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[2010] ZAGPPHC 215
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Mogale v S (A1526/2004) [2010] ZAGPPHC 215 (3 December 2010)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: A1526/2004
DATE:
03/12/2010
IN
THE MATTER BETWEEN:
S
A
MOGALE
...............................................................................................
APPELLANT
vs
THE
STATE
.................................................................................................
RESPONDENT
JUDGMENT
TOLMAY
J
:
The
accused was charged with one count of corruption in terms of sec 1 (1
)(b)(ii), read with sec 1 (2), 2 and 3 of the Corruption
Act 94 of
1992.
On
24 October 2002 the appellant and his co-accused pleaded not guilty.
Appellant was convicted as charged with his co-accused and
on 21
November 2002 they were both sentenced to 15 years imprisonment.
The
charge was based on the allegation that the appellant and his
co-accused, who were police officers, on 25 June 2002 received
R2
000-00 cash, which was not due to them in a corrupt way from a
certain Mr Malete to change the chassis and engine number of
Mr
Malete's vehicle.
It
was common cause that:
(a)
Both
accused were police officers, who had a fiduciary duty in terms of
their employment.
(b)
Both
accused arrived with a vehicle on 25 June 2002, in Seshego at Mr
Malete's business.
(c)
That
appellant went into the shop and that Mr Malete followed him out of
the shop and got into the vehicle and closed the door of
the vehicle.
(d)
The
state witnesses found R2 000-00 in the vehicle in which the accused
came to the shop.
(e)
There
was no money due to the accused from the complainant.
The
disputes as far as appellant is concerned were the following:
(a)
Whether
the accused requested any payment from Mr Malete for the correction
of the chassis and engine numbers of his vehicle.
(b)
Whether
R2 000-00 was handed over by Mr Malete to the appellant in the
vehicle.
Mr
Malete testified that he bought a blue Toyota Hi-Lux in 1998 on an
auction from Bankfin. His brother-in-law was then arrested
whilst
driving the vehicle.
In
due course Mr Maleta was informed by the appellant that the chassis
number was tampered with and was also informed that according
to the
Venda authorities (the car carried Venda number plates) the car did
not appear on their books. Appellant told Mr Malete
that he and his
co-accused could change the engine and chassis number if they were
given R2 000-00. Mr Malete went to the anti-crime
unit and reported
the incident. A trap was then set up to catch the accused. The R2
000-00 that was to be used in the trap was
copied and certified so
that the serial numbers could be traced. On 25 June 2002 the
appellant arrived at Mr Malete's shop after
he had called the
appellant to tell him that he had the money. When appellant arrived,
Mr Malete followed him out of the shop and
got into the vehicle with
appellant. The co-accused was also in the vehicle.
After
some discussion he handed the money over to appellant and got out of
the vehicle. When he got out he took off his jacket,
which was a
signal to the police that he handed over the money. The police of the
anti-crime unit then approached them and arrested
the accused. The
money was found in the vehicle.
Inspector
Ramakokobu testified that she received a letter from inspector Monama
regarding the verification of the chassis and engine
number of the
vehicle in question. The appellant also contacted her about this
vehicle and he asked her to send the chassis and
engine number per
fax, which she did.
Inspector
Monama testified that appellant was a colleague of him at the motor
vehicle unit. Inspector Monama was assigned to investigate
the
vehicle in question. The appellant came with Mr Malete to him and
told him about the vehicle that was attached. He provisionally
released the vehicle to Mr Malete pending investigation. After
investigation he found that the engine number was tampered with
and
that it now carried a Venda number. He sent a fax to Venda and only
after the vehicle was released to Mr Malete did the Venda
police
confirm that the numbers allocated to the vehicle did not exist. He
later attached the vehicle again.
Captain
Mosina testified that Mr Malete reported to him that a police officer
at the motor vehicle unit requested money from him
in order to change
the chassis and engine numbers of his vehicle. After obtaining Mr
Malete's statement he set up a trap. Money
in the amount of R2 000-00
was obtained and the notes were copied so that the serial numbers
could be traced. The copies were duly
certified. When the trap was
set up the money was given to Mr Malete. Mr Malete was told to phone
the appellant to come and collect
the money. He drove alone to Mr
Malete's shop. Inspector Nesengane and Superintendent Nkuna also went
there in their own vehicle.
Mr Malete was told to remove his jacket
when the money was handed over. A police vehicle stopped in front of
the shop, a man got
out and went into the shop. The man came out of
the shop, followed by Mr Malete, who got in the vehicle with the man.
After a while
Mr Malete got out and removed his jacket. He drove to
the scene, when he got there the vehicle was already blocked by
Nesengane
and Nkuna's vehicle. When he got out the appellant was
struggling with Nesengane, he walked to the vehicle and as he walked
he
saw the driver putting his hand under his seat. Both accused were
searched but nothing was found on them. The R2 000-00 was however
found in the vehicle and it corresponded with the copies of the notes
in his possession. Both accused were arrested.
Captain
Bopabe testified that the appellant worked with him at the motor
identification unit. He confirmed that captain Monama was
the
investigating officer in the matter of Mr Malete's vehicle and that
the appellant only had administrative duties. Neither of
the accused
were assigned to investigate the vehicle in question.
Superintendent
Nkuna who was a member of the anti-corruption unit testified and
confirmed the evidence of captain Mosima and Mr
Malete.
The
appellant then testified. He testified that he never requested any
money from Mr Malete as alleged. He said that on 25 June
2002 he went
to Mr Malete's shop after he was phoned by Mr Malete to come and
fetch papers from Bankfin which he had received.
He confirmed that he
went into the shop and that Mr Malelte followed him with some papers.
He never saw or received any money from
Mr Malete. He testified that
he does not know how the R2 000-00 got in the vehicle and said many
police use that vehicle. In cross-examination
he suggested that Mr
Malete was angry with him as he saw him and the police superintendent
smoking dagga. He also suggested that
Mr Malete was angry as he
wanted him to return the vehicle. He also said that captain Mosina
might have planted the money in his
vehicle.
The
co-accused testified that the appellant requested him on that
particular day to take him to the police station to deliver post.
He
never saw Mr Malete before that day. He said that appellant came out
of the shop followed by mr Malete. Mr Malete got in the
car and
discussed some family problems with appellant. He had papers in his
hand and he also saw a R100 note. Mr Malete gave R100
to the
appellant. He testified that he knew nothing about Mr Malete's
vehicle or the problems that he had. He confirmed the arrest
and that
the money was found in the vehicle but he did not know how it got
there.
After
the evidence the accused were convicted as charged. The magistrate
remarked that the state witnesses made a good impression.
On the
other hand the appellant made a bad impression, he avoided questions,
and changed his version on various occasions. The
magistrate found
that the accused acted with common purpose in executing a corrupt
act.
This
court can only interfere if it is found that the trial court
misdirected itself. Consequently the appellant must convince the
court that the trial court erred in accepting the evidence of the
state witnesses. See
S
v Frances
1991 SACR 198
A 198J-199A
and
S
v Hadebe & Others 1997 (2) SACR (SCA) 645 E-F.
On
an evaluation of the evidence there is no indication that the
magistrate misdirected himself. The finding that the appellant
acted
as a member of a group with a common purpose as envisaged by Schedule
2, Part 2 of the General Law Amendment Act 105 of 1997
seems to be
correct. The
Shorter
Oxford Dictionary
defines
the word "group" as "two or more people, animals or
things standing positioned close together so as to form
a collective
unity". It is thus clear that a group can consist of two people.
The two accused acted together and as such the
finding of the
magistrate in this regard cannot be faulted.
The
trial court evaluated the evidence and applied the necessary
cautionary rules regarding both single witnesses and police traps.
See
S
v Chesane
1975
(3) 172 (T) 713G.
There
is no indication that the learned magistrate misdirected himself and
consequently the appeal against conviction must fail.
Some
concern was raised by the respondent's counsel regarding the fact
that the appellant's co-accused was not before this court.
Apparently
the co-accused failed to take steps to finalize his appeal. The
concern was raised that a ruling by this court may have
an effect on
the co-accused's rights if this court should find that the accused
did indeed act with a common purpose. In my view
this appeal only
relates to the appellant's role in this incident. The appellant's
co-accused is not before this court and a decision
by this court will
not have any bearing on the position of the other accused who is not
before this court and another court will
not be bound by any finding
of this court.
Sentence
The
appellant was 38 years old at the time of the incident. He worked at
the
SAP
since 1989. He is married with children. He lost his job as a result
of this
incident
and sold vegetables earning R2 500-00 at the time of the incident. He
took
care of his father and sisters. His wife was employed and earned R2
500-00. The R2 000-00 was found and as such no financial
loss was
suffered.
The
magistrate took all of this in consideration.
The
accused were police officers who were in a position of trust, which
they violated. The magistrate found that the conviction
falls within
the ambit of Part II of the Second Schedule to the
Criminal Law
Amendment Act 105 of 1997
as the accused acted as a group.
Consequently the offence attracted a minimum sentence of 15 years,
unless there are substantial
and compelling circumstances which
justify a lesser sentence.
Police
corruption is a prevailing problem in our society and the courts are
obliged to protect society against this threat to our
democracy. In
Du
Toit, commentary on the Criminal Procedure Act,
the
following is said on
28-18D-6:
In
S
v
Shaik & others
[2006] ZASCA 105
;
2007
(1) SACR 247
(SCA) at
[233]
five judges, after having referred to
South
African Association of Personal Injury Lawyers v Health & others
2001
(1)
SA 833 (CC) at [4], observed as follows:
'The
seriousness of the offence of corruption cannot be overemphasized. 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
halted. Courts must send out an unequivocal message
that corruption
will not be tolerated and that punishment will be appropriately
severe."
There
exists no substantial and compelling circumstances to deviate from
the prescribed minimum sentence and it cannot be found
that the
magistrate misdirected himself when imposing the sentence. See
S
v Malgas
2001 (1) SACR 469
(SCA).
Consequently
I recommend that the following order be made:
That
the appeal against both conviction and sentence is dismissed.
R
J TOLMAY
JUDGE
OF THE HIGH COURT
I
agree, and it is so ordered:
N
M MAVUNDLA
JUDG
E
OF
THE
HIGH COURT