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[2023] ZAKZPHC 55
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Dlamini v S (AR53/2022) [2023] ZAKZPHC 55 (26 May 2023)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL DIVISION, PIETERMARITZBURG
CASE
NO.: AR53/2022
In
the matter between:
GOODMAN
SANDILE
DLAMINI

APPELLANT
and
THE
STATE

RESPONDENT
This judgment was handed
electronically by transmission to the parties’ representatives
by email. The date and time for hand
down is deemed to be at 12:00
noon on the 26
th
May 2023
ORDER
On
appeal from:
the Durban Regional Court:
The appellant’s
appeal against his conviction and sentence is dismissed.
JUDGMENT
Chithi AJ (Chetty J
concurring)
[1]
On 7
October 2021 the appellant was convicted of two counts of corruption
in the Regional Court, Durban in contravention of the
Prevention and
Combating of Corrupt Activities Act.
[1]
On 11 October 2021 the appellant was sentenced to four years’
imprisonment, half of which was suspended for a period of five
years.
Both counts of corruption were taken as one for the purposes of
sentence. The appellant was granted leave to appeal against
his
conviction and sentence.
[2]
The charges against the appellant is that on or about 11 September
2020
at the Lusaka Informal Settlement, Chatsworth, KwaZulu-Natal,
the appellant who was a police sergeant with the South African Police

Service Band KZN stationed at SAPS College in Chatsworth solicited
payments in the sum of R450 and R400 in cash from the complainants,

Ms Nomusa Ngqulumba and Mr Mbongeni James Mahlaba in exchange for him
not to arrest them for selling liquor without a licence.
[3]
Following his conviction, the appellant contended in his grounds of
appeal
that:
(a)
The learned magistrate misdirected herself in finding that the
prosecution had proven its
case against him beyond a reasonable
doubt.
(b)
The magistrate erred by not considering that there was no entry into
the SAP13 register
of a R50 note which comprised the money which was
recovered from the appellant upon his arrest.
(c)
In imposing a sentence which was unduly harsh and disproportionate to
the crime.
(d)
The magistrate misdirected herself in not obtaining a pre-sentence
report before imposing
a sentence.
[4]
The evidence that was presented at trial was common cause between the
appellant and the State except in relation to the critical issue of
whether the appellant solicited money from the complainants
for him
not to arrest them for selling liquor without a licence.
[5]
The facts are briefly that on 11 September 2020 Warrant Officer K.C.
Dlamini
and the appellant, who were both stationed at the SAPS Band
at Chatsworth College, asked, and were granted permission by  Lt

Col Logarsperan their commander, to leave their work premises to go
to a nearby tuckshop. After a few minutes Dlamini reported
to their
commander that they were back. Each of them went to their respective
workstations. At a later stage Lt. Col Logarsperan
left the office.
The appellant again left the police premises to go to the tuckshop to
buy a different pack of cigarettes as the
one he initially bought was
not the brand he customarily smoked. According to him along the way
he met a young man who was badly
injured and who pleaded for his
assistance to recover his cellphone from two men who had forcibly
taken it from him. He assisted
the man under protest as crime
prevention was not part of his usual duties. According to the
appellant he searched for these men
in houses in which liquor was
sold as he believed these men moved from place-to-place drinking.
[6]
The complainants, who both resided in Lusaka Informal Settlement,
sold
alcohol from their homes without a licence. They both testified
that when the appellant came into their respective houses, he
produced
his appointment card reflecting that he was a member of the
SAPS. Upon entering their respective houses, he instructed each of
them to open their fridge. When he found that there were beers in the
fridge, he threatened to arrest them for selling liquor without
a
licence unless they paid him a bribe. Ms Nqgulumba paid the appellant
R450 in order to prevent her arrest while Mr Mahlaba paid
him R400.
Thandeka Mkhabela (‘Ms Mkhabela’), a ward committee
member, was alerted to the presence of the appellant
at her residence
when she received a message that someone was looking for her. She
together with another ward committee member
attended to the appellant
as he was reportedly looking for people that were selling liquor.
[7]
At that stage a group of people started gathering in the vicinity.
When
Ms Mkhabela and her fellow ward committee member asked the
appellant which police station he came from, and who was the person
who instructed him to look for people who were selling liquor, the
appellant mentioned the name of an Indian gentleman as the person
who
had instructed him. When they further asked the appellant about what
was in the diary that was in his possession the appellant
threatened
to arrest them if they continued asking him questions. Ms Mkhabela
then snatched the diary that was in the appellant’s
possession
and took it to her house. While she was in her house she heard a
noise outside, and she then noticed that the appellant
was being
attacked by a group of people.  When the appellant ran away, he
was pursued by the group. The appellant was fortunate
to be rescued
by Lt Col. l Mzimela from the KwaDukuza SAPS who coincidentally
happened to have been passing nearby when he saw
the appellant being
chased. After ascertaining the reason why, the appellant was being
pursued by the community members, Lt Col.
Mzimela took the appellant
to the Chatsworth Police Station where he was later placed under
arrest.
[8]
Lt Col Thwala confirmed that the appellant was brought to the
Chatsworth
Police Station by Lt Col Mzimela. He further confirmed
that he arrested the appellant after Ms Nqgulumba came to the police
station
and reported that the appellant had solicited a bribe from
her to prevent her arrest for selling liquor without a licence.
[9]
The appellant denied ever demanding money from any of the
complainants.
He stated that while he was waiting for the owner of
the house with big windows in which liquor was reportedly being sold,
he was
approached by members of the community who enquired if he was
a police officer. When he answered in the affirmative and produced

his appointment card, they accused him of going around and taking
peoples monies.  When he denied this, two men from the group

that approached him were not prepared to listen to him and they then
dragged him to a dusty area.
[10]
During that conversation Ms Mkhabela took the appellant’s
diary. He was then assaulted
by the members of the community. Once he
realised that explaining his situation was not going to help him, he
then ran away. He
was assisted by the intervention Lt Col Mzimela
who took him to the Chatsworth Police Station, where he was
arrested.
[11]
In light of
these facts, the court a quo was confronted with two mutually
destructive versions. The approach to resolving factual
disputes in
the face of two irreconcilable versions was enunciated by the Supreme
Court of Appeal in
S
v M
.
[2]
[12]
The magistrate was alive to these mutually destructive versions and
she specifically adverted
that in order to answer the question of
whether the guilt of the appellant was proved beyond a reasonable
doubt she had to have
regard to the credibility of the witnesses, the
probabilities and the authorities concerning matters of this nature.
She
further concluded that the appellant contradicted himself and his
version was laden with improbabilities. I agree with the magistrate

that the appellant’s version was not only contradictory but it
was also improbable. There were several material contradictions
and
improbabilities in the evidence of the appellant, some of which were
adverted to by the magistrate in her judgment. I highlight
some of
the improbabilities and contradictions hereunder.
[13]
The appellant’s version that he was stopped by a young man
while he was on his way
to the tuckshop, whose salutations were
‘greetings Mr Police,’ is not only improbable but is also
demonstrably contrived
and false. It is common cause that the
appellant was not dressed in police uniform on 11 September 2020 but
was wearing civilian
clothing. It is therefore highly improbable that
this young man would have known that the appellant was a police
officer when he
was not attired in the SAPS uniform. Even if it is
accepted for a moment that this young man knew the appellant prior to
the day
in question, as the appellant put it that this young man used
to see him when he was passing the gate of the SAPS Band KZN in
uniform,
what compounds the appellant’s difficulties is that
the appellant does not know the name of this young man that he was so

prepared to help.  The appellant never made any effort to
establish who this young man was. He did not even try to establish

how the young man came about to be injured. Moreover, notwithstanding
the appellant’s contention that when he went to the
houses of
the complainants and Ms Mkhabela, none of them saw this young man or
attested to his presence during their interaction
with the appellant.
[14]
Lt Col Logarsperan testified that the appellant and Dlamini came back
within ten minutes
after they had left for the tuckshop, and that
they reported to her that they were back. At no point did the
appellant take issue
with this testimony and suggest that, to the
contrary, when they came back, the office of Lt Col Logarsperan was
closed, nor did
he suggest that he and Dlamini had never reported to
her that they were back. When the appellant was confronted about not
reporting
that he was going out again to Dlamini, who was superior to
him in rank, he retorted by saying that Dlamini did not like being
disturbed when he had started his practice sessions. However, when
the issue of why did he not tell Dlamini that he was going to
leave
again to go to the tuckshop was raised later, the appellant changed
his tune to say that he told Dlamini that he was going
outside to the
tuckshop.  What is significant about this change of evidence is
that the appellant never testified to this
during his
evidence-in-chief, nor was this version put to Dlamini when he
testified.
[15]
Moreover, the appellant never challenged the evidence of his
commander, Lt Col Logarsperan
when she testified that members of her
team were not allowed to be involved in crime prevention duties
except upon the specific
request from the provincial office. It was
only in the case of an emergency that a member of the Band would give
assistance in
crime prevention duties, but only after consultation
with his/her commander. The members were not allowed to go out on
their own
and without permission. However, during his
cross-examination the appellant sought to contest his commander’s
version.
[16]
Further, when the appellant was confronted as to the reason why he
did not go and look
for the different pack of cigarettes at the other
shops while he was still in company of Dlamini, he could not advance
any cogent
or satisfactory answer to this question. He was evasive
and referred to the fact that he had left his cell phone charging at
his
office. It was only when the appellant was pressed on this
question that he said that the issue of going to the other shops did

not come to his mind. The appellant was equally evasive when he was
confronted about the reason why he looked at the houses where
alcohol
was sold instead of looking for the suspects who had taken the
cellphone from the young man, and as to why he enquired
about alcohol
and not about the suspects.  The only reason he could muster was
that he was hopeful that he might find the
suspects in those places.
The appellant did not help his version when it was put to him that he
had threatened the complainants
that he would arrest them if they did
not give him the money, to which he responded by saying that he was
alone and not even in
his uniform, and therefore he would not have
been able to arrest two or three people. This begs the question as to
how the appellant
was going to be able to arrest the two men who had
allegedly taken the cell phone of the young man who had solicited his
assistance.
[17]
On the issue of the cell phone, the appellant kept vacillating
between saying the young
man who solicited his assistance had his
cell phone taken while he was drinking with the two men and, on other
occasions he said
that the young man was robbed of his cell phone.
What became the most significant contradiction in the appellant’s
evidence
was when he was asked by his counsel whether he took money
from anyone without their permission and his answer was that the only

amount of money he had was money which he had withdrawn on that day.
The appellant’s counsel tried to undo the damage by
asking a
leading question to this effect ‘was this amount withdrawn or
given by Mr Mtshali’. It is only at that stage
that the
appellant tried to correct himself by saying he was given the
money by Mr Mtshali on 9 September 2020 because he
withdrew that
money from Capitec Bank.  At that stage the damage had already
been done to his case and this damage was incapable
of being undone.
A question that must be asked is, if the money was put into the
account of Mr Mtshali and for Mr Mtshali to withdraw
it and later
hand it to the appellant, what was the money still doing in the
appellant’s possession two days later after
it was given to
him?
[18]
From this synopsis, in my view the magistrate was correct to conclude
that the appellant’s
version was riddled with inconsistencies
and inherent improbabilities. In the circumstances, it was completely
unecessary for the
magistrate to make any adverse demeanour findings
against the appellant to justify her rejection of his version which
was palpably
and patently false.
[19]
The
appellant’s contention that there was no entry of a R50 note
into the SAP13 exhibit register which would have comprised
part of
the R450 he solicited from Ms Ngqulumba as amounting to a material
deficiency entitling the court a quo to reject the State’s

evidence, is without merit. This is because of the intervening period
between the time that the appellant left the house of Ms
Ngqulumba
and the time that he was arrested. Anything could have happened in
between that period. Further, the appellant’s
contention
pre-supposes that his arrest involved a trap as contemplated in s
252A of the Criminal Procedure Act
[3]
involving the use of money which was marked. This is not such a case.
Moreover, there was never any stage where the appellant was
searched
by Lt Col Thwala as counsel for the State correctly pointed out
during argument. In my view, there has not been any misdirection
on
the part of the magistrate, she correctly evaluated the evidence and
her conclusions are based on sound reasoning.
[20]
The appellant’s attempt to assail his conviction on the basis
that the magistrate
failed to approach the complainants’
evidence with caution is not borne out by the testimony which was
given by the witnesses.
The evidence which was tendered by Ms
Ngqulumba, Mr Mahlaba and Ms Mkhabela can hardly be said to
constitute evidence of a single
witness. These witnesses corroborated
each other and therefore their evidence did not constitute evidence
of a single witness.
To the extent that the exchange of money between
the appellant and each of the two complainants may well have certain
features
of being evidence of a single witness, when this evidence is
considered in totality it cannot correctly be categorised as the
evidence
of a single witness especially when it comes to the
appellant’s modus operandi.
[21]
For all the reasons which I have alluded to above I am of the view
that the magistrate
correctly rejected the appellant’s version
as improbable and false beyond a reasonable doubt. Her conclusion
that the State
proved the appellant’s guilt beyond a reasonable
doubt can therefore not be faulted. The appellant’s appeal
against
his conviction must therefore consequently fail.
[22]
I now turn to deal with sentence.  As already indicated the
appellant was sentenced
to four years’ imprisonment with each
of the two counts of corruption taken together as one for the
purposes of sentence,
and with half of that sentence suspended. The
appellant’s effective sentence was therefore a period of two
years.
[23]
The imposition of a sentence is pre-eminently a matter that falls
within the discretion
of the trial court. An appeal court is at
liberty to interfere with a sentence imposed if, in imposing a
sentence, the trial court
committed an error or misdirection or if
the sentence is so disproportionate to the nature of the crime that
it induces a sense
of shock or outrage.
[24]
It was contended on behalf of the appellant that the sentence is
unduly harsh so as to
induce a sense of shock and is disproportionate
to the offences for which he was convicted. The appellant’s
counsel unfortunately
did not refer to any comparative authorities to
support his contentions.
The sentence which was
imposed in this case is not materially different from the sentences
which were imposed in other comparable
cases which are set out
hereunder.
[25]
In
S
v Mogotsi
[4]
a
sentence of four years’ imprisonment, two years of which were
suspended for two years, was imposed on a 30-year-old traffic
officer
who was a first offender and had accepted R100 from a motorist in
exchange for the ‘cancellation’ of the summons.
He then
changed
the motorist's registration number and the address details on the
other copies of the summons in order to cover his
tracks and
ensure that the motorist could not be traced.
[26]
In
S
v Mahlangu and Another
[5]
a sentence of six years' imprisonment, two years of which were
conditionally suspended for a period of five years, imposed on two

police officers was confirmed on appeal. The appellants, who were
investigating a homicide case, demanded R600 from the complainant,
a
security guard who had shot and killed a suspected robber, to
'withdraw' the case.
[27]
In
S
v Newyear
[6]
the investigating officer in a case of dealing in drugs against three
members of the same family approached another member of the
family
and offered to have the case withdrawn in exchange for four tyres. He
was sentenced on appeal to four years’ imprisonment
of which
two years were suspended.
[28]
The appellant was a police sergeant when he committed the offences in
question.  He
had an obligation to protect the members of the
community against crime instead of perpetrating crime against them,
using his position
of trust to clinically execute his criminal
conduct. The offences for which the appellant was convicted were
premeditated in that
he first obtained the consent of his commander
to go to the tuckshop. He came back to the office and a little while
thereafter
went back to the tuckshop without seeking the permission
of his commander. The fact that the appellant was a policeman is an
aggravating
factor in my view. There is nothing in the sentence that
was imposed on the appellant which induces a sense of shock. The
sentence
can hardly be said to be disproportionate to the offence for
which the appellant was convicted. The appellant’s sentence is

consonant with other sentences in other comparative cases. If
anything, the appellant was more than fortunate to have had half
of
his sentence of four years’ imprisonment suspended.
Accordingly, I therefore cannot find any misdirection on the part
of
the trial court and consequently this court is not at liberty to
interfere with the sentence.  It therefore follows that
the
appeal against the sentence must also fail.
Order
[29]
In the result, I make the following order:
(a)
The appeal is dismissed.
Chithi
AJ
I
concur, and it is so ordered.
Chetty
J
APPEARANCES
Counsel
for the Appellant:
S.
Edwards
Instructed
by:
R M D
Legal Services
Counsel
for the Respondent:
Mr.
Mzulwini
Instructed
by:
DPP:
Durban
Date
Hearing:
4
February 2023
Date
of Judgment:
26
May 2023
[1]
Act 12 of 2004.
[2]
S
v M
2006 (1) SACR 135
(SCA) para 189.
[3]
Act
51
of 1977.
[4]
S
v Mogotsi
1999 (1) SACR 604 (W).
[5]
S
v Mahlangu and Another
2011 (2) SACR 164 (SCA).
[6]
S v
Newyear
1995
(1) SACR 626
(A).