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[2011] ZASCA 64
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Mahlangu and Another v S (2011 (2) SACR 164 (SCA)) [2011] ZASCA 64; 497/10 (1 April 2011)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case no: 497/10
In the
matter between:
JOHANNES
MAHLANGU
...........................................................................
1
st
Appellant
EDWARD
RAMETSI
..................................................................................
2
nd
Appellant
and
THE
STATE
..................................................................................................
Respondent
Neutral citation:
M
ahlangu v The State (497/10)
[2011]
ZASCA 64
(1 April 2011)
Coram:
STREICHER, SHONGWE JJA andPETSE AJA
Heard:
18 MARCH 2011
Delivered: 1 APRIL 2011
Summary:
Corruption – Interpretation of section 1(1)(b)
of the Corruption Act 94 of 1992 – Interference by presiding
officer
during trial – different versions put by legal
representative – Competence or the lack thereof of counsel –
fairness
of trial
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from
:
South Gauteng High Court
(Johannesburg) (Blieden J and Saldulker J sitting as court of first
instance).
The appeal against both conviction and sentence is dismissed.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
SHONGWE JA (STREICHER JA and PETSE AJA concurring):
[1] The two appellants (Mahlangu and Rametsi) were convicted in the
Regional Court, Johannesburg of a contravention of s 1(1)(b)
read
with s 3 of the Corruption Act 94 of 1992 (the Act).They were
sentenced to 6 years’ imprisonment, two years of which
were
suspended for a period of five years on condition that they were not
convicted of corruption or extortion committed during
the period of
suspension. The magistrate refused leave to appeal. They petitioned
the Judge President (South Gauteng High Court)
where leave was
granted. The court below (Blieden J & Saldulker J concurring)
dismissed the appeal against conviction and sentence,
however it
granted leave to appeal to this Court.
[2] When granting leave to appeal the court below mentioned that
counsel for the appellants raised a point which was not argued
during
the appeal. The point related to whether the statutory provisions had
been proved or not and what the consequences thereof
were. It also
raised the possibility that the appellants may not have been properly
represented at the trial and that the presiding
magistrate may have
misdirected himself in convicting them.
[3] The main grounds of appeal raised by the appellants are: (a) the
state failed to prove the statutory requirements for the
contravention of s 1(1)(b)(i) or (ii) of the Act; (b) the presiding
magistrate entered the arena thereby interfering with the proceedings
to the prejudice of the appellants; (c) the legal representative of
the first appellant was confused, incompetent and ill-prepared
to the
point of rendering the appellants’ trial unfair; and (d) the
presiding magistrate disregarded the cautionary rules
applicable to a
single witness and the evidence of a trap. Regarding sentence it was
contended that the trial court misdirected
itself when dealing with
the seriousness of the offence and related mitigating factors.
[4] It is necessary to deal with the factual background. The state’s
case is that the complainant (Makhamba), a security
guard, had shot
and killed a suspected robber in self-defence and in defence of
property in 1998. The second appellant (Rametsi)
was the
investigating officer in respect of this incident. The first
appellant, (Mahlangu), also a police officer, usually accompanied
Rametsi during his investigation of this matter. In November 2000
Rametsi and Mahlangu visited Makhamba at his place of employment
seeking a statement regarding the shooting, which he gave. On this
occasion the two police officers suggested that Makhamba should
pay
them a sum of R600 in order for them to withdraw the case. They
further threatened to arrest and lock him up if he failed to
pay them
the money. He indicated that he did not have the money but that he
would speak to his employer.
[5] Fearing arrest Makhamba approached his employer and informed him
about the appellants’ proposition. The employer, in
turn,
reported the matter to the Anti-Corruption Unit and requested an
investigation. Makhamba was again approached by the appellants
and
also on one occasion by Rametsi alone. On that occasion he paid R50
to Rametsi, being all he could afford.
[6] An arrangement was made for the police officers to visit again in
January 2001. This arrangement was communicated to the
Anti-Corruption
Unit which then prepared to set up a trap in order to
arrest Rametsi and Mahlangu. The Anti-Corruption Unit officers met
with Makhamba
days before the day of the trap. On the morning of 25
January 2001 Inspector Mothudi of the Anti-Corruptioni Unit arrived
at Makhamba’s
place of employment (a factory) accompanied by
other police officers, all in plain clothing. They handed R600, which
was made up
of one hundred rand notes, to Makhamba. The arrangement
was that he would give the money to Rametsi and Mahlangu and signal
to
them by taking his cap off after having handed the money over to
the appellants. They would then close in and arrest them. Some
of the
Anti Corruption Unit members were stationed inside and others outside
the factory premises. Rametsi and Mahlangu arrived.
They were met by
Makhamba and entered the factory premises. Mahlangu left them inside
the factory premises and returned to the
vehicle they had arrived in.
He got into the vehicle and waited.
[7] In the factory premises Makhamba took out the money, counted it
and tendered to hand it to Rametsi who declined to take it
and
advised him to take it to Mahlangu who was still inside the vehicle.
Makhamba proceeded towards Mahlangu and handed the money
to him.
Makhamba then removed his cap giving a sign to the Anti-Corruption
Unit officers confirming that he had handed the money
over as
discussed. Inspector Mothudi and other officers immediately
approached Mahlangu. Mothudi produced his appointment card
to
identify himself but before he could arrest Mahlangu, Mahlangu sped
off. Inspector Mothudi fired a shot at the vehicle’s
tyres but
missed. As this was taking place Sergeant Robinson, also a member of
the Anti-Corruptioni Unit, proceeded to arrest Rametsi
who was still
on the factory premises. Robinson had strategically placed himself in
one of the offices where he had been observing
events as they
unfolded. Rametsi was later released. Mahlangu disappeared until he
was arrested about two years later.
[8] The appellants denied that they ever suggested to Makhamba that
he should pay them for having the case against him withdrawn.
According to them the purpose of their visit on the day in question
was to trace the firearm that had been used by Makhamba during
the
shooting incident Rametsi was invetigating. Rametsi testified that he
went straight to Makhamba when he arrived at his workplace.
He asked
Makhamba for the firearm whereupon Makhamba left. He thought Makhamba
was going to fetch the firearm. While waiting he
heard a gunshot. The
next thing that happened was that he was arrested by Robinson.
[9] Mahlangu testified that he was waiting in the vehicle when he
suddenly saw two people running towards him. One was carrying
a
fire-arm. The window of the vehicle was half open. The person with
the fire-arm pointed it at his neck and grabbed him by his
clothes.
The other person opened the door on the passenger side and tried to
enter the vehicle. His upper body was inside the vehicle
and he also
grabbed him. He says that he feared for his life and sped off. He
thought these unknown people were going to rob or
hijack him. Hence
he decided to flee. He said shots were fired at him but he escaped
with his life. He drove to Florida SAPS to
lay a charge of attempted
murder and attempted robbery. He proceeded to Lenasia to see Dr Khan
and informed him of this incident
and that he was shocked. He was
then put on a drip to calm him down. He was off sick for seven days,
returned to work and thereafter
did not report for duty for more than
a year until he was arrested.
[10] It is undisputed that the Anti-Corruptioni Unit officers,
Mothudi in particular, went looking for Mahlangu at his station,
Meadowlands, and at the Protea Magistrates’ Court where
Mahlangu was said to have gone to deliver a docket. Their efforts
were all in vain. In his testimony Mahlangu said that during the
period he was off sick he kept on visiting Meadowlands police
station
on a monthly basis but made no effort to contact the Anti-Corruptioni
Unit, notwithstanding the fact that he was aware
that they were
looking for him. I now turn to deal with the grounds of appeal.
Whether the State had proved the statutory requirements for the
contravention of s 1(1)(b)(i) and (ii) read with s 3 of the Act
:
[11] Section 1(1)(b)(i) and (ii) reads as follows:
‘
1 Prohibition on offer or
acceptance of benefits for commission of act in relation to certain
powers or duties . . .
(b) upon whom any power has been conferred or who has
been charged with any duty by virtue of any employment or the holding
of any
post or any relationship of agency or any law and who
corruptly receives or obtains or agrees to receive or attempt to
obtain any
benefit of whatever nature which is not legally due, from
any person, either for himself or for anyone else, with the intention
–
(i) that he should commit or omit to do any act in
relation to such power or duty, whether the giver or offeror of the
benefit has
the intention to influence the person upon whom such
power has been conferred or who has been charged with such duty, so
to act
or not; or
(ii) to be rewarded for having committed or omitted to
do any act constituting any excess of such power or any neglect of
such duty,
whether the giver or offeror of the benefit has the
intention to reward the person upon whom such power has been
conferred or who
has been charged with such duty, so to act or not,
shall be guilty of an offence.’
[12] The appellants contended that ‘[t]he power or duty to
institute a prosecution and to terminate such prosecution, either
by
withdrawing charges or by stopping a prosecution falls . . .
exclusively within the prerogative of the National Director of
Public
Prosecutions and those specifically appointed by the National
Director’. They argued further that Makhamba was not
charged
and that he would not be charged therefore they could not have
‘intended to withdraw a case or, for that matter,
to arrest
him.’
[13] The common cause evidence is that Mahlangu and Rametsi are
police officers who have the power to investigate a criminal
complaint.
They, therefore, have been charged with a duty to
investigate alleged criminal offences, in this case the shooting
incident involving
Makhamba. The allegation is that they demanded
money from Makhamba for them to withdraw the case. Makhamba had by
that time not
been charged with an offence. ‘Withdrawal of the
case’ could therefore only have been intended to mean and could
only
have been understood to mean ‘termination of the
investigation’. The termination of the case is an act ‘in
relation’
to a duty with which the appellants had been charged.
It follows that, if the evidence of the state is accepted, all the
statutory
requirements for a contravention of s 1(1)(b)(i) have been
proved.
The trial magistrate entered the arena and aligned himself with
the state
[14] The appellants contended that the trial magistrate had entered
the arena in an impermissible way and that he had aligned himself
with the sate against the appellants. In this regard the appellants
relied on the questions put by the trial magistrate to the
witness
Muvhango and to Mahlangu.
[15] Mr Muvhango is a senior police officer in the police force. He
testified that on 25 January 2001 he was on duty at the Meadowlands
Police Station and that the appellants were under his command.
Inspector Mothudi came to his offices and informed him that he had
arrested Rametsi on a corruption charge and that Mahlangu was in the
company of Rametsi at the time but that he had fled with the
State’s
money. Muvhango telephoned Mahlangu who told him that he was at the
Protea Court and was placing a case on the roll.
When asked whether
he was with Rametsi he did not give an answer. He did not tell
Muvhango what had happened at Makamba’s
workplace. According to
the police records Mahlangu was booked off sick on 25 January 2001,
resumed duties on 28 January 2001 until
6 February 2001 when he was
booked off sick again. From then onwards Mahlangu was absent for a
long period but Muvhango could find
no record of that. The magistrate
questioned Muvhango about the records and also about the action he
took, knowing that the anti
corruption unit was looking for Mahlangu.
In doing so the magistrate showed frustration at the fact that the
police were not able
to produce records showing when Mahlangu
returned to work. The magistrate also indicated that he was critical
about the action
taken by Muvhango in respect of the fact that the
Anti Corruption Unit was looking for Mahlangu.
[16] In my view the questioning by the magistrate could not have
given the impression that the magistrate had aligned himself with
the
state case against the appellants. His frustration with the police
had nothing to do with the question whether the appellants
were
guilty or not and could not have given the impression that he was
biased and that the appellants were not being given a fair
trial.
[17] The magistrate intervened during the prosecutor’s
cross-examination of Mahlangu much more than was necessary. At one
stage he got confused between the incident in question and another
incident mentioned by Mahlangu. He would have done much better
had he
rather concentrated on the answers given to the prosecutor than his
own questioning. In general the magistrate was asking
questions
clarifying the reason why Mahlangu was absent from work for almost
two years after the attempt to arrest him, why he
did not contact the
Anti Corruption Unit when he learnt that it was not an attempted
hijacking that he had fled from and why he
had to accompany Rametsi
when he went to see Makhamba. He showed some scepticism about
Mahlangu’s evidence that he merely
accompanied Rametsi as a
driver and at one stage he effectively cross-examined Mahlangu about
the alleged damage to his vehicle.
His questioning in this regard
occupies approximately one and a half pages of the record.
[18] I seriously considered whether the questioning by the magistrate
could have given the impression to a reasonable person that
the
magistrate was not impartial and that the appellants were not getting
a fair trial. I came to the conclusion that that was
not the case. In
this regard I refer to
S v Basson
2007(1) SACR 566 (CC) para
30 -31 where the Constitutional Court again stated that there is a
presumption in our law against partiality
of a judicial officer and
referred with approval to a statement by Cory J on behalf of the
Supreme Court of Canada to the effect
that the threshold for a
finding of real or perceived bias is high.
The attorney representing the first appellant was confused,
incompetent and ill-prepared to the extent of rendering the
appellant’s
trial unfair
[19] In this regard the appellants mainly relied on the fact that
Mahlangu’s attorney at the trial put different versions
to
witnesses. When it was pointed out to appellants’ counsel that
different versions could have been given to the attorney
by Mahlangu,
the point was not taken any further.
Whether the trial court disregarded the cautionary rules
applicable to single witnesses and to evidence of a trap
:
[20] The appellants contended that the trial court as well as the
court below disregarded the cautionary rules applicable to single
witnesses and traps. The trial court was further criticized for the
way it dealt with credibility and probability issues.
[21]
Section 208
of the
Criminal Procedure Act 51 of 1977
provides
that:
‘
An accused may be convicted of
any offence on the single evidence of any competent witness.’
The court can base its finding on the evidence of a single witness as
long as such evidence is substantially satisfactory in every
material
respect or if there is corroboration. The said corroboration need not
necessarily link the accused to the crime (See
S v Hlongwa
1991 (1) SACR 583
(A),
Stevens v S
[2005] 1 All SA 1
(SCA)
para 17 and
S v Artman
1968 (3) SA 339
(A) at 341A-B).
[22] Makhamba was a single witness in respect of the offer made to
him to withdraw the case against payment of R600 but his evidence
as
to events surrounding the handing over of the money was corroborated
in all material respects by Robinson, Mothudi and Motau
another
member of the Anti Corruption Unit. Corroboration is also to be found
in the improbability of the appellants’ version.
Rametsi and Mahlangu had been to see Makhamba more than once.
Rametsi’s explanation is that he was looking for the fire-arm
used in the shooting by Makhamba. Makhamba had informed Rametsi that
the fire-arm was no longer available because he had been robbed
of
it. Rametsi and Mahlangu had no business to visit Makhamba again as
the investigation of the shooting incident should have been
closed.
All the necessary potential witnesses’ statements had been
obtained. The state’s version is that Rametsi and
Mahlangu came
to Makhamba on 25 January 2001 after they had agreed that the R600,
which they demanded, would be available on that
day. The appellants’
version that they came to look for the fire-arm is untenable and was
found to be a lie and rejected.
[23] The magistrate may not have pertinently used the phrases
‘cautionary rule’; and ‘evidence of a trap’
but did caution himself that ‘[t]he court must consider the
evidence in it’s totality. The court must consider the
probabilities and improbabilities of both the state case as well as
the defence case. The court must consider the credibility of
all
witnesses. In addition thereto the court must also consider whether
the state has succeeded in proving the guilt of each of
the two
accused separately and (inaudible) from each other’.
It is, therefore, disingenuous to argue that the trial court
disregarded the cautionary rules applicable to single witnesses and
traps. The magistrate considered the conspectus of the evidence and
weighed the pros and cons and made a judiciously considered
judgment.
[24] Certain discrepancies in the evidence of Makhamba were
highlighted but these were not material discrepancies considering
also that the incident occurred about 7 years before the trial. The
trial court was satisfied, correctly so, that the state witnesses
corroborated each other in all material aspects. The trial court
found the explanation by both appellants to be improbable and
correctly rejected it as false. ‘An appellate court should not
seek anxiously to discover reasons adverse to the conclusions
of the
trial Judge. No judgment can ever be perfect and all-embracing, and
it does not necessarily follow that, because something
has not been
mentioned, therefore it has not been considered’. (See
R v
Dhlumayo
1948 (2) SA 677(A)
at 678) I have considered the
conspectus of the evidence and the findings of the magistrate and the
court below, I am not satisfied
that the appellants succeeded in
showing this court that the verdict of the trial court and the court
below were wrong. The appeal
against conviction cannot stand.
Sentence
[25] I now turn to the issue of the sentence. It is trite that
corruption is a serious offence especially when committed by police
officers. These are the people appointed to protect society and
enforce the law. Counsel for the appellants did not refer to a
specific misdirection by the trial court which would persuade us to
interfere with the sentence. He pointed out that the administration
of justice could not have suffered any prejudice by the actions of
the appellants. The trial court stated, correctly, that the
fact that
the amount paid was relatively small should not be over-emphasized.
[26] In my judgment, the sentence imposed is not unreasonable.
Makhamba was persistently asked to pay up, the appellants persist
with a baseless denial and do not display any remorse. The money was
not recovered because Mahlangu fled with it. Corruption has
plagued
the moral fibre of our society to an extent that to some it is a way
of life. There is a very loud outcry from all corners
of society
against corruption which nowadays seems fashionable. Some even go as
far as stating that corruption is rendering the
state dysfunctional.
It is the courts that must implement the penalties imposed by the
legislature. It is also the courts that
must ensure that justice is
not only done but also seen to be done. The trial court considered
all the aggravating and mitigating
factors and came to the conclusion
that an effective imprisonment of 4 years was appropriate. In the
circumstances of this case,
I agree.
[27] The appeal against both conviction and sentence is dismissed.
_________________
J SHONGWE
Judge of Appeal
APPEARANCES:
For
Appellants:
J F Schaefer
Instructed
by:
David H
Botha, Du Plessis & Kruger Inc
Johannesburg
Symington
& De Kok
Bloemfontein
For
Respondent: N Naidoo
Instructed
by:
The
Director of Public Prosecutions
Johannesburg
The
Director of Public Prosecutions
Bloemfontein