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[2022] ZAECMKHC 49
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Takane v S (CA&R174/2021) [2022] ZAECMKHC 49 (10 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
No: CA&R174/2021
In
the matter between:
THOZAMA
TAKANE
Appellant
and
THE
STATE
Respondent
APPEAL
JUDGMENT
BESHE
J:
[1]
The appellant, a public
prosecutor who was practising as such at the Kariega Magistrates’
Court, was convicted of one count of corruption and sentenced to
eight (8) years imprisonment. He is now appealing against both
the
conviction and the sentence. Leave to do so having been granted by
court
a quo
, being the Regional Court, Gqebera.
[2]
The decision of the court
a
quo
to convict the appellant is assailed mainly on the basis that the
court erred by accepting the evidence of the state even though
the
state witnesses had contradicted each other. However, in argument
before us, appellant’s counsel conceded that the contradictions
that were highlighted were not on material aspects. She conceded that
they were not of such a nature that they warranted the rejection
of
the evidence that was adduced from the state witnesses,
in
toto
.
She conceded that the conviction was in order and therefore justified
in this regard. This concession was properly made in our
view. Even
though not listed as an issue to be decided in appellant’s
practice note, in the heads of argument, a submission
is made that
the court should have excluded the evidence obtained through the use
of
Section
252 A of the Criminal Procedure Act.
[1]
This on the basis that the process was used to create an opportunity
for the appellant to commit an offence. Once again in this
regard,
correctly so in our view, a concession was made that in making this
submission sight was lost of the fact that by the time
the police
officers entered the fight, the appellant had already agreed to
accept gratification from
Mr
Bokwe
in consideration for the withdrawal of the charge against him and his
co-accused.
[3]
The upshot of this is that the
appeal against the conviction falls to be dismissed. This
then leaves
us with the appeal against sentence. The grounds upon which the
sentence imposed by the trial court is assailed are
inter alia
:
That
the court exercised its discretion improperly resulting in the
sentence imposed being disturbingly inappropriate;
The
court placed undue emphasis on deterrence and as such sacrificed the
appellant on the altar of deterrence;
The
court failed to give adequate weight to other relevant considerations
such as his personal circumstances as well as the aspect
of
rehabilitation and thus sentenced the appellant to an unduly severe
sentence.
[4]
The circumstances that gave rise
to the appellant’s conviction and sentencing can
briefly be
summarised as follows:
The
appellant was a public prosecutor at the Kariega Magistrates’
Court during April 2018. A criminal case was enrolled against
Messrs
Bokwe
and
Crosby
in the court where appellant was the
prosecutor. On the 23 April 2018 he reached an agreement with
Bokwe
that he (appellant) will withdraw the charge against
Bokwe
and
his co-accused in return for a gratification of R1 500.00.
Indeed, the case against the two men was withdrawn on the 23
April
2018. Unbeknown to the appellant,
Mr Bokwe
reported the matter
of his being expected to pay a sum of R1 500.00 by the appellant
as a consideration or gratification for
the withdrawal of the charges
against him and his co-accused.
[5]
The police set a sting operation
in motion. This involved providing
Mr Bokwe
with marked notes
he was to hand over to the appellant and a recording device.
Mr
Bokwe
handed the R1 500.00 comprising of marked notes to the
appellant on a side street not far from the court building on the 26
April 2018. The police officers also filmed appellant and
Mr
Bokwe’s
movements. After the handing over of the R1 500.00,
appellant rushed back to court and placed the money under the lectern
or podium from which he conducted prosecutions.
[6]
The appellant was consequently
convicted of contravening
Section 9 of Act 12 of 2004
-
The
Prevention and Combating of Corrupt Activities Act
, an offence
referred to under Part 2 of the Act.
Section 26
of the
abovementioned Act provides that “Any person who is convicted
of an offence referred to in Part 1, 2, 3 or 4 or
Section 18 of
Chapter 2
is liable –
(i)
… … …
(ii)
in the case of a sentence to be imposed by a regional court, to a
fine or to imprisonment for a period not exceeding 18 years.
[7]
It is trite that in regard to
sentence an appeal court will only interfere if the trial
court
misdirected itself materially. See in this regard
S
v Malgas
[2]
where this principle was succinctly enunciated as follows:
“
A
court exercising appellate jurisdiction cannot, in the absence of a
material misdirection by the trial court, approach on the
question of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers
it. To do so
would be to usurp the sentencing discretion of the trial court.”
The
court also went on to say “However, even in the absence of
material misdirection, an appellate court may yet be justified
in
interfering with the sentence imposed by the trial court. It may do
so when the disparity between the sentence of the trial
court and the
sentence of the appellate court would have imposed had it been the
trial court is so marked that it can properly
be described as
“shocking”, “startling” or disturbingly
inappropriate”. See also
S
v Romer
[3]
in this regard, where another ground for interference with sentence
on appeal was said to be that the sentence is such that no
reasonable
court would have imposed it.
[8]
The court
a quo
was alive
to the need for the sentence to strike a balance of factors to be
considered in sentencing. Those being the crime, the
offender and the
needs of the society. As well as the need to blend the sentence with
mercy. According to the Magistrate, mercy
is a sign of compassion not
weakness and is a means of addressing both the offender and the
offence.
[9]
There can be no doubt that the
accused was convicted of a very serious offence. The effect
of
corruption in our society is amply described in two decided cases to
which we were directed by appellant’s counsel
albeit
for the purpose of comparison between the sentences imposed in those
cases
vis-a-vis
the facts that led to appellant’s conviction
in
casu.
In
S
v Kgantsi
[4]
where the Judge in sentencing the accused quoted at length from
S
v Shaik & Others
[5]
regarding what was said about the seriousness of the crime of
corruption. The following was stated in the
Shaik
matter:
“
[222]
The Constitutional Court in
South
African Association of Personal Injury Lawyers v Heath and Others
[2000] ZACC 22
;
2001 (1) SA 883
(CC)
(2001 (1) BCLR 77)
at paragraph
[4]
said the
following:
‘
Corruption and
maladministration are inconsistent with the rule of law and the
fundamental values of our Constitution. They undermine
the
constitutional commitment to human dignity, the achievement of
equality and the advancement of human rights and freedoms. They
are
the antithesis of the open, accountable, democratic government
required by the Constitution. If allowed to go unchecked and
unpunished they will pose a serious threat to our democratic State.’
[223] The seriousness of
the offence of corruption cannot be overemphasised. It offends
against the rule of law and the principles
of good governance. It
lowers the moral tone of a nation and negatively affects development
and the promotion of human rights.
As a country we have travelled a
long and tortuous road to achieve democracy. Corruption threatens our
constitutional order. We
must make every effort to ensure that
corruption with its putrefying effects is halted. Courts must send
out an unequivocal message
that corruption will not be tolerated and
that punishment will be appropriately severe. In our view, the trial
judge was correct
not only in viewing the offence of corruption as
serious, but also in describing it as follows:
‘
It is plainly a
pervasive and insidious evil, and the interests of a democratic
people and their government require at least its
rigorous
suppression, even if total eradication is something of a dream.’
It is thus not an
exaggeration to say that corruption of the kind in question eats away
at the very fabric of our society and is
the scourge of modern
democracies. However, each case depends on its own facts and the
personal circumstances and interests of
the accused must always be
balanced against the seriousness of the offence and societal
interests in accordance with well-established
sentencing principles.”
Likewise
in
Phillips
v S
[6]
the court quoted remarks that were made in
S
v Mahlangu
[7]
with approval. This is what the court in
Mahlangu
stated:
“
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 in not only done, but also seen
to be done.”
I
cannot agree more with the sentiments expressed in these cases. In my
view, the Magistrate in the court
a quo
gave due consideration
to all the relevant considerations without overemphasising the
seriousness of the offence or deterrence.
He gave due regard to the
purposes that a sentence should serve, which includes deterring those
in appellant’s position who
are tempted to engage in corrupt
activities.
[10]
For all the reasons stated above, I am not
persuaded that there is any basis to interfere with the sentence
imposed in the court
a quo
. I am not persuaded that the
sentence is vitiated by a misdirection resulting from the court
a
quo
having exercised its discretion unreasonably. The sentence in
my view is not disturbingly inappropriate.
[11]
Accordingly, the appeal against both the
conviction and sentence is dismissed.
N
G BESHE
JUDGE
OF THE HIGH COURT
RUGUNANAN
J
I
agree.
M
S RUGUNANAN
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Appellant :
Adv: H Bakker
Instructed
by
:
GEORGE MALGAS ATTORNEYS
103
Kamesh Street
Rosedale
KARIEGA
Email:
hannelie@bakkerandbakker.com
For
the Respondent : Adv:
L Keech
Instructed
by
:
DIRECTOR OF PUBLIC PROSECUTIONS
High
Street
GRAHAMSTOWN
Ref.:
Ms Van Heerden
Tel.:
046 – 602 3000
Date
Heard
:
2 March 2022
Date
Stood Down :
2 March 2022
Date
Delivered
: 10 August 2022
[1]
Act
51 of 1977. This Section deals with the authority to make use of
traps and undercover operations and admissibility of evidence
so
obtained.
[2]
2001
(1) SACR 469
SCA at 478 (d)–(f).
[3]
2011
(2) SACR 153
at 159 [22].
[4]
[2007] JOL 20705
(W) at 117.
[5]
[2006] ZASCA 105
;
2007 (1) SACR 247
SCA at 319 e–j.
[6]
[2016] JOL 37D1D
SCA.
[7]
2011 (2) SACR 164
SCA at 172 [26] f – g.