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[2013] ZAGPJHC 279
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Sithole v S (A176/2013) [2013] ZAGPJHC 279 (22 October 2013)
NOT
REPORTABLE
IN
THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
(REPUBLIC
OF SOUTH AFRICA)
CASE NO: A176/2013
DATE: 22/10/2013
In
the matter:
SITHOLE,
ZANDILE PRUDENCE
…...........................................................
APPELLANT
Versus
THE
STATE
..................................................................................................
RESPONDENT
JUDGMENT
THOBANE
AJ
:
[1]
The appellant was charged with two counts. Firstly, Corruption -
Receiving a benefit in terms of the Corruption Act 94 of 1992
read
with the provisions of Sections (1)(1)(b), 2 and 3 of that Act.
Secondly, Fraud read with the provisions of
Section 51(2)
(a) of the
Criminal Law Amendment Act 105 of 1997
.
[2]
She appeared in the Germiston Regional Court, during which
proceedings she enjoyed legal representation, pleaded not guilty
but
was convicted of the first count and acquitted of the second count of
Fraud.
[3]
She was sentenced to five (5) years correctional supervision in terms
of the provisions of section 276(1) (i) of the Criminal
Procedures
Act 51 of 1977.
[4]
She appeals against conviction and sentence with leave of the Court
below.
[5]
The legal representatives for both the appellant and the respondent
addressed court and were in agreement that although the
appellant was
incorrectly charged, in that the old Corruption Act 92 of 1992, had
been used in the stead of the Combating of Corrupt
Activities Act 12
of 2004 which came into operation on the 27th April 2004 and which
had repealed the 1992 Act in its entirety,
there was no reason why
the Appeal Court given its inherent powers, could not amend the
charge. Mr Khunou, on behalf of the Appellant
agreed that there was
no prejudice on the side of the appellant.
[6]
At this stage a brief background about the offence that the appellant
was convicted of is relevant. On the 13th April 2006,
Mr Gerhardus
Jakobus Bronkhorst (the complainant) was driving on the highway,
while talking on his cellphone at the same time.
He was approached by
a Metro Police motor vehicle and directed to get off the road. He
duly did so by stopping on the emergency
lane. According to him, he
got off the motor vehicle and approached the metro Police woman (the
appellant), who had alighted from
the metro Police vehicle. He was
told that he had been speaking on the cellphone while driving, which
he initially denied but later
admitted and apologized. He was shown
the fine book indicating that earlier on, a fine of R500-00 had been
issued to another driver
who had been speaking on the phone. He was
then told to make a contribution to the Council. He offered R50-00
but was told that,
viewed against a fine of R500-00, it was
insufficient and that at least R100-00 would be enough. He went back
to his car and was
joined by the appellant, whom he gave the said
R100-00. He had a Beeld newspaper with him, on which he wrote the
registration numbers
and the telephone number written on the vehicle.
He was cross examined extensively.
The
appellant testified that they were on patrol with his colleague, who
while driving saw a traffic infringement in that there
was a driver
who was on the phone. He switched on his blue lights and siren and
signaled to that vehicle to stop. She, appellant,
alighted from the
car and approached the vehicle. According to her, the complainant did
not alight from his vehicle. She indicated
to him that he had been
using his phone however the complainant denied that. The appellant
then inspected his license and warned
the complainant verbally.
Complainant wanted to pass compliments and wanted the names of the
traffic officers but was advised that
he should rather write down the
registration number and the telephone number that appeared on the
car.
[7]
It was submitted on behalf of the appellant that the Court a quo,
should have acquitted the appellant in view of the fact that
the
evidence was that of a single witness, that there was reasonable
doubt in the mind of the court and that the complainant's
evidence
was not reliable.
[8]
The respondent was naturally of the view that there was sufficient
evidence and that the Court a quo arrived at the correct
finding.
[9]
When one looks at the judgment of the magistrate, he does go into
detail to deal with the issue of caution, in view of the fact
that
the evidence confronting him was that of a single witness. In my
view, he did not merely pay lip service to it. He inter alia
took the
following into consideration:
[9.1].
The newspaper that was entered into evidence as Exhibit "A",
[9.2].
The fact that there was no animosity between the complainant and the
appellant,
[9.3].
The promptness with which the complainant reported the matter,
[9.4].
The fact that the complainant was not presented with the appellant's
version on certain crucial aspects for him to comment
on, during
cross examination.
[9.5].
Calling of a witness by the appellant, that did not corroborate the
appellant’s version in material respects,
[10]
Specifically with regard to the evidence of the complainant and the
requirement that the evidence of a single witness ought
to be
satisfactory in all material respects for it to meet the bar set in
the numerous decisions dealing with this aspect, I agree
with the
magistrate that the evidence was satisfactory in every material
respect. Also that the appellant did not contradict himself
and was
truthful in his testimony. [see State v Ganie
1967 (4) SA 203
(N), S
v Hlanga
1991 (1) SACR 583
(A), S v Mahlangu
2011 (2) SACR 164
(SCA)].
[11]
A further inquiry in the alternative is whether the evidence of the
complainant is corroborated. Corroboration should be on
those aspects
that are relevant for determination of the guilt or innocence of the
accused. The finding by the court aquo, that
the evidence of the
complainant was corroborated, was in my view the correct one.
[11.1]
Taking the following into consideration:
[11.1.1]
The circumstance surrounding the recordal on the newspaper of the
registration and telephone number of the Metro Police
vehicle and
that the newspaper was admitted into evidence.
[11.1.2]
the immediate reporting of the incident to the authorities
[11.2]
Considering the contradictions between the appellant and her witness
on the following aspects.
[11.2.1]
That the appellant saw the traffic infringement.
[11.2.2]
That it was the appellant’s idea that the registration and
telephone numbers be written down.
[11.2.3]
That the appellant withheld her name from the complainant because. it
was difficult to write down.
[12]
The rejection of the appellant’s version as being unreasonable
and improbable was in the circumstances appropriate.
[13]
Therefore, the appeal against the conviction must fail.
[14]
With regard to the sentence the magistrate had the benefit of being
presented with a Correctional Supervision Report prepared
by Mr T.J.
Pali and dated the 10th October 2007. The report captured, inter
alia, the following personal circumstances of the appellant:
She was 33 years of age,
She is unmarried,
She had a fiancé,
one Mr Lindile Nicholus Nkosi, who had confirmed the details of the
appellant,
She had attended
schooling, and had passed grade 12,
She had attended a
Damelin computer course and as well as a Traffic Diploma offered by
the Johannesburg Metro Police,
She had been employed by
the Ekurhuleni Metropolitan Council as a traffic officer for a
period of five years
She owned a house at
Dawn Park where she was staying with her fiancé, her mother,
her daughter and her brother’s
son,
That she had strong
family ties with her family and was close to her siblings
That she had to pay for
the house, car and other necessary expenses,
That she had other
persons dependent on her.
[15]
The recommendations in terms of the report were that the appellant
was a good candidate for correctional supervision in terms
of Section
276(1) (i) of the Criminal Procedures Act 51 of 1977. The recommended
conditions were also attached to the report.
[16]
The magistrate, in my view, did try to strike a balancing act by
considering the triad as set out in many cases dealing with
sentence.
[R v Zinn 1969(2) SACR 250(W)]
[17]
It is trite that the Appeal Court will only interfere with the
sentence if a trial Court misdirected itself, or did not exercise
its
discretion judicially and properly, or if the sentence is shockingly
inappropriate and finally if the interest of justice call
for
intervention. [S v Obisi 2005(1) SACR 250(W)]
[18]
From the judgment it is evident that the personal circumstances of
the appellant were examined against the backdrop of the
crime itself
and the interest of society.
[19]
In the case of S v Pillay 1977(4) SA 531(A) at p535 E-G the court
held that:
“
As
the essential inquiry in an appeal against sentence, however, is not
whether the sentence was right or wrong; but whether the
court in
imposing it exercised its discretion properly and judicially, a mere
misdirection is not by itself sufficient to entitle.
the Appeal Court
to interfere with the sentence; it must be of such a nature, degree,
or seriousness that it shows, direct or inferentially,
that the court
did not exercise its discretion at all or exercised it improperly or
unreasonably.”
[20]
I cannot find that the trial Court conducted itself in a manner that
warrants interference, nor can I find that the sentence
imposed is
shockingly inappropriate.
[21]
The appeal against sentence must therefore fail.
[22]
In the result I make the following order:
1.
The Charge Sheet is amended by removing the contravention in terms of
the repealed Act to reflect the following "contravention
of
Section 3(a)(ii)(cc) read with sections 1,2 and 26 of Act 12 of
2004".
2.
The appeal on behalf of the appellant against conviction and sentence
is dismissed.
3.
The sentence imposed by the trial Court is confirmed.
SA
THOBANE
Acting
Judge of the High Court
I
AGREE.
B
MASHILE
JUDGE
OF THE HIGH COURT
Date
of Hearing: 14/10/2013
Date
of Judgment: 22/10/2013
Counsel
For Appellant: Adv. MA Khunou
Counsel
For Respondent: Adv. CL Smit
Instructed
by: National Prosecuting Authority