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[2023] ZAKZPHC 133
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Nkosi v S (Appeal) (AR 368/21) [2023] ZAKZPHC 133 (3 November 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR 368/21
In
the matter between:
SIFISO
OWEN NKOSI
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
Appeal
from:
Regional Court, Ladysmith (Mr.H.B. Visagie sitting as a
court of first instance.)
1.
The appeal against conviction is upheld.
2.
The conviction and sentence on both Count 1 (charge of corruption)
and Count
2 (the charge of defeating the ends of justice) is set
aside.
APPEAL
JUDGMENT
Delivered on:
Mngadi
J
[1]
The appellant with leave granted on petition appeals against
conviction.
[2]
The appellant before the regional magistrate (H.B Visagie) stood
charged with two
crimes, namely, (count 1) Corruption c/s 4 (1) (a)
(i) (aa) read with
ss 1
,
2
,
4
(2),
24
,
25
,
26
(1) (a) of the
Prevention and Combating of Corrupt Activities Act No. 12 of 2004
and
Count 2 (Defeating or Obstructing the Administration of Justice).
[3]
The appellant who was legally represented throughout the trial
pleaded not guilty
to both charges. The learned regional magistrate
after hearing evidence convicted the appellant as charged and
sentenced the appellant
as follows:
Count
1: Five (5) years imprisonment half of which suspended
for five (5) years on condition that the accused is not
convicted of
any of the offences listed under
section 4
of the
Prevention and
Combating of Corrupt Activities Act 12 of 2004
and which is committed
during the period the period of suspension. Count 2: One (1)
year imprisonment, half of which is suspended
for a period of five
(5) years on condition that the accused is not convicted of defeating
the ends of justice and which is committed
during the period of
suspension. In addition, the following order was made that in
terms of
s280
(2) of Act 51 of 1977, It is ordered that the sentence
imposed on count 2 is to run concurrently with the sentence imposed
on count
1.
No
otherwise determination is made in terms of s103 (1) of the Firearms
Control Act. 60 of 2000 (The accused is unfit to possess
a firearm).
[4]
The basis of defence placed on record and confirmed by the appellant
was of the denial
of all the allegations, and in particular, that the
appellant had any intent to commit a crime of corruption.
[5]
The state to prove the charges against the appellant adduced evidence
from three witnesses,
namely, Anthony Snothi Sibiya, Mduduzi Morgan
Ndlovu and Rajesh lshrapersadh Maharaj. For the defence, the
appellant testified
and called one witness, Patrick Jabulani Miya.
The exhibits were "A" - Section 115 if Act 51 of 1977
statement"
- Written notice to appear in court (J534), "C"
- Copies of I.D of A.S Sibiya" - Copies of R100 notes, "E"
- Annexure to written notice, "F" - Transcript -
disciplinary hearing, 'G" -Cell phone records, "H'-another
set cell phone records, "J"- Pre-sentencing report and "K"-
Suitability Correctional Supervision.
[6]
Antony Snothi Sibiya (Sibiya) testified as follows: He was employed
to check fridges
belonging to Coca Cola Company. On 18 July 2014 at
14h00 he was at Bergville. He stopped and parked the Bakkie partly
blocking
oncoming traffic to make enquiries of a location of a shop
he wanted to visit. A police truck approached, and it stopped next to
his Bakkie, a police officer in uniform alighted and he came to him,
He told him to park properly, and he did so. He came to him,
and he
asked for his driver's licence. That police officer was the
appellant.
[7]
Sibiya testified that he took out his driver's licence and he gave it
to the appellant.
The appellant took it, and he instructed him to
follow them to the police station. The appellant in the police truck
had an Indian
colleague. They arrived at Bergville Police Station,
and they went to an office. In the office he sat down, and the Indian
police
officer went and sat somewhere in the office. The appellant
came to him, and he told him that his case was serious, he must try
and get something otherwise he would be in custody until Monday when
he would go to court. He told the appellant that he did not
have the
money with him. The appellant asked him whether he could organise a
friend who can organise money for him. The appellant
told him that it
was important to do that, and he went to the Indian police officer
who was seated about seven (7) metres from
them. The appellant came
back to him. He asked the appellant for his banking account number to
deposit to it the money, the appellant
refused to give him the bank
account number. The appellant said if there is someone who is willing
to assist him with the money
that person must deposit the money into
Spar Supermarket.
[8]
Sibiya testified that when he asked the appellant how much he was
required to pay,
the appellant spoke to his Indian colleague.
The appellant told the Indian colleague that since he was agreeing
the Indian
police officer must write false information in his docket,
and the wrong information was written, a wrong name, lndrean Khumalo
a name given by the appellant and a wrong address. The appellant then
gave him the docket and he asked the appellant how much he
must pay.
The appellant asked him whether he did not see the document where the
amount of R1500.00 was written. He then went to
organise the amount
which should be at least R1000.00. The appellant than gave him his
cell phone number and said after organising
or withdrawing the money
at the machine, he must call him, the cell number as recorded in his
statement, is 0[...].
[9]
Sibiya testified that he then left, and he drove to where he resided.
The docket that
he mentioned he had it with him, it is the J534. When
asked, he said he has seen the docket before, it is the one filled in
by
the appellant. He said what was in the document, the name,
address, I.D. number are incorrect. The document contains as an
admission
of guilty R1500.00. His driver's licence remained with the
appellant. The appellant was going to give it back to him after
giving
him the money he needed. He identified the money and a copy of
his driver's licence handed in as exhibits.
[10]
Sibiya testified that he left for Ladysmith. In leaving Bergville he
gave a lift to a person
proceeding to Ladysmith, He showed the person
he gave a lift where the incident took place. Whilst stopped there, a
police vehicle
approached. The appellant peeped at and asked him
whether he was still organising some means. He then decided to drive
back to
Bergville. He told the person he had given a lift to alight.
He then drove passed Bergville to Pietermaritzburg.
[11]
He first drove to Pietermaritzburg Police Station to lay a charge.
After a few days police officer
Ndlovu contacted him and told him
that it will take time to organise money for transaction and that in
the meantime he must ignore
calls from the appellant. During the day,
he had called the appellant who told him that since his driver's
licence was in his possession
even if he come with R500 it is fine.
Ndlovu called him and told him they had the money for transaction and
that if the appellant
calls, they would be in a position to go. On
Saturday the appellant called. He told him that he would cone to
Bergville at around
5 O'clock. He then met with Ndlovu who was with
another police officer. They proceeded to Bergville. They stopped at
a garage.
They searched Sibiya, and they gave him R500 in (5x R100
notes) to give to the appellant. The appellant called him and wanted
him
to pay R500.00 so that he may give back to him his driver's
licence. He met the appellant at a KFC outlet. He had arranged with
Ndlovu that he would raise the cap when the appellant takes the
money. The appellant came at KFC, took out his driver's licence
and
gave it to him, He gave the appellant R500.00. He raised his cap. The
appellant thanked him and walked away. Ndlovu approached
and he
arrested the appellant. They then proceeded to the police station.
[12]
Sibiya testified that the incorrect information was put in the
document because he had admitted
that he would pay the money. He was
told at the police station not to sign with his exact signature. When
the J534 document was
completed at the Police Station the Indian
police officer sat. The Indian police officer wrote what the
appellant told him. He
agreed to pay because the appellant threatened
that if he did not pay, he will be kept in custody the entire weekend
and until
Monday when he would appear in court. The appellant only
told him when he was leaving that he must pay an amount of R1000.00
but
the money written in the document was R1500.00. If he did not
ask, he would have known that the money to pay is R1500.00 written
in
the document a fine. He did not know where the Indian police officer
got the incorrect information. He was told to sign with
a wrong
signature. He did not know what was written on the document. He knew
that if someone is charged for a traffic matter, he
must pay a fine,
but he did not know why he wrote Kin the space for a signature. He
asked how much he was going to pay after he
was given the document.
He did not offer, he was given the document, he asked for his
driver's licence form the appellant. The
appellant told him once he
is done withdrawing the money, he must call him, and the appellant
would come to him.
[13]
Sibiya testified that after he had left, he started calling the
appellant. He did not recall
the date. He called the appellant about
his driver's licence. They then contacted each other. The appellant
in one of the calls
asked whether he would come to Bergville. When he
left the police station the appellant said when he has got the money
he must
call him, he must not come back to the police station he (the
appellant) would come to him. Nobody said to him once he has paid
the
money, he will take his driver's licence. When he was at the place
where he was initially found with the person, he had given
a lift,
the appellant asked him whether he had organised something and he
said he was still organising. He asked the person he
gave a lift to
Ladysmith to alight because he did not know where the police van that
passed with the appellant had gone to, and
he was afraid.
[14]
Sibiya testified that as indicated in his statement, the appellant
was hoping that he would call
him because he had his driver's
licence, but the appellant said he must not come back but whenever he
got the money, he must call
him. He told the appellant to meet with
him at KFC outlet because he was hungry. He denied that he offered
the money to the appellant
to thank him and for petrol. He did not
commit any traffic violation. He did not protest his innocence since
he was not given time
to do so. The appellant told him the name to
sign in the written notice to appear (J534). He stated that he went
to withdraw money
from an ATM at Bergville that is how he managed to
get out of the police station, but he had no money. He told the
police that
he had received the money and had to go to the ATM to
withdraw it.
[15]
Mduduzi Morgan Ndlovu (Ndlovu) testified as follows: He is a Captain
in the South African Police
Service. He received a complaint on 18
July 2014. He then arranged to consult and interview the complainant
which he did. It transpired
that the accused was not calling upon the
complaint to pay the money which showed no urgency in the matter.
Sibiya told him that
he was scarred to drive without a driver's
licence. He then told Sibiya to phone the appellant and tell him that
he needs his licence.
The appellant advised Sibiya that he had no
problem to give back the driver's licence provided the complainant
paid R500.00 instead
of R1000.00. On 16 August 2014 he set a trap
with a Captain Nxumalo and Warrant officer Khuzwayo, having received
the required
authority. They drove to Bergville, they searched Sibiya
and gave him five (5) R100 notes after taking their serial numbers.
Sibiya
was instructed to give a signal by taking off his cap once the
transaction had taken place. Ndlovu testified that he could not see
what took place between Sibiya and the appellant in the KFC outlet.
The appellant when approached was searched and the marked
R100 notes
were found on him.
[16]
Rajesh lshrapersadh Maharaj (Maharaj) testified. (He was warned in
terms s204 of Act 51 of 1977
as an accomplice). He was stationed at
Ladysmith and worked as a Warrant Officer with 27 years' service. On
18 July 2014 he was
on duty under Bergville Police Station performing
crime prevention duties. He accompanied the appellant transporting
prisoners
to Ladysmith prison. On their return about 10 km from
Bergville he noticed an Opel Corsa parked facing oncoming traffic.
The appellant
who was driving stopped in front of the Opel Corsa. The
appellant went to talk to the driver of the Opel Corsa. The appellant
returned
and told him that he asked the Opel Corsa driver to follow
them to the police station to be charged for inconsiderate driving.
They arrived at the police station, and he went to see the station
commander with whom he spent about 20 minutes. He returned to
where
the appellant was with Sibiya, the Opel Corsa driver. He then told
the appellant that he could assist him to fill in an annexure
notice
for an accused to appear in court. He asked Sibiya for his
particulars, his name and surname. He then proceeded and warn
Sibiya
after he had signed as required. It is an annexure attached to J534;
he did not read the particulars in J534. He then again
went to the
station commander. He returned and he saw the appellant taking the
J534 and annexure to the charge office for registration
and CAS
system. The appellant told him that the driver left his licence on
the table. He told the appellant to take the driver's
licence and put
it on the box in the charge office so that the driver can fetch it
from there.
[17]
The registration of the J534 took about 15 to 20 minutes. He then
went with the appellant to
his home. They saw the Opel Corsa parked
on the side of the road. The appellant spoke to the driver, and they
drove away. Maharaj
denied that he was present during a conversation
requesting the driver of the Opel Corsa to pay or that he asked the
driver questions
and the appellant interpreted for him to write false
information. He said Sibiya in that regard is lying. He stated that
Sibiya
gave him his name and signed. He would have followed a
discussion between the appellant and Sibiya although it was in
lsiZulu.
[18]
Sibiya was recalled, and he testified relating to the cell phone
records. The cell phone records
showed telephonic communication
between Sibiya and the appellant. The appellant testified relating to
what happened. He testified
that Sibiya gave him the particulars that
appear in the J534 notice. Sibiya said the driver's licence he left
behind was not his
driver's licence. He denied that he asked Sibiya
for a bribe. When he gave Sibiya the driver's licence he had
left behind,
Sibiya gave him the money found on him by the police,
thanking him. He denied that he told Maharaj to write false
information in
J534 or in the annexure to J534 and that he told
Sibiya not to write his correct signature. The appellant admitted
that in J534
he did not put the date for the person to appear in
court and that the other details in J534 were given to him by Sibiya.
Sibiya
took out a driver's licence but said that was not his driver's
licence, he had forgotten his driver's licence at home, which he
accepted. He admitted that if the notice is not properly completed
the case may be struck off the roll at court, and he also wrote
18
July 2014 as a date before which to pay a fine.
[19]
The appellant as a witness called Patrick Jabulani Miya (Miya). Miya
testified that on 18 July
2014 in the afternoon he was hitchhiking to
Ladysmith in Bergville Sibiya driving in an Opel Cos stopped for him.
He boarded the
vehicle and sat in front with the driver. He Sibiya
who was unknown to him, told him that police were giving him
problems, and
that he will show him where it occurred. Sibiya drove
on and parked near a gate on the right-hand side of the road. He told
him
what happened in that sport earlier. Sibiya then took out his
driver's licence and said the police issued him with a ticket which
he showed to him and that the particulars in the docket were
different from those in the driver's licence. Nearby was a
person wearing a green overall. Sibiya requested that Miya to
whatever happens he would like him to be a witness.
[20]
He testified that then a police van with two police officers
approached and it stopped. One police
officer asked what is happening
there, was there a problem. Sibiya said no there was no problem. The
police drove away. Sibiya
asked for Miya's telephone number, and he
said they must take a different route otherwise the police would stop
him again. He told
Sibiya that he cannot be his witness. Sibiya then
said they must go back, and he would leave him where he picked him
up. Miya refused
and said he was proceeding to Ladysmith, and he got
out of the vehicle. Sibiya drove away. Sibiya said he feared that the
police
would stop him again, they had issued him with a ticket with a
high amount. He told Sibiya that he knew the police officer involved
Nkosi.
[21]
The learned regional magistrate stated that it is common cause that
the appellant omitted the
court date and the full CAS number on the
J534, and he also entered the date on which the offence was committed
as the date by
which the admission of guilt fine had to be paid.
These facts founded the basis for a charge of defeating the ends of
justice.
In my view, the evidence not challenged clearly showed that
at the time the J534 ticket fine is issued, the CAS number is not
entered
because it is not available. The omission of the court date
and entering a date on which the admission of guilt fine has to paid
is wrong, but these facts on their own would not establish a crime of
the defeating of the ends of justice. It does not defeat
the
prosecution of the crime, in my view, since the date on which the
crime was committed, the crime and the particulars of the
crime are
stated as well as the correct registration number of the vehicle
involved. Not to make possible for the offender to pay
an admission
of guilt fine on its own is not a crime of defeating the ends of
justice. There was no evidence that the documents
submitted by the
appellant would not have resulted in a crime registered if no court
date was stated and there was an incorrect
date for the payment of an
admission of guilt fine and the particulars of the vehicle driven by
the offending driver were correctly
recorded. It is difficult to find
an intention to defeat the ends of justice by not indicating a court
date and putting an incorrect
date for the admission of guilt fine
when the documents for the laying of the charge were completed and
submitted for registration,
in particular, in the absence of the
evidence by the state of the significance of the omission. It is
trite that the hearing of
an appeal against findings of fact is
guided by the principle that in the absence of a demonstrable and
material misdirection by
the trial court, its findings of fact are
presumed to be correct and will only be disregarded if the recorded
evidence shows them
to be clearly wrong. See
S v Hadebe and others
1998(1) SACR 422 (SCA) at 426b;
R v Dhlumayo and another
1948
(2) SA 677)
A).
[22]
The learned regional magistrate regarded Sibiya as an accomplice and
a single witness on the
count of corruption. He found the evidence of
the appellant wanting in failing to request the drivers' licence of
Sibiya and in
failing to note that the driver's licence Sibiya
produced it did not have the particulars Sibiya gave as his
particulars.
[23]
The above concern by the regional magistrate is well founded.
However, Sibiya testified that
the wrong particulars appearing in the
J534 fine ticket were written by Maharaj instructed by the appellant
after he had agreed
to pay. But Maharaj as a state witness testified
that those particulars were written in J534 by the appellant
furnished by Sibiya
and Sibiya to him (Maharaj) for the annexure to
J534 furnished the same particulars which he recorder in the
annexure. As a result,
the state did not prove who furnished the
wrong particulars and for what purposes which results in the failure
by the appellant
to explain why he did not take the particulars from
a driver's licence immaterial. The learned regional magistrate
correctly found
that the evidence of Sibiya in what happened when he
was issued with the traffic ticket was contradictory and inconsistent
with
the evidence of Maharaj. Sibiya found to be a poor witness gave
a version which was not corroborated relating to what happened at
the
police station.
[24]
Sibiya testified that wrong particulars were recorded in J534 because
he had agreed to pay. When
he asked how much he was required to pay,
the appellant showed him the amount of the fine which was R1500.00.
It means the wrong
particulars were recorded before it was agreed how
much Sibiya was agreeing to pay which does not make sense. Sibiya
testified
that he was given a traffic fine ticket with wrong
particulars and allowed to go without any firm agreement of when, how
and how
much to pay which is unlikely even if he had left his
driver's licence behind because he would simple be issued with
another driver's
licence.
[25]
Sibiya testified later under cross-examination that when he left the
police station, he had told
the appellant that the money has been
forwarded to him and he is going to withdraw it from an ATM, but
there is no evidence that
he arranged with the appellant where to
give the appellant the money. If this was the case, it is
inexplicable that the appellant
met with Sibiya later it was
coincidental, and the appellant did not ask Sibiya for the money. If
the appellant told Sibiya to
pay him so that he would not face the
law, why would he tell Sibiya the prescribed fine and say that is the
amount he to be paid
to him. The appellant in completing all the
prescribed documents and submitting the documents for a case to be
registered created
a record with his signature, if not fully or
properly completed, he was a responsible person to account, why would
he do that if
he was accepting a bribe for Sibiya not to be charged.
[26]
Maharaj, a state witness, testified that the appellant told him that
Sibiya left behind his driver's
licence and Maharaj said the
appellant must place it on the 'lost and found' items box in
Community Service Centre in the police
station where lost and found
items were kept. If appellant was keeping the driver's licence to
force payment of a bribe, why would
he make it known that Sibiya had
left behind the driver's licence, and have it placed where such items
are placed for collection.?
[27]
Sibiya fully implicated Maharaj, and Sibiya taking Miya a mere hiker,
to where incident took
place, telling him what happened, indicates he
felt aggrieved to be issued with a traffic ticket and he wanted to do
something
about it. Sibiya parted with appellant when everything was
in order, in that an agreement was reached, why was he so unsettled
when he later met with the appellant and Maharaj, and then became
hell bent to avoid them.
[28]
The learned regional magistrate found that the evidence of Sibiya was
replete with inconsistencies,
it was far from being clear and
satisfactory in all material respect. There are no safeguards, in my
view, that as evidence of
an accomplice it could safely be relied
upon. Sibiya was not a credible and reliable witness. The
probabilities, in my view, are
equally balanced, it results in a
conclusion that the state bearing an onus to prove the guilt of an
accused beyond reasonable
doubt failed to do. The police well aware
of the continuing interaction between Sibiya and the appellant but
inexplicable decided
not to have the interaction recorded which can
justify and inference that such interaction would have shown Sibiya
setting up the
appellant as claimed by the appellant. The learned
regional magistrate, in my view, did not give proper weight to the
unsatisfactory
features in the evidence of Sibiya which constitutes
failure to approach the evidence with the required caution.
[29]
The charge of corruption alleges that 'during the period 18 July 2014
to 16 August 2014 the accused,
being a public officer, directly or
indirectly, unlawfully accepted/agreed/offered to accept any
gratification, to wit R1 500-00
cash from any other person, to wit
Anthony Snothi Sibiya, whether for the benefit of himself in order to
act, personally so to
act, in a manner that amounts to the illegal,
dishonest, unauthorised, incomplete, or biased exercise, carrying out
or performance
of any powers, duties, or functions arising out of a
constitutional, statutory, contractual or any other legal obligation,
to wit
retaining the driver's licence of Anthony Snothi Sibiya and
demanding an amount of R500-00 from Anthony Snothi Sibiya for the
return
of his driver's licence and to avoid prosecution'. In other
words, the appellant is alleged to have demanded to be paid R500 to
carry out his duty which was to the keeping of Sibiya's driver's
licence and demanding payment of R500 to get it back. It is a
strange
charge in that there was no evidence that it was the official duty of
the appellant to keep Sibiya's driver's licence and
to demand payment
to get it back. Conspicuously, there is no allegation that the
appellant demanded and accepted a gratification
for not laying a
criminal charge, which it was his duty to do.
[30]
The evidence, on the state's interpretation, shows that the recording
of wrong particulars on
J534 was part of causing Sibiya to escape the
consequences of his conduct because he had agreed to pay and
eventually paid R500.00
and the keeping the driver's license was to
ensure compliance. What happened on 18 July 2014 was part of what
happened on 16 August
2014. The charge of corruption could not be
alleged and be proved without the evidence of what happened on 18
July 2014. Therefore,
the second charge overlaps with the first
charge. The duplication or unfair splitting of charges infringes the
accused's' constitutional
right to it fair trial. It occurs when
conduct constituting a single composite charge is charged as more
than one charge. It seriously
prejudices the accused in that it
exposes him to multiple convictions and multiple sentences for a
single criminal conduct. See
S v Mutawarira & another
1973
(3) SA 901
(RA) at 905.
[31]
The test is whether conviction in the second charge is based on the
fact necessary to prove the
first charge. In such situations the
prosecution must determine which of the two offences should be
charged or the prosecution
can put one main charge and use the other
as an alternative. The main charge is corruption. The facts alleged
in the charge of
defeating the ends of justice fall within the
alleged corruption. The charge of defeating the ends of justice was
not charged as
an alternative as the charge of corruption and it is
not a competent verdict to the charge of corruption, if it falls away
and
the appellant cannot be convicted of it even if the evidence
proves it. In respect of it, the court as the accused pleaded to it,
must return of verdict of not guilty.
[32]
The charge of corruption is fatally defective. Even if it was so, the
evidence as analysed did
not prove the charge beyond reasonable
doubt. It is impossible on the evidence of Sibiya and that of Maharaj
to determine beyond
reasonable doubt what happened on 18 July 2014 at
the police station.
[33]
The appeal against conviction falls to succeed. It is proposed that
it be ordered as follows:
1.
The appeal against conviction is upheld
2.
The conviction and sentence on both Count 1 (charge of corruption)
and Count
2 (the charge of defeating the ends of justice) is set
aside.
Mngadi
J
I
agree.
DavisAJ
APPEARANCES
Case
Number:
AR
368/21
For
the Appellant:
Mr
Hlatshwayo
Instructed
by:
J.V.
Mathonsi Attorneys
SPRINGS
For
the Respondent:
Mr
Sokhela
Instructed
by:
Deputy
Director of Public Prosecutions
PIETERMARITZBURG
Date
of Hearing:
27
October 2023
Date
of Judgment:
03
November 2023