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[2016] ZASCA 187
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Phillips v S (370/2016) [2016] ZASCA 187; 2017 (1) SACR 373 (SCA) (1 December 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 370/2016
In
the matter between:
LEBOGANG
PHILLIPS
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
Citation:
Phillips
v The State
(370/2016)
[2016] ZASCA 187
(1 December 2016)
Coram:
Leach, Tshiqi, Zondi JJA and Schoeman
and Schippers AJJA
Heard:
11 November 2016
Delivered:
1 December 2016
Summary:
The
Prevention and
Combating of Corrupt Activities Act 12 of 2004
does not limit the
penal discretion of the sentencing court: sentence of a fine not
appropriate for a public officer convicted
of contravening
s
4(1)
(a)
(i)
(aa)
of the Act: failure by the trial court to have regard to all relevant
considerations constitutes a misdirection warranting interference
with the sentence imposed.
ORDER
On
appeal from Gauteng Division of the High Court, Pretoria (Kubushi J
and Masango AJ, sitting as a court of appeal).
1
The appeal against sentence succeeds. The sentence imposed by the
trial
court is set aside and substituted with the following:
‘
The
accused is sentenced to four years’ imprisonment, ante-dated to
20 June 2012.’
JUDGMENT
Zondi
JA (Leach, Tshiqi JJA and Schoeman and Schippers AJJA concurring):
[1]
The appellant, a constable in the South African Police Service, was
convicted in the regional court, Pretoria of soliciting
and accepting
a bribe of R900 in contravention of
s 4(1)
(a)
(i)
(aa)
read with ss 1, 2, 4(2), 24, 25 and 26(1)
(a)
of the Prevention and Combating of Corrupt Activities Act, 12 of 2004
(the Act). He was sentenced to seven years’ imprisonment,
two
years of which were conditionally suspended for five years. The
appellant unsuccessfully appealed against this sentence to
the
Gauteng Division (Kubushi J and Masango AJ). This appeal against
sentence only is with special leave of this Court.
[2]
On 16 July 2010 at about 01h00 near Hatfield Square, Pretoria the
appellant arrested one John Carlisle (the complainant), a
student at
the University of Pretoria for allegedly drinking in public. The
complainant was placed in the back of a police van
and driven about
200 metres to the Brooklyn Police Station. There he was left locked
in the back of the police van for a while
before the appellant came
to him and demanded payment of R2000 in cash which the appellant said
was a fine the complainant had
to pay in order to avoid going to
jail.
[3]
The complainant informed the appellant that he did not have such an
amount on him and said that he could raise only R1200. The
appellant
then took the complainant to the nearest ATM to withdraw cash, but
the complainant was only able to withdraw R900 in
cash. The appellant
accepted the R900 from the complainant and released him. Thereafter
the appellant conveyed the complainant
to his girlfriend’s
residence. Later that day the complainant, feeling aggrieved by the
appellant’s conduct, opened
a case of bribery against the
appellant at the Brooklyn Police Station. The appellant was arrested
and subsequently charged with
corruption.
[4]
The trial court accepted the version of the complainant that he
indeed did not consume alcohol in public and that the charge
against
him was unfounded, and convicted the appellant. It appeared that the
appellant was a first offender in relation to the
offence of
corruption, was 35 years old at the time and had had nine years’
flawless service in the South African Police
Service. He is married
and has three children. As a result of the conviction he lost his
employment. It appeared further that the
appellant admitted to the
correctional supervision officer during the interview to have
committed the offence. The trial court
found that the appellant’s
personal circumstances in the light of the gravity of the offence did
not constitute mitigating
factors. The court below endorsed the
findings of the trial court and dismissed the appeal against
sentence.
[5]
It is trite that a court exercising appellate jurisdiction cannot, in
the absence of material misdirection by the trial court,
assess the
appropriateness of the sentence as if it were the trial court and
then alter the sentence arrived at by that court,
simply because it
disagrees with it. To do so, would be to usurp the sentencing
discretion of the trial court. But where material
misdirection has
been demonstrated, an appellate court is not only entitled, but is
duty-bound to consider the question of sentence
afresh to avoid an
injustice.
[6]
At the hearing of the appeal it was submitted by the appellant that s
26(1)
(a)
(ii)
of the Act, unlike s 3 of the repealed Corruption Act 94 of 1992
(Corruption Act), limits the trial court’s sentencing
discretion by prescribing as a first option a fine and a second one,
imprisonment. The effect of that limitation, argued the appellant,
is
that the sentencing court should consider first imposing a fine
rather than direct imprisonment. He argued that under the old
Corruption Act, the sentencing court enjoyed a wide penal discretion
and for that reason it is unhelpful to rely on cases such
S
v Mahlangu & another
[2011]
ZASCA 64
;
2011 (2) SACR 164
(SCA) which were considered under the
Corruption Act.
[7]
Section 4(1)
(a)
(i)
(aa)
which deals with offences in
respect of corrupt activities relating to public officers is
contained in Chapter 2, Part 2 of the
Act. It reads:
‘
(1)
Any─
(a)
public
officer, who directly or indirectly, accepts or agrees or offers to
accept any gratification from any other person, whether
for the
benefit of himself or herself or for the benefit of another person;
or
(b)
.
. .
in
order to act, personally or by influencing another person so to act,
in a manner─
(i)
that amounts to the─
(aa)
illegal,
dishonest, unauthorised, incomplete, or biased; or
(bb)
.
. .
exercise,
carrying out or performance of any powers, duties or functions
arising out of a constitutional, statutory, contractual
or any other
legal obligation;
.
. .
is
guilty of the offence of corrupt activities relating to public
officers.’
[8]
Section 26 deals with penalties. Subsection (1) provides as follows:
‘
(1)
Any person who is convicted of an offence referred to in─
(a)
Part 1, 2, 3
or 4, or section 18 of Chapter 2, is liable─
(i)
. . .
(ii)
in the case of a sentence to be imposed by a regional court,
to a
fine or to imprisonment
for a period not exceeding 18 years; or’
(My emphasis)
(iii)
. . .
[9]
The question is whether s 26(1)
(a)
(ii)
has the effect contended for by the appellant. That question turns on
a proper interpretation of the relevant section of the
Act. The
interpretative exercise must be conducted in accordance with the
established approach set out in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[1]
para
18, This exercise involves ascertaining the proper meaning and effect
of the statutory language used, viewed in context and
with reference
to the apparent purpose to which it is directed, and having regard to
the material known to the lawmaker.
[10]
The Act repealed the Corruption Act and, with exception of s 34(2),
came into operation on 27 April 2004. The purpose of the
Act, among
others, is ‘[T]o provide for the strengthening of measures to
prevent and combat corruption and corrupt activities;
to provide for
the offence of corruption and offences relating to corrupt
activities; . . .’. There is no doubt that corruption
and
corrupt activities undermine constitutional rights and further
‘endanger the stability and security of societies, undermine
the institutions and values of democracy and ethical values and
morality, jeopardise sustainable development, the rule of law and
credibility of governments. . .’.
[2]
Milton
S
outh
African Criminal Law and Procedure
Vol
III Statutory Offences
[3]
states
that the preamble to the Act specifically provides that part of the
rationale for replacing the 1992 formulation of the offence
of
corruption with the 2004 version, is that it was deemed ‘desirable
to unbundle the crime of corruption, in terms of which,
in addition
to the creation of a general, broad and all-encompassing offence of
corruption, various specific corrupt activities
are criminalized.’
[11]
In my view, having regard to the legislative history, context and the
purpose of the Act, by enacting the Act the legislature
did not
intend to restrict the sentencing discretion of the trial court. On
the contrary, the provision of the section makes it
clear that the
legislature intended that public officers who are convicted of
corruption may be dealt with harshly. That objective
could be
frustrated if one were to read s 26(1) in a manner contended for by
the appellant. It is clear that the provision of s
26 leaves the
sentence in the hands of the sentencing court to impose either a fine
or a period of imprisonment.
[12]
It was further submitted by the appellant that the trial court
misdirected itself by failing to consider other sentencing options,
such as periodical imprisonment in terms of s 285 of the Criminal
Procedure Act 51 of 1977 (the CPA) or a correctional supervision
sentence in terms of s 276(i)(h). However, the trial court carefully
considered other sentencing options and concluded that because
of the
seriousness of the crime and interests of society, direct
imprisonment was an appropriate sentence. Based on the consideration
of all the relevant facts, this conclusion cannot be faulted.
[13]
In the case of
S v Narker & another
1975 (1) SA 583
(A)
Holmes JA (Muller JA and Corbett JA concurring) observed at 586B:
‘
1. Bribery
is a corrupt and ugly offence striking cancerously at the roots of
justice and integrity, and it is calculated to
deprive society of a
fair administration. In general, courts view it with abhorrence; . .
. see
R
.
v
Chorle
,
1945 A. D. 487
at pp. 496 - 7; and
Limbada
v Dwarika
,
1957
(3) SA 60
(N)
.’
[14]
This Court in
S v Mahlangu
para 26 held:
‘
Corruption
has plagued the moral fibre of our society to an extent that, to
some, it is a way of life. There is a very loud outcry
from all
corners of society against corruption which nowadays seems
fashionable. Some even go as far as stating that corruption
is
rendering the State dysfunctional. It is the courts that must
implement the penalties imposed by the legislature. It is also
the
courts that must ensure that justice is not only done, but also seen
to be done. The trial court considered all the aggravating
and
mitigating factors and came to the conclusion that an effective
imprisonment of four years was appropriate. In the circumstances
of
this case, I agree.’
I
fully agree with these sentiments.
[15]
In the present case the appellant’s conduct was egregious. He
manufactured a case against the complainant for the purposes
of
soliciting a bribe. The appellant used threats to inspire fear in the
complainant’s mind in order to induce the complainant
to pay
him R900. He abused his position as a public officer and, as if this
was not enough, he pleaded not guilty and advanced
a defence which he
knew was hopeless. He showed no remorse. The appellant violated the
complainant’s constitutional right
[4]
to
freedom and security under s 12(1) and the right to have his inherent
dignity respected and protected under s 10. In the circumstances,
having regard to the serious nature of the offence, direct
imprisonment was called for. There is also no merit in the
appellant’s
submission that if the State had intended to argue
for a heavy sentence it should have charged him with extortion which
is more
serious than corruption.
[16]
It was further submitted by the appellant that an effective term of
seven years’ imprisonment is disproportionate to
the crime, the
personal circumstances of the appellant and the interests of society.
In contending for a lesser sentence, counsel
referred us to cases of
S v Newyear
1995
(1) SACR 626
(A);
S
v Mtsi
1995 (2)
SACR 206
(W);
S v
Mogotsi
1999 (1)
SACR 604
(W). It is unnecessary to analyse these decisions, the facts
of which are materially different to the present. Each case must be
decided on its own relevant facts and circumstances. What these
decisions do show, however, is that law enforcement officers who
abuse their positions for corrupt benefits can expect little sympathy
from the courts. After all, s 205(3) of the Constitution
records that
the objective of the police service is ‘to prevent, combat and
investigate crime, to maintain public order,
to protect and secure
the inhabitants of the Republic and their property, and to uphold and
enforce the law’. In order to
ensure that these objectives are
reached, it is necessary to deal firmly with police officials who are
in breach of their obligations
under this section, and to warn their
colleagues that actions of the sort the appellant committed will not
be tolerated.
[17]
The issue therefore is whether it can be said that the trial court
exercised its judicial discretion improperly or whether
the sentence
it imposed, is disturbingly inappropriate. In my view, the trial
court placed undue emphasis on deterrence. It held
that ‘in
this type of an offence that deterrence must also be strongly
considered and will come to the fore . . . because
of the fact that .
. . everyone must be made aware of the consequences of an offence . .
.’.
[18]
While that is no doubt true, for the reasons I have just mentioned,
deterrence is indeed one of the objects and purpose of
criminal
punishment, the three other aspects of sentencing, namely prevention,
rehabilitation and retribution are also important.
Offenders should
not be sacrificed on the altar of deterrence.
[19]
As I have mentioned in para [4] of this judgment the appellant was 35
years old at the time of the commission of the offence
concerned, and
married with three children. The appellant has a National Diploma in
Education (Commerce) which he obtained before
he joined the South
African Police Service. When these facts are looked at cumulatively,
they serve to demonstrate that the appellant
does have prospects of
rehabilitation and correction, and becoming a useful member of
society and a sentence to be imposed, must
also be informed by these
considerations.
[20]
It is therefore clear that in the determination of what an
appropriate sentence would be, the trial court misdirected itself
by
over-emphasizing the factor of deterrence and thereby failed to give
adequate weight to all other relevant considerations. This
is a
factor which justifies this Court to interfere with the sentence.
Furthermore the sentence of seven years’ imprisonment,
albeit
two years of which was suspended, is unduly severe. In my view,
I consider a sentence of four years’ imprisonment
to be
appropriate, and would be an adequate deterrence to other police
officers who may be tempted to supplement their income by
corrupt
activities. There is sufficient disparity between that sentence and
the sentence imposed to oblige this Court to interfere.
[5]
[21]
Although the appellant is currently free on bail, the altered
sentence should be ante-dated under
s 282
of the
Criminal Procedure
Act 51 of 1977
to 20 June 2012, the date he was sentenced in the
trial court, for him to enjoy the benefit of imprisonment already
served.
[22]
In the result, the following order will issue:
1
The appeal against sentence succeeds. The sentence imposed by the
trial
court is set aside and substituted with the following:
‘
The
accused is sentenced to four years’ imprisonment, ante-dated to
20 June 2012.’
________________
D
H ZONDI
JUDGE
OF APPEAL
APPEARANCES:
For
appellant:
A B Booysen
Instructed
by:
Du
Toit Attorneys, Capital Park
SMO
Seobe Attorneys Inc, Bloemfontein
For respondent:
G C Nel
Instructed by:
Director
of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
[1]
Natal Joint Municipal
Pension Fund v Endumeni Municipality
[2012]
ZASCA 13; 2012 (4) SA 593 (SCA).
[2]
Long title of the Act.
[3]
At D3 3-4.
[4]
F v Minister of Safety and
Security & others
[2011]
ZACC 37; 2012 (1) SA 536 (CC).
[5]
S v Berliner
1967
(2) SA 193
(A) at 200E-H.