SACR 40
(SCA) at para 13 the court said the following concerning
remorse:
“
[
13]
Remorse was said to be manifested in him pleading guilty and
apologising, through his counsel (who did so on his behalf from
the
bar) to both Ms KD and Mr Cannon. It has been held, quite correctly,
that a plea of guilty in the face of an open and shut
case against an
accused person is a neutral factor. The evidence linking the
respondent to the crimes was overwhelming. ...There
is, moreover, a
chasm between regret and remorse.
Many
accused persons might well regret their conduct but that does not
without more translate to genuine remorse.
Remorse
is a gnawing pain of conscience for the plight of another. Thus
genuine contrition can only come from an appreciation and

acknowledgement of the extent of one’s error.
Whether
the offender is sincerely remorseful and not simply feeling sorry for
himself or herself at having been caught is a factual
question. It is
to the surrounding actions of the accused rather than what he says in
court that one should rather look.
In
order for the remorse to be a valid consideration, the penitence must
be sincere and the accused must take the court fully into
his or her
confidence.
Until
and unless that happens the genuineness of the contrition alleged to
exist cannot be determined. After all, before a court
can find that
an accused person is genuinely remorseful, it needs to have a proper
appreciation of inter alia: what motivated the
accused to commit the
deed; what has since provoked his or her change of heart; and whether
he or she does indeed have a true appreciation
of the consequences of
those actions. There is no indication that any of this, all of which
was peculiarly within the respondent's
knowledge, was explored in
this case.”
Applicability
of Prescribed Minimum Sentence Legislation
185.
Accused 4
and 6 whose gratifications were R67 329,50 and R24601,44
respectively and who were police officers at the time of
the offences
would ordinarily have been subject to the application of section 52
(2) (a) (i) read with para (c) (i) of Part II
of Schedule 2 of
Act 105 of 1997 which prescribes a minimum sentence of 15 years
imprisonment where the amount of gratifications
exceed R10 000
for law-enforcement officials.
186.
The
indictment however contains the suggestion that the threshold for the
applicability of the minimum sentence is gratifications
to the value
of R100 00. The indictment also contemplated that the minimum
sentence applied because it was alleged that the
accused acted in
concert as a syndicate or enterprise. The state however led no
evidence concerning the allegation of common purpose
and the accused
were all acquitted on the counts relating to the  Prevention of
Organised Crime Act (POCA) .
187.
During
negotiations between the state and the defence for a change of plea
from not guilty to guilty, the state overlooked the fact
that the
threshold for the minimum sentence was R10 000 and held the view
that since the POCA charges would fall away, the
minimum sentence
would no longer apply once the plea had changed. The state
accordingly informed accused 4, who was unrepresented
at the time, in
writing that if he changed his plea, the minimum sentence would not
apply to him. Accused 4 submitted that he was
induced to change his
plea by that representation.
188.
Most cases
concerning whether a court ought to apply the minimum sentence
concern situations where it would be unfair to do
so because the
accused was not adequately warned or not warned at all prior to his
plea, that the minimum sentence applied.
189.
Khobane
v S
[10]
is
one such case where the Supreme Court of Appeal held as follows:
“
[14] In Makatu, Lewis JA accepted
the need to adopt an approach that was ‘neither absolute nor
inflexible’. In S v Ndlovu;
S v Sibisi, which was cited with
approval by this court in S v Mabuza & others, it was said that:
‘
[I]t
will not be essential to inform [the accused person] that he is
facing the possibility of a substantial prison sentence or
a sentence
which may be ‘materially prejudicial’ if he can
reasonably be expected already to be aware of this.’
A
crucial question, if the charge sheet omits a reference to the Act,
is whether the accused nevertheless had a fair trial if the
sentence
is determined in terms thereof. This was made clear in S v Ndlovu
(para 12).
”
‘
[w]here
the State intends relying upon the sentencing regime created by the
Act a fair trial will generally demand that its intention
pertinently
be brought to the attention of the accused at the outset of the
trial, if not in the charge sheet then in some other
form, so that
the accused is placed in a position to appreciate properly in good
time the charge that he faces as well as its possible
consequences’.”
190.
In the
event that the court applies the prescribed minimum sentence, the
argument advanced on behalf of accused 6 is that the court
may
suspend part of the minimum sentence despite the authority in
S
v Seedat
[11]
where it was held as follows:
[36] If
it was the intention of the high court to invoke the provisions of s
297(4), it could do so, as it had already accepted
that there were
substantial and compelling circumstances that justified a deviation
from the prescribed minimum sentence. However,
in order for that
sentence to be competent, the court would have to impose a sentence
for a specific term of imprisonment. The
court could then order that
the operation of a part of that term of imprisonment be suspended for
a specific period not exceeding
five years on any condition,
including compensation. This is not what the court did. It instead
stated that ‘the sentencing
of the appellant is suspended
for a period of five years on the following conditions. . .’
In so doing, it did not impose
a specific sentence or a specific term
of imprisonment. Such a sentence is not competent in terms of s 297
and there is no provision
in law permitting a court to so suspend the
sentencing of an accused. The unintended consequence occasioned by
the error
committed by the high court was that there was no competent
sentence imposed on the appellant.
[37] There
is another reason why the sentence imposed by the high court cannot
stand. Section 297(4) envisages that only a
part of the sentence
should be suspended and not the whole sentence. So, even if the
court sought to impose a suspended sentence,
it could not suspend the
whole sentence. For all those reasons the high court thus committed
an error on a question of law and
the sentence it imposed stands to
be set aside. It thus remains for this court to consider an
appropriate sentence
.”
191.
It was
submitted on behalf of accused 6 that Seedat’s case is in
conflict with the Hildebrand
[12]
and Malgas
[13]
cases.
192.
In
Hildebrand the court held as follows concerning a sentencing court’s
exercise of its discretion when deviating from the
prescribed minimum
sentence:
“
[
8]
Section 51 of the Act provides for the minimum sentences for certain
specified offences. Once a court finds that the offence
for which an
accused has been convicted falls under offences specified by s 51 of
the Act, then that court has no option but to
impose the minimum
sentence prescribed unless it can find substantial and compelling
circumstances. However, once it is satisfied
that there are
substantial and compelling circumstances which justify the imposition
of a sentence other than the one prescribed
by the Act, it can impose
any sentence which it regards as appropriate (s 51(3) of the Act).
This is so because as this Court held
in S v Malgas
[2001]
ZASCA 30
;
2001
(2) SA 1222
(SCA)
para 25A
:
Section
51 has limited but not eliminated the courts’ discretion in
imposing sentence in respect of offences referred to in
Part 1 of
Schedule 2 (or imprisonment for other specified periods for offences
listed in other parts of Schedule 2).
’
[9]
Section 51(5) of the Act reads:
‘
The
operation of a minimum sentence imposed in terms of this section
shall not be suspended as contemplated in section 297(4) of
the
Criminal Procedure Act, 1977 (Act 51 of 1977).’
[10]
It should be clear that s 51(5) refers to ‘a minimum sentence
imposed in terms of this section’. Self-evidently,
this section
does not apply to sentences imposed after a finding that substantial
and compelling circumstances exist, because such
a sentence is not
one imposed in terms of s 51. The sentence imposed by the regional
magistrate accordingly did not fall within
the restrictive provisions
of s 51(5).”
193.
I am not convinced that Seedat is in conflict with Hildebrand and
Malgas. The former concerned a sentence which the magistrate
sought
to impose where no term of imprisonment was given and where the
magistrate erroneously believed that he could not suspend
part of the
sentence which was in any event a deviation from the prescribed
minimum sentence.
194.
In  Hildebrand and Malgas’ cases, the court confirmed that
a sentencing court’s discretion is not eliminated
by the
prescribed minimum sentence once it is deviated from.
195.
I accept counsel for accused 6 and the state’s submission that
should this court find that the prescribed minimum
sentence applies
and if the court finds substantial and compelling circumstances do
exist to justify a deviation from that sentence,
I would retain the
discretion to impose any competent sentence that I consider to be
appropriate.
196.
In the case of accused 4, since the state mistakenly misrepresented
the position concerning the applicability of the
prescribed minimum
sentence prior to him changing his plea, it would be substantively
and substantially unfair to apply the prescribed
minimum sentence and
so I decline to do so.
197.
The prescribed minimum sentence does not apply to accused 5 because
the amount of gratifications that he received is
less than R10 000.
198.
Accused 6 fulfils the jurisdictional requirements for the prescribed
minimum sentence because he was a law enforcement
officer and he
received gratifications in excess of R10 000.
199.
I am however persuaded that the ordinary mitigating factors
applicable to accused 6 weighed against the role he played
and the
nature of the offence constitute substantial and compelling
circumstances to justify a deviation from the prescribed minimum

sentence.
Mitigating
factors that could constitute substantial and compelling
circumstances
200.
In
S v Malgas
the court held as follows:
“
[25]
What stands out quite clearly is that the courts are a good deal
freer to depart from the prescribed sentences than has been
supposed
in some of the previously decided cases and that it is they who are
to judge whether or not the circumstances of any particular
case are
such as to justify a departure. However, in doing so, they are to
respect, and not merely pay lip service to, the legislature’s

view that the prescribed periods of imprisonment are to be taken to
be ordinarily appropriate when crimes of the specified kind
are
committed. In summary –”
201.
All the accused are first offenders, they have children that are
either financially and/or emotionally dependant on them,
they have
all pleaded guilty, albeit after the trial had ensued for
approximately 10 months on the basis of not guilty pleas and
they
showed varying degrees of remorse.
202.
Defence counsel were at pains to describe the negative impact of the
prosecution and trial upon the accused. Those consequences
do not
form part of the punishment meted about by the courts. The intention
of the criminal justice system is not to punish an
accused with the
procedure followed in a trial before he/she is sentenced by a court,
hence the accused’s rights to a fair
trial are Constitutionally
protected.
203.
The negative media attention, financial hardship occasioned by being
prosecuted, the stress and anxiety endured by accused
persons and
their families are all part of consequences which flow to most
accused persons. Those are not mitigating factors
per
se
that
courts are enjoined to take account of when deciding on an
appropriate sentence.
204.
Counsel for the defence implored me to have regard to the case of
S
v M
where the Constitutional Court discussed that regard should
be had to the best interests of the minor children of the accused who

was their primary caregiver. The court held that although the best
interests of the child are paramount, this did not mean that
they are
absolute, and they could be limited by balancing them against other
rights in the Bill of Rights.
205.
In this case none of the accused are primary caregivers although they
do provide financial assistance to their adult
children and in the
case of accused 1, to a 17 year old relative.
206.
Accused 1’s counsel argued that accused 1 suffered the loss of
ownership of his business which he had to give over
to his son and he
is now an employee in that business. The evidence is however that he
is an employee and a consultant in the business.
According to the
correctional supervision suitability report,  accused 1 decided
to change the ownership of the business to
his son because his son
would be able to obtain credit . Although accused 1 appears to have
lost nominal ownership of the business,
he is still involved in the
business. The business is able to provide for accused 1 and his
family’s living requirements.
Accused 1 receives sufficient
remuneration to cover his expenses and his daily needs in an amount
of approximately R100 000
per month.  He has been described
by the probation officer as not being destitute. Accused 1 is
resilient enough to have transferred
his business interests to his
son, while retaining beneficial use of the business.
207.
There are indeed mitigating factors present in the personal
circumstances of each of the accused but they have to be
weighed
against the aggravating factors.
208.
The state also seeks the imposition of a sentence under section 276
(1)(h).  The court is however not bound by any
agreement that
the state may have made with the accused.
209.
The nature and circumstances in which the offences occurred however,
do  present aggravating factors because they
were perpetrated by
and in conjunction with law enforcement officers who are sufficiently
knowledgeable about the unlawfulness
of corruption and its
consequences for the SAPS and the community it serves, when
perpetrated by its members.
210.
Not only did accused 4, 5 and 6 receive gratifications, but they also
perpetrated acts or omissions of intervention for
which they were
convicted so that they could unfairly advantage their benefactor,
accused 1 at the expense of the public they were
meant to serve.
211.
Accused 2, Towbars Cape CC was convicted on Counts 3 to 5. The value
of the gratifications paid from the funds of accused
2 are in excess
of R60 000. The imposition of a fine commensurate with that sum
would be an appropriate sentence for accused
2.
212.
In weighing the aggravating features of the commission of the
offences as outlined herein, against the mitigating factors,
I find
that correctional supervision would not send out a sufficiently
strong signal of deterrence and sanction nor would it facilitate
the
accused’s recognition and acceptance of responsibility for the
severity of their offences which have dire consequences.
Taking
account of the individual role that each accused played in the
commission of his relevant offence or offences as well as
the role
they each played in facilitating the offences committed by their
co-accused,  the impact that those offences had
on other
officers, the SAPS and society as a whole,  the individual
accused’s personal circumstances and the positions
they
occupied at the time, I am of the view that the most appropriate
sentence for each offence and for each accused is a term
of
imprisonment.
213.
As stated previously, courts are enjoined to temper the sentence
imposed with a measure of mercy. That mercy is demonstrated
by the
fact that this court will suspend a portion of the term of
imprisonment imposed and order part of the sentences imposed
to run
concurrently.
IT
IS ORDERED THAT
:
The
accused are sentenced as follows:
In
respect of Accused 1: Mahomed Salim Dawjee
Count
3
:
Corruption
8
(eight) years direct imprisonment, 2 (two) years of which are
suspended for a period of 5 (five) years on condition that the
accused is not convicted of corruption committed during the period of
suspension;
Count
4
:
Corruption
4
(four) years direct imprisonment;
Count
5
:
Corruption
6
(six) years direct imprisonment;
Count
12
:
Corruption
4
(four) years direct imprisonment;
Count
13
:
Corruption
4
(four) years direct imprisonment;
Count
14
:
Corruption
4
(four) years direct imprisonment;
Count
15
:
Corruption
4
(four) years direct imprisonment;
Count
16
:
Fraud
5
(five) years direct imprisonment;
Count
25
:
Defeating or obstructing the
course of justice
3
(three) years direct imprisonment;
Count
26
:
Fraud
2
(two) years direct imprisonment;
Count
27
:
Defeating or obstructing the course of justice
3
(three) years direct imprisonment;
The
sentence imposed on counts 4, 5, 12, 13, 14, 15, 16, 25, 26 and 27
will run concurrently with the sentence imposed on count
3.
In
respect of Accused 2:  TOWBARS CAPE CC
Counts
3 to 5
:
A
fine of R60 000 is imposed, of which R40 000 is suspended
for a period of 5 (five) years provided that it is not convicted
of
corruption or defeating the ends of justice committed during the
period of suspension.
In respect of
accused 4: Arno Heinrich Lamoer
Count
7
:
Corruption
8
(eight) years direct imprisonment, 2 (two) years of which are
suspended for a period of 5 (five) years on condition that the
accused is not convicted of corruption committed during the period of
suspension;
In respect of
accused 5: Darius Joe Van der Ross
Count
8
:
Corruption
4
(four) years direct imprisonment, 2 (two) years of which are
suspended for a period of 5 (five) years on condition that the
accused
is not convicted of corruption committed during the period of
suspension.
In
respect of Accused 6: Kolindhren Govender
Count
9
:
Corruption
6
(six) years direct imprisonment, 2 (two) years of which are suspended
for a period of 5 (five) years on condition that the accused
is not
convicted of corruption committed during the period of suspension;
__________
R.
ALLIE
[1]
1969
(2) SA 537
(A)
at 540 G
[2]
R v
Swanepoel
1945
AD 444
at
455; S v Rabie
1975
(4) SA 855
(A)
at 862 A-B
[3]
At 861 B
[4]
1919 TPD 348
at 353; R v Patel
1944 AD 511
at 522
[5]
Snyman
Criminal Law
6
th
Ed p 405
[6]
1974 (4) SA 61
(C) at 63 E-F
[7]
1990 (3) SA 715
(T) at 722 C-D
[8]
[2006] ZASCA 105
;
2007
(1) SACR 247
(SCA)
at para 223
[9]
[2010] ZAGPJHC 58
at paras 19 to 20
[10]
[2016] ZASCA 124
at
[14]
[11]
2017(1) SACR 141 (SCA) at [36] & [37]
[12]
Hildebrand v The State
[2015] ZASCA 174
[13]
S v Malgas 2001(1) SACR (SCA)