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[2022] ZALMPPHC 47
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Ramphelo v S (A03/2020) [2022] ZALMPPHC 47; 2022 (2) SACR 560 (LP) (1 September 2022)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: A03/2020
REPORTABLE: YES/NO
OF INTEREST TO THE
OTHER JUGDES: YES/NO
REVISED.
In
the matter between:
PORTIA
MOTSATSI RAMPHELO
APPELLANT
And
THE
STATE
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The appellant and her co-worker (accused 1) were charged and
convicted of contravening the provisions
of section 4(1) of the
Prevention
and Combating of
Corrupt
Activities Act
[1]
(PCCA) to wit corruption. It is alleged that the appellant and
accused 1 whilst on duty as traffic officers received a gratification
of R150.00 from one Moleketsi Paul Mugai for their own benefit in an
illegal and dishonest way. The respondent had relied on the
doctrine
of common purpose in charging the appellant and accused 1 jointly.
The appellant and accused 1 were found guilty as charged.
The
appellant was sentenced to two years’ direct imprisonment
without the option of a fine whilst accused 1 was sentenced
to four
years’ imprisonment of which two years was suspended for a
period of four years’. The appellant is appealing
against both
conviction and sentence with the leave of the court
a
quo
.
[2]
The appellant had pleaded not guilty to the charge during trial in
the court
a quo.
The respondent had called four witnesses,
whilst the appellant had closed her case without leading any
evidence. The respondent’s
first witness was Timothy Seabi. He
testified that he is a member of the South African Police Services
(SAPS), and lieutenant colonel
by rank. That during the beginning of
2017 their office received several complaints from the members of the
community, officials
from the Department of Transport, as well as
officials from municipal offices that police officers as well as
traffic officers
posted along the different national, provincial and
municipal roads within the Limpopo Province were demanding
gratification from
motorists who were found to have faults or
contravened some rules and regulations of the road.
[3]
They decided to form an operation with the codename siyabangena in
order to weed out that practice.
His role in that operation was that
of an operational manager. He was tasked to coordinate the
operational team, as well as to
arrange all the logistics which were
needed when the operation was taking place. He had to arrange for
vehicles, audio and video
equipment, as well as money. That operation
consisted of handlers, investigators and agents. In the matter that
led to the arrest
of the appellant, the investigating officer was
captain Mungani, and the agent was Paul Mugai. Paul Mugai was an
official from
the Department of Roads and Traffic Management Centre
stationed in Gauteng. His role in the operation was to go out and
meet with
the targets, communicate with them and only adhere to
whatever demands made by the targets.
[4]
The witness further stated that on 13
th
December 2017 he
was present when the appellant and accused 1 were arrested. The
appellant and accused 1 were arrested at Tzaneen
provincial traffic
department. Before their arrest Paul was the one who identified the
appellant and accused 1 as the people who
had demanded gratification
from him. The witness was cross examined by counsel for both the
appellant and accused 1.
[5]
The second witness to testify for the respondent was Mashudu Felicity
Mungani. She testified that she
is a member of the SAPS and captain
by rank. She was part of the operation siyabangena. Her role in that
operation was that of
an investigating officer. Her duties were to
the administer the dockets, collection of evidence, and giving tasks
to agents.
[6]
That she is the one who had tasked Paul to go out and conduct a trap
along the Tzaneen area. She had
instructed Paul that if he was
stopped by police officers or traffic officers for any transgression
of the Road Traffic Act, and
those officers demand something from
him, he must just give them what they will be requesting. She gave
Paul R500.00 which was
State money, and also requested lieutenant
colonel Seabi to search Paul to make sure that when he goes to do the
operation, his
own money does not mix with the money of the
operation.
[7]
Paul went out to do the operation, and later came back to report to
her that he had made a transaction
along the R71 road in Tzaneen with
two traffic officers. That he had paid the two officers R150.00.
Thereafter Paul handed in his
written statement and also a memory
card. The memory card had been put into the gadget which was secretly
recording Paul and the
two officers when the transaction was
concluded. The witness took the memory card, registered it in the SAP
13, and thereafter
sealed it inside the forensic bag. She kept that
evidence in her possession in a locked locker until the end of the
operation.
She was the only one who was keeping the keys for the
locker, and was the only official who was having access to that
locker.
[8]
At the end of the operation she handed the forensic bag to captain
Selepe. Later she received a forensic
bag from captain Selepe which
contained the memory card, old forensic bag that she had previously
sealed, and a DVD and CD. She
kept the forensic bag. She was present
when the appellant and accused 1 were arrested. The appellant and
accused 1 were pointed
out by Paul as the people who took
gratification money from him. The money that was paid as
gratification was never received back.
The witness was cross
examined.
[9]
The respondent called Petrus Selepe as its third witness. He
testified that he is a member of the SAPS
and captain by rank and is
attached to the Directorate of Priority Crime Investigations under
the Priority Management Centre in
Polokwane. His duties entails
attending crime scenes, the search and seizure of all digital data
residence devices, acquisition
and analysis of electronic data, the
extraction of data from magnetic cards readers, the interrogation and
extraction of data from
mobile devices.
[10]
That on 7
th
March 2018 during the execution of his duties
he received a service application from investigating officer captain
Mungani requesting
for the download of SD-memory card which was in a
sealed forensic bag. He copied the data from that card and put them
into a DVD.
He had downloaded the memory card from his computer, and
after that he gave the DVD to captain Mungani in a new sealed
forensic
bag. The contents of that DVD was in relation to traffic
officers. The witness was cross examined.
[11]
The respondent’s fourth witness was Paul Mugai. He testified
that he is an investigator attached to
the national anti-corruption
unit which falls under the Road Traffic Management Corporation. That
his duties entails overseeing
and supervising all his subordinates on
a daily basis, as well as curbing fraud and corruption.
[12]
He was part of the operation siyabangena which was conducted in
Limpopo Province. In that operation he acted
as an agent. In that
operation the investigating officer was giving him tasks on a daily
basis. He was trained on how to use audio
and video recordings before
he was involved in that operation. When they were trained, they were
told not to entice the culprits,
but that the offer must come from
the culprits.
[13]
That on 31
st
May 2017 he was posted to work in the
district of Tzaneen as part of the operation doing entrapments.
Before he was posted to do
duty on that date, the investigating
officer Mungani read to him the rules and regulations of the
operation. Thereafter colonel
Seabi searched him to check whether he
was not in possession of his own money. After he was searched, he was
given R500.00 to be
used for entrapment. A device which could not be
easily identifiable was also planted on his body.
[14]
The task given to him was to disobey or transgress any traffic laws
whilst driving on the road when he could
be seen by the members of
the SAPS or traffic officers. That should he be stopped and issued
with a traffic fine, he was supposed
to accept that. Further that
should those officers demand gratification from him, he should pay
that. He was given their official
vehicle which was unmarked. He took
the Tzaneen – Phalaborwa road. As he was driving on that road,
he overtook another vehicle
on the barrier line, and he was
immediately stopped by a male traffic officer who was in full uniform
(accused 1). Accused 1 had
a name tag written Makhurupetsa, and was
with the appellant who was sitting next to him. The appellant was
also in full uniform,
but he could not see her name tag.
[15]
The witness pulled off the road, switched on the device on his body.
Accused 1 told the witness the reason
why he was being stopped, and
further that he was going to issue him with a traffic fine. By then
the appellant was with another
motorist. Accused 1 told the witness
that he was going to issue him with a fine which will not be more
than R1000.00. The witness
pleaded with accused 1 not to issue him
with a fine, but rather give him a warning.
[16]
As the witness was busy talking to accused 1, the appellant joined
them in their conversation. On arrival
of the appellant, the witness
asked the appellant to talk to accused 1 not to issue him with a
ticket. The appellant asked the
witness why he was in a hurry, and
the witness told the appellant that he was not in a hurry. The
witness told the appellant that
he overtook a vehicle that had given
him a right of way, and when he was in the process of overtaking,
that vehicle saw traffic
officers and went back to the road. That led
to the witness overtaking that vehicle on the barrier line. That was
the explanation
which the witness had also given to accused 1.
[17]
The appellant stated that her book was almost full as a result of her
issuing traffic fines to other motorists.
Accused 1 handed in the
witness driver’s licence to the appellant, and asked the
witness what he should do with him. When
accused 1 asked the witness
that question, the appellant was standing not more than two metres
from them. The witness pleaded for
mercy, and accused 1 told the
witness to give him or them cool drink. The witness stated that his
understanding of accused 1 asking
for a cool drink was that he was
seeking for a gratification. The witness told accused 1 that he was
having R150.00 for petrol,
and accused 1 told the witness that it was
sufficient. The witness asked accused 1 whether he could hand over
that money whilst
other motorists were passing and accused 1 said
that there was no problem.
[18]
The witness then handed over the R150.00 to accused 1. When the
witness paid accused 1 R150.00, the appellant
was still within the 2
metres range, and could see what was happening. After that the
appellant told the witness that since he
was going far, he can go,
and she handed him his driver’s licence back. Before the
witness could drive off, accused 1 told
him not to overtake on the
barrier line. Both accused 1 and the appellant did not issue the
witness with a traffic fine for the
offence that they have stopped
him for. That the R150.00 was paid from the R500.00 the witness was
given by captain Mungani.
[19]
The witness drove away and on arrival at their offices he tested the
recordings. After that on the same date
of the incident, the witness
handed the memory card to the investigating officer captain Mungani,
and also made an affidavit to
that effect. That prior to the incident
the witness did not know accused 1 and the appellant.
[20]
The witness was cross examined and he conceded that he could not be
seen on the video footage, as he was
the one who was operating the
device. The witness conceded that on the video footage the handing in
of the money cannot be seen,
but that voices could be heard when
accused 1 accepted the money. The witness conceded that on the video
footage the role that
the appellant had played was not shown, but
that he had talked to the appellant to talk to accused 1, and she
asked him where he
was rushing to. The witness stated that the
appellant was an accomplice as the witness had handed his driver’s
licence to
accused 1 who in turn handed it to the appellant.
[21]
That concluded the evidence of the respondent and it closed its case.
Accused 1 and the appellant applied
for a discharge in terms of
section 174 of the
Criminal
Procure Act
[2]
(the Act) which application was refused. Thereafter both accused 1
and the appellant closed their case without leading any evidence.
[22]
The appellant and accused 1 have been charged
together in terms of the doctrine of common purpose. It is
not in
dispute that on the date of the incident the appellant was on
official duties as a traffic officer. On that date the appellant
was
therefore doing her duties as a public officer. There are
overwhelming evidence that Paul the agent, had paid accused 1 R150.00
in order for accused 1 not to issue Paul with a traffic fine. During
the hearing of the appeal, counsel for the appellant had correctly
conceded that Paul had paid accused 1 R150.00. The issue to be
determined is whether the respondent had succeeded in proving that
appellant acted in common purpose with accused 1.
[23]
Section 4(1) of the PCCA provides as follows:
“
(1)
Any –
(a) public officer who,
directly or indirectly, accepts or agrees or offers to accept any
gratification from any other person, whether
for the benefit of
himself or herself or for the benefit of another person; or
(b) person who directly
or indirectly, gives or agrees or offers to give any gratification to
a public officer, whether for the
benefit of that public officer or
for the benefit of another person, in order to act, personally or by
influencing another person
so to act, in a manner –
(i)
that amount to the –
(aa) illegal, dishonest,
unauthorised, incomplete, or biased; or
(bb) misuse or selling of
information or material acquired in the course of the exercise,
carrying out or performance of any powers,
duties or functions
arising out of a constitutional, statutory, contractual or any other
legal obligation;
(ii)
that amounts to –
(aa) abuse of
a position of authority;
(bb) a breach of
trust; or
(cc) the violation
of a legal duty or a set of rules;
(iii)
designed to achieve an unjustified result; or
(iv) that
amounts to any other unauthorised or improper inducement to do or not
to do anything, is guilty of the offence
of corrupt activities
relating to public officers.”
[24]
In
S
v Selebi
[3]
Mthiyane DP said:
“
The
essential elements of the general crime of corruption committed by
the recipient are the following: (a) the acceptance; (b)
of a
gratification (payment or some other benefit); (c) in order to act in
a certain way (the inducement); (d) unlawfulness; and
(e) intention.
Although ‘unlawfulness’ is not expressly mentioned in the
definition of the crime, commentators are
of the view that it must
nevertheless be read into it. It connotes that the act (in this case
the acceptance of payment) should
be unjustified as this is a
requirement of every crime. In general, ‘unlawfulness’
means ‘contrary to the good
morals or the legal convictions of
society’. The same applies to ‘intention’.
Therefore, it has to be considered
even though it is not specifically
mentioned.”
[25]
In the case at hand the gratification was accepted by accused 1. Both
accused 1 and the appellant
had seen Paul transgressing a road
traffic offence which they should have issued him with a spot fine
ticket. Instead of issuing
Paul with a spot fine, he was made to pay
R150.00 in an unlawful way to accused 1 with the appellant seeing
what was happening.
The appellant was within 2 metres from Paul and
accused1. The first person to attend Paul after he was stopped was
accused 1, whilst
the appellant was still busy with another motorist.
After the appellant finished attending that motorist, she joined
accused 1
and Paul wherein Paul pleaded with the appellant to talk to
accused 1 not to issue him with a ticket.
[26]
The appellant was in possession of the book for issuing spot fine
tickets. Accused 1 gave the
appellant Paul’s driver’s
licence and that is when the appellant said her book was almost full.
It was not full but
almost full. It is unfortunate both accused 1 and
the appellant did not testify to admit or dispute whether accused 1
gave the
appellant Paul’s driver’s licence. That version
that accused 1 gave the appellant Paul’s driver’s licence
remained unchallenged. The only reasonable inference to be drawn was
that Paul’s licence was given to the appellant for her
to issue
Paul with a spot fine ticket as she was the one in possession of the
book for issuing spot fines. The appellant and accused
1 were now
directly involved in dealing with the transgression committed by
Paul.
[27]
The negotiations of payment of gratification was
between accused 1 and Paul. However, the appellant was
in possession
of Paul driver’s licence, and there was nothing preventing her
from issuing Paul with a spot fine ticket since
Paul had transgressed
a road traffic offence. The appellant returned Paul’s driver’s
licence after Paul had paid accused
1 a gratification of R150.00
without issuing Paul with a spot fine ticket. The appellant did not
testify to explain the circumstances
that prevented her from issuing
the appellant with a spot ticket fine, and also why she returned
Paul’s driver’s licence
only after Paul had paid
gratification to accused 1.
[28]
In
S
v Boesak
[4]
Langa DP said:
“
The
right to remain silent has application at different stages of a
criminal prosecution. An arrested person is entitled to remain
silent
and may not be compelled to make any confession or admission that
could be used in evidence against that person. It arises
again at the
trial stage when an accused has the right to be presumed innocent, to
remain silent, and not to testify during the
proceedings. The fact
that an accused person is under no obligation to testify does not
mean that there are no consequences attaching
to a decision to remain
silent during the trial. If there is evidence calling for an answer,
and an accused person chooses to remain
silent in the face of such
evidence, a court may well be entitled to conclude that the evidence
is sufficient in the absence of
an explanation to prove the guilt of
the accused. Whether such a conclusion is justified will depend on
the weight of the evidence.”
[29]
There are overwhelming evidence that the appellant
was present at a distance of less than two metres when
accused 1
demanded a gratification from Paul. At that distance the reasonable
inference to be drawn is that the appellant could
hear the
conversation between accused 1 and Paul. The appellant was in
possession of Paul’s driver’s licence and was
aware that
Paul has committed a traffic offence which a spot fine should be
issued. The appellant was in possession of a spot fine
book and was
in a position to have issued Paul with the spot fine ticket, but did
not do so. Instead she returned the driver’s
licence back to
Paul after payment of R150.00 gratification to accused 1 by Paul. All
these point to an inference to be drawn that
the appellant was
working together with accused 1 in illegally demanding gratification
from Paul. There were evidence calling for
an answer from the
appellant but she had failed to do so. The only inference to be drawn
is that she did not have an answer for
that.
[30]
It is clear that there was a common understanding between the
appellant and accused 1, as the
appellant handed back the driver’s
licence back to Paul after payment of R150.00. She did not bring it
to the attention of
accused 1 that what he was doing was wrong and
she was not going to be part of it. Instead she told Paul that since
he was going
far he can go, and this proves that the appellant was in
complicit with what accused 1 was doing. Paul was released to go as
he
had paid what the appellant and accused 1 were looking for.
[31]
In
S
v Thebus
[5]
Moseneke J said:
“
If
the prosecution relies on common purpose, it must prove beyond
reasonable doubt that each accused had the requisite mens rea
concerning the unlawful outcome at the time the offence was
committed. That means he or she must have intended that criminal
result
or must have foreseen the possibility of the criminal result
ensuing and nonetheless actively associated himself or herself,
reckless
as to whether the result was to ensue.”
[32]
The appellant was present at the scene, and could
hear what the conversation was all about between accused
1 and Paul.
She actively associated herself by taking Paul’s driver’s
licence and failing to issue Paul with a spot
fine ticket when she
was in a position to do so. By giving Paul his driver’s licence
back only after payment of the gratification,
without issuing him
with the spot fine ticket proves that the appellant and accused 1
were sharing the common purpose. The prosecution
has therefore proved
beyond reasonable doubt that accused 1 and the appellant were acting
collectively and sharing common purpose.
In my view, the appellant
has been correctly convicted of the charge she was facing, and the
appeal on conviction stands to fail.
[33]
Turning to sentence, it is trite that sentencing
is the prerogative of the trial court, and should not lightly
be
interfered with. An appeal in which the interference with sentence
will be justified is when it is found that the trial court
has
misdirected itself in some respect or if the sentence imposed was
disturbingly disproportionate that no reasonable court would
have
imposed it. The test is not whether the trial court was wrong, but
whether it exercised its discretion properly. (See
S
v Romer
[6]
).
[34]
In terms of section 26 of the PCCA a magistrate court is empowered to
sentence the appellant
to fine or imprisonment not exceeding five
years’ imprisonment. The court
a quo
took into
consideration the appellant’s personal circumstances, that she
was a primary caregiver of her three minor children
aged 12, 8 and 6,
and also that the appellant is a single mother and a breadwinner. The
court
a quo
dealt at length with section 28(1) and (2) of the
Constitution relating to the minor children. The court
a quo
also dealt at length with recommendations of the probation officer
and also why direct imprisonment was an appropriate sentence
in this
matter.
[35]
The appellant has been employed as a law
enforcement officer, and as such has been entrusted in maintaining
law and order on the road in order to reduce the high rate of
accidents that occurs on the roads a daily basis, which causes a
huge
burden to the State resources, and also that road users obey to the
rules of the road. If the law enforcement officers are
also involved
in corrupt activities the war of reducing accidents on the roads, and
also making road users to obey the rules of
the road will never be
won. The offence which the appellant had committed had elements of
dishonesty, and as a law enforcement
officer, that will not be
measured by the value of the gratification given to them. Dishonesty
remain dishonesty and value of gratification
received will not make
it less dishonest. A high degree of professionalism, morals and
honesty is expected from the law enforcement
officers. If they are
left to do as the wish, the society at large will lose confidence in
the officers who are supposed to protect
road users from those who
break traffic laws on a daily basis.
[36]
The court
a quo
had sentenced accused 1 to
four years’ imprisonment, whilst the appellant was sentenced to
two years’ imprisonment.
That shows that the court
a quo
applied its mind properly in sentencing the appellant and accused 1,
and there is no reason to fault it on that approach. The sentence
imposed on the appellant is appropriate to deter those who aspired to
do what the appellant did. This court does not find any misdirection
on the part of the court
a quo
in sentencing the appellant.
The sentence imposed on the appellant is also not disturbingly
disproportionate with the offence committed
by the appellant. The
appeal on sentence also stands to fail.
[37]
In the result I make the following order:
37.1 The appeal on both
conviction and sentence is dismissed.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION,
POLOKWANE
I AGREE
NAUDÉ -
ODENDAAL J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES:
Counsel for the
appellant
: Adv UB Makuya
with Adv R Resenga
Instructed
by
: B Shirinda Inc
Counsel for the
respondent
: Adv SV Ngobeni
Instructed
by
: DPP Polokwane
Date
heard
: 26
th
August 2022
Electronically
circulated on
: 1
st
September 2022
[1]
12 of 2004
[2]
51 of 1977
[3]
2012 (1) SACR 209
(SCA) at para 8
[4]
[2000] ZACC 25
;
2001 (1) SA 912
(CC) at para 24
[5]
[2003] ZACC 12
;
2003 (6) SA 505
(CC) at 532H-I
[6]
2011 (2) SACR 153
(SCA) at paras 22 and 23