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2012
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[2012] ZAGPJHC 254
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S v Khoza (A33/12) [2012] ZAGPJHC 254 (19 November 2012)
IN THE
HIGH COURT OF
SOUTH AFRICA (
SOUTH GAUTENG
)
J
ohannesburg
Case NO: A33/12
DATE: 2012-11-19
In the application for leave to appeal between
THE STATE
and
KHOZA,
OSCAR
..........................................................................
Accused
CORAM: WILLIS J and KOLBE AJ
J U D G M E N T
WILLIS
, J
:
[1] The appellant was arraigned in the Regional
Court held at Protea, Soweto on a charge of extortion, it being
alleged that on
14 August 2009, at or near Soweto, he committed the
offence of extortion, alternatively contravened section 3(a) read
with sections
1, 2, 24, 25, and 26 of Act 12 of 2004.
[2]
At the conclusion of
this trial, the appellant and his co-accused were found guilty on the
main count. The appellant was sentenced
to five years' imprisonment.
This occurred on 27 September 2010.
[3] The appellant pleaded not guilty, and enjoyed
the benefit of legal representation. His co-accused has since died.
The evidence
of the State was that the appellant, who is a police
officer, went to extract the sum of R12 000 from the two
complainants, namely
Johannes Tsegotso and Mildred Makosi. It is true
that they contradict each other in minor respects regarding the
detail of what
happened, but they totally support each other as to
the fact that the two accused arrived at their house in a police
vehicle and
demanded the payment of a bribe.
[4] Not only did they give clear and cogent
evidence, and not only is it common cause that the appellant and his
co-accused went
to their house in a police vehicle, but in my
opinion, it is utterly damning that the evidence clearly shows that
there was no
corroboration whatsoever that this case was under
investigation.
[5] There is no record in the diaries, the
pocketbooks of the appellant or his co-accused. There is no record
in the "voorvalleboek"
book. There is no record in the
register relating to warrants of arrest being issued. The senior
officer on duty at the time
has no record whatsoever of any complaint
having been lodged about these two persons, neither did he dispatch
the appellant and
his co-accused to investigate the matter.
[6]
If one views the
evidence in its totality, it is, frankly, damning and, in my
respectful opinion, the appellant was correctly convicted.
Insofar
as sentence is concerned, again in my respectful opinion, the
appellant can consider himself fortunate only to have been
sentenced
to five years.
[7] It is frankly horrific when police officers
abuse their police powers to extort money from innocent persons in
their home.
A loud, clear, firm message has to be sent out that we
are on the road to a disgusting, fascist police state if this kind of
behaviour
gets out of hand. I emphasise, once again, that in my
opinion, the appellant can consider himself fortunate that he was
sentenced
only to five years' imprisonment.
[8] It is true that he was a first offender. It
is true that his personal circumstances deserve some sympathy. All
of that was
considered by the learned magistrate, and I can see no
misdirection by the learned magistrate, and no basis to interfere
with sentence.
[9] The appellant has been on bail of R5 000.
Certainly, there has been no enthusiasm on his part to have this
appeal heard. Indeed,
it has been postponed and protracted.
Accordingly, I propose that the following order be made:
1. The appeal against conviction and sentence is dismissed.
2. The appellant is given seven days to report to the clerk of the
court, Soweto, in order to start serving his sentence.
KOLBE, AJ
: I agree.
It is so ordered.
________________________
WILLIS J
JUDGE OF THE HIGH COURT
________________________
KOLBE AJ
JUDGE OF THE HIGH COURT