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[2020] ZALMPPHC 16
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Motau v S (A02/2019, SH 01/2016) [2020] ZALMPPHC 16 (23 April 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
Appeal
No. A02/2019
Bela
Bela SH 01/2016
23/4/2020
FANCY
JACOB MOTAU
V
THE
STATE
JUDGMENT
MULLER
J:
[1]
The appellant was convicted in the regional court of-
(a) contravention
of section 3(a) of The Prevention and Combatting of Corrupt
Activities Act;
[1]
(b) fraud; and
(c)
contravention of section 68(1) of the South African Police Services
Act
[2]
,
- impersonating a police officer.
[2]
He was sentenced to-
(a)
12 years imprisonment on count 1,
(b)
5 years imprisonment on count 2, and
(c)
1 year imprisonment on count 3. It was ordered that the sentences on
count
2 and 3 run concurrently.
[3]
An application for leave to appeal was refused by the regional court
magistrate.
Leave to appeal against the conviction on count 1 was
granted on petition to the Judge President. Leave to appeal against
the convictions
and the sentences imposed in respect of count 2 and 3
was refused.
[4]
To understand the background to both count 1 and count 2, it will be
necessary
to refer briefly to the allegations in respect of counts 2
and 3. In respect of count 2, it was alleged that the appellant
defrauded,
the complainan,t GJL Human by misrepresenting to him:
(a) that the appellant is a member
of the SA Police Service and the investigating officer of case
dockets Bela Bela
CAS 250/4/13 and CAS 475/8/13.
(b) that said dockets were
allocated to him for investigation after the previous investigating
officer had gone on pension;
(c) that appellant as such
was entitled to submit a statement to the control prosecutor
supported by his commanding
officer as motivation for the final
withdrawal of the said dockets.
[5]
The appellant by means of the misrepresentation induced the said
Human to his prejudice
or potential prejudice to pay him R25 000 cash
and by means of bottles of liquor whereas in truth the appellant
knew: -
(a) that he is not a member of the SA
Police Service;
(b) that he was not the investigating
officer of the two dockets and
(c) that he is unauthorised or unable to
submit a statement in relation to the dockets to the control
prosecutor to withdraw
the charges as the charges had already been
withdrawn and the dockets filed.
[6]
The appellant was convicted on count 2 on the basis that he
(a) was not a police officer;
(b) was not the investigating
officer of the two case dockets; and
(c) was unauthorised to
perform any investigation or to cause the control prosecutor to
withdraw the charges.
[7]
The conviction on count 3 is based upon the acceptance of the fact
that
the appellant was not a police officer and that he unlawfully
pretended to Human to be a member of the SA Police Service.
[8]
The question that arises in this appeal is whether the appellant is
guilty
of corruption on the basis of the proven facts which led to
his conviction that he unlawfully impersonated a policeman on the one
hand, and that he defrauded Human by falsely giving out to him that
he is the investigating officer in two dockets and in terms
whereof
he is able to submit a statement to his commanding officer and the
control prosecutor to withdraw the charges that he is
investigating
against Human for gratification, on the other.
[9]
The purpose of the corruption charge was to bring to book a corrupt
police
official. The state, no doubt, is able to formulate as many
charges that the facts and the law allows. The State is entitled to
charge the appellant of any offence covered by the facts. As can be
gleaned from the convictions on count 2 and 3 the same facts
may
constitute two crimes.
[10]
It was, at common law, an offence to offer or give a state official
an unauthorized consideration
in respect of such official doing or
abstaining from doing or having done or abstain from any act and
exercise of his official
duties. The important object of the common
law offence of bribery was to protect the State. It was held in
R
v Chorle
[3]
that:
"The
law of bribery is designed to protect the State against those who by
gifts tempt its officials to use their opportunities
as such to
further private interests in State affairs and there is no reason why
the law, which in its original form was wide enough
to secure that
protection, should by restrictive interpretation, be cut down to
something less than is necessary to achieve its
objects.',
[4]
[11] The
1918 Prevention of Corruption Act
[5]
extended the crime from employees of the State to agents who
generally included employees of the State.
[6]
The Prevention of Corruption Act of 1958
[7]
replaced the 1918 Act and provided that any person who 'corruptly
gives or agrees to give or offers any gift or consideration to
any
agent as an inducement or reward for doing or forbearing to do or for
having done or forborne to do any act in relation to
his principal's
affairs or business ' was guilty of an offence.'
[8]
[12] Both
the common law offence and the 1958 Act was repealed by The
Corruption Act.
[9]
This Act required that the act which is penalised must relate to the
powers and duties of the person sought to be influenced by
the giving
or offering or paying of a benefit.
[10]
The PCCA Act in turn replaced The Corruption Act. The appellant was
charged with contravening section 3(a) of the PCCA Act which
contains
an elaborate formulation of a general offence of corruption. It must
be emphasized that the provisions of section 3 are
widely formulated
and also include private individuals who are not State employees.
[13] It is
helpful to refer to the formulation of the offence offered by
Snyman:
[11]
"Anybody
who accepts any gratification from anybody in order to influence the
receiver to conduct himself in a way which amounts
to the unlawful
exercise of any duties, commits corruption".
[12]
[14]
From the above exposition, the elements of the crime may be distilled
as:
(i)
the acceptance of by the appellant;
(ii)
of a gratification;
(iii)
in order to act in a certain way;
(iv)
unlawfulness; and
(v)
intention.
[13]
[15]
I turn immediately to the gravamen of the charge in count 1. I will
paraphrase the charge to
make it digestible. The particulars set out
in the charge sheet are the same facts that the State relied upon for
the conviction
count 2 and 3. It is alleged that the appellant during
the period May to August 2015 directly or indirectly accepted or
agreed
to accept gratification from GJL Human, consisting of cash
payments on different occasions, totaling the amount of R25 000.00,
and a payment by means of 2 bottles of liquor whether as a benefit to
himself or as benefit of another or to influence his commanding
officer and or the control prosecutor to act in a manner that amounts
to illegal, dishonest, unauthorised or 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 that amounts to an abuse of a position of
authority,
breach of trust, or a violation of a legal duty or set of rules
designed to achieve on unjustified result or that amounts
to any
unauthorized or improper inducement to do or not to do anything by
agreeing or offering to accept gratification from GJL
Human in order
for the appellant together with his commanding officer to cause
dockets Bela Bela CAS 250/4/13 and CAS 475/08/13
to be finally
withdrawn or closed or struck off the roll by the control prosecutor
and/or for the appellant to supply information
to the said GJL Human
or employees or owners of Bela Bela Entertainment Lounge about
planned operations or raids by the Limpopo
Gambling Board in order to
avoid arrest or possible prosecutions for illegal gambling.
[16]
The appellant was convicted on count 2, the elements of the crime
will now be examined to determine
whether the facts also proved that
the appellant contravened of section 3(a) of the PCCA Act.
[17]
It will be recalled that in respect of the allegations set out in
count 1 the appellant intended
to achieve two main objectives. The
first is that he as police officer and the investigating officer of
two Bela Bela case dockets
with the assistance of his commanding
officer will influence the control prosecutor to finally withdraw,
close or struck the charges
off the roll. And secondly, that he
intended to supply Human and or with information of planned or
possible raids undertaken by
the Limpopo Gambling Board to avoid
prosecution.
[18]
In respect of the appellant's first aim or objective the State proved
that the appellant accepted
and received gratification from GJL Human
on various occasions between May 2015 and August 2015 totaling to
R25000.00 as well as
gratification consisting of 2 bottles of
liquor.
[14]
It was also proved that the
appellant was not a police officer and that he was not the
investigating officer in respect of the two
dockets Bela Bela CAS
250/4/13 and CAS 475/08/13. The undisputed evidence is that the
control prosecutor had declined to prosecute
on 13 April 2015 in
respect of both dockets. (The charges had already been withdrawn when
the appellant accepted the gratification).
[19] It
must, therefore, be accepted as proven, for purposes of count 1, that
the appellant
was not a police officer and thus not appointed to
investigate the two case dockets; He had no commanding officer. They
could not
submit a statement to the control prosecutor to influence
him to withdraw the charges. (The dockets had in any event been
withdrawn
and filed prior to him agreeing to accept the
gratification).
[20] The
crime requires a double intention. It follows that the state must
prove:
(a) that
the appellant, have intended to accept the gratification and
(b) that
the appellant intended (in order) to act in a certain way in the
future.
[21]
The additional requirement (b) above, was explained in
S
v Shaik and Others:
[15]
'It
follows that the concession by the appellants were correctly made; if
Shaik gave benefits to Zuma with the intention to influence
him to
commit or omit to do any act in relation to his duties in terms of s
96(2) or 136(2) of the Constitution Shaik committed
an offence in
terms of s (1)(a)(i) of the CA.'
[22]
Different considerations apply in relation to the appellant's aim to
supply information
to Human or the employees or owners of Bela Bela
Entertainment Lounge about planned operations or raids by the Limpopo
Gambling
Board to assist Human to avoid arrest and prosecution for
operating an illegal gambling business in contravention of section
77(b)
of the Limpopo Gambling Act 4 of 1996.
[23]
The appellant need not necessarily be a police officer to be able to
commit the offence.
Direct evidence that the appellant received such
information from a police officer or official of the Gambling Board
may have been
sufficient for a conviction. Circumstantial evidence
may be presented that the
appellant
received information of planned raids or police actions from a police
officer or official of the Gambling Board and that
he conveyed that
information to Human will also be sufficient for a conviction. It
will depend on the circumstances and the facts
of the case to prove
the misuse or selling of information or material acquired in the
course of the exercise, carrying out or performance
of any powers,
any duties or functions arising out of a constitutional, statutory or
other legal duty which amounted to an abuse
of authority, breach of
trust, or a violation of a legal duty or set of rules by a police
officer of other officer.
[24]
Indeed, it is a proven fact, the appellant was not performing any
duties or functions
arising out of a constitutional, statutory or
other legal duty which could amount to an abuse of power, breach of
trust, or the
violation of a legal duty or set of rules as required
by section 3(a). Human testified, in chief, that it was him who
suggested
to the appellant that the appellant should act as extra
security for him or his employer for financial reward with a view to
supplying
Human with information whenever there are raids or warrants
to be executed by the Limpopo Gambling Board. But Human at that time
as a result of the misrepresentation laboured under the impression,
that the appellant was a police officer who was able to obtain
such
information. The information was needed to allow him enough time to
close the shop so that warrants could not be executed.
Although no
specific amount was agreed upon for his services, the appellant
agreed with the proposition. During May 2015, Human's
employer
instructed Human to pay the appellant R7000.00 every month. It was
R3000 for the appellant and R4000.00 for the colonel.
The appellant
also accepted that proposal. The appellant contacted him and informed
him about the raids, police action in town
and other police
activities. Human explained that the appellant contacted him with
information which the appellant thought was
part of Human's business
and also when members of the Limpopo Gambling Board were in town or
in town to investigate any other cases.
Human testified that the
appellant contacted him in May, June and July 2015. In May the
appellant informed him that he should not
worry. In the same month
the appellant informed Human that he will be going away for the
weekend and would appreciate extra pocket
money for that purpose. He
was given an amount of R4000.00 to divide between himself and his
colonel.
[25]
Counsel for the respondent argued that this evidence established that
the appellant provided
Human with information of raids by the Limpopo
Gambling Board. I cannot agree with his contention. The evidence fell
short, even
by inferential reasoning, that the appellant had
information of planned raids by the Limpopo Gambling Board or that
the Gambling
Board indeed undertook raids. Even upon acceptance of
the evidence that the appellant had informed him of members of the
Gambling
Board being in town or even of police action being
undertaken is not proof that the members of the Gambling Board had
indeed planned
to raid or had undertaken raids at the premises where
Human was employed or that the police did undertake police action.
The mere
fact that he told Human so is not proof that his statement
was true.
[26]
The accepted factual matrix that the appellant misrepresented that he
was a police
officer and that he was the investigating officer in the
two dockets in question are important facts that simply cannot be
ignored
when consideration is given whether that the appellant
intended (in order) to act in a certain way in the future.
[27]
He had invented the existence of his commanding officer, the
so-called 'colonel'
which he had employed to give credence to his
elaborate fraudulent scheme to solicit money from Human, which the
State proved was
his main objective. The appellant exploited Humans'
initial criminal conduct and his willingness to partake in corrupt
activities.
[28]
Human initiated the possibility for the appellant to act as extra
security for his
employer and himself. The appellant simply played
along by supplying vague reports of the Gambling Board being in town
or police
raids or actions being undertaken in and around town. No
evidence was adduced that members of the Board raided or even planned
to raid the premises where Human was employed in May, June or July
2015. Such evidence, if presented, could have been sufficient
to show
that the appellant was privy to such information and that he conveyed
confidential information of such raids or planned
raids to Human. As
the evidence stands at present, this court is faced with evidence
which was accepted by the regional court magistrate,
that the
appellant deceived Human to believe that he was a police officer who
with the assistance of his commanding officer was
able, to influence
the investigation to the extent that the charges will be withdrawn
and that he (as the police officer in charge
of the investigation)
was able obtain information with regard to possible raids on the
place of business of Human. And in doing
so, Human acted to his
prejudice or potential prejudice to pay the appellant various sums of
money.
[16]
[29]
The appellant, therefore, lacked the additional intention to act in a
certain way
in return for the gratification. The appellant never
intended to accept the gratification as an inducement to act in a
certain
manner, neither when he solicited the gratification from
Human, by making the misrepresentation, nor on any of the occasions
when
gratifications were paid to him.
[30]
The State framed count 1 on the basis that the appellant was indeed a
police officer.
Counts 2 and 3, again, were framed on the basis that
he was nothing of the sort. The facts on which the State relied for a
conviction
are mutually exclusive.
[31]
Accordingly, the State, in my judgment, has failed to prove that the
appellan,t accepted
the gratification in the exercise of his official
duty as a police officer, in order (with the
intention)
to act in a certain manner, that amounts to "illegal, dishonest,
unauthorized, incomplete, or biased or the misuse
or selling of
information acquired in the course of the exercise, carry out or
performance of any duties or functions arising from
his capacity as a
police officer which is a constitutional, statutory or other legal
duty which amounted to an abuse of authority,
breach of trust, or a
violation of a legal duty or set of rules.
[32]
The appellant did not perform any such duties or functions arising
out of a constitutional,
statutory or other legal duty which could
amount to an abuse of power breach of trust or the violation of a
legal duty or set of
rules.
[17]
The appellant merely deceived Human to think so and to act to his
prejudice.
[33]
There is no justification for the appellant to have made the
misrepresentation to
Human which he knew to be false to benefit
financially from his fraudulent scheme. The appellant, at all times,
knew full well
that he acted unlawfully.
[34]
There is a matter of concern that unfortunately must be addressed.
Neither the appellant
nor the respondent filed their heads of
argument on time. The appellant filed his heads of argument the day
prior to the hearing
without a substantive application for
condonation. Counsel for the respondent did not file heads of
argument at all and was unable
to hand up his heads of argument when
called upon by the Court to do so. We were told that his heads were
outside the courtroom.
The Court had to adjourn for a half hour to
afford counsel the opportunity to retrieve his heads from wherever
they were. When
he eventually returned he handed up the heads of
argument also without a substantial application for condonation.
[35]
We decided, regardless of the flagrant failure by both parties to
comply with the
rules of this court, to nevertheless proceed with the
appeal in the interest of justice as the appellant is serving a
lengthy custodial
sentence. He is certainly not to be blamed for the
remissness of his legal representative to comply with the rules of
this court.
[36]
Neither the attorney for the appellant nor counsel for the respondent
can claim to
be ignorant of the rules. They were, after all, informed
in writing by the registrar when to file their heads of argument. It
is
the duty of each and every practitioner who exercises his right
and the privilege to appear in the High Court to uphold, and not
defy, the dignity of the court by adhering to its practices and
rules.
[36]
The members of this court were disadvantaged in preparing for the
appeal which leads to wasting
of resources and time. Time is a
precious commodity in this division where Judges work under
tremendous pressure and time constraints.
The parties appearing in
the appeal are also put at a disadvantage by the late filing of their
heads of argument. They did not
afford each other the opportunity to
reflect and to consider the arguments raised by the other. That again
leads to poor presentation
of their arguments in court.
[36]
Having said that, it must in fairness be pointed out that counsel for
the respondent
was probably brought under the impression that the
appellant has abandoned his appeal by the failure to file heads of
arguments
and was possibly caught by surprise when the appellant
filed his heads of argument late. He was nevertheless able to draft
heads
of argument. Both practitioners were requested to file
supplementary heads of argument, which they have filed in due time.
In
the result the following order is made.
ORDER
1. The appeal against
the conviction and sentence in respect of count 1 is upheld.
2. The conviction and
sentence are set aside.
GC MULLER
JUDGE
OF THE HIGH COURT LIMPOPO
DIVISION:
POLOKWANE
I
concur
TC TSHIDADA
ACTING
JUDGE OF THE HIGH COURT
LIMPOPO
DIVISION: POLOKWANE
APPEARANCES:
For
the Appellant:
Mr
Malumbete
Malumbete
& Makhubele Attorneys
Polokwane
For
the Respondent:
Adv
M M Mphaga
The
Deputy Director of Public Prosecutions
Polokwane
Date
of hearing: 20 March 2020.
Date
of Judgment:
[1]
Act 12 of 2004 (Hereinafter called the PCCA Act).
[2]
Act 68 of 1995.
[3]
1945 AD 487.
[4]
The 'State' included municipal officials.
[5]
Act 4 of 1918.
[6]
S v Shaik and Others
[2006] ZASCA 105
;
2007 (1) SACR 247
(SCA) par 71.
[7]
Act 6 of 1958.
[8]
Section 2(b).
[9]
Act 94 of 1992.
[10]
S
v Shaik supra
par 73.
[11]
Snyman CR
Criminal Law
6
th
ed LexisNexis (2014).
See also
Scholtz and Others v The State
(428/17, 491/17,
635/17, 636/17
[2018] ZASCA 106
(21 Augustus 2018) par 119-126.
[12]
Snyman
supra
403.
[13]
Snyman
supra
404.
[14]
The definition of 'gratification' in section 1 includes money and
includes any donation or gift or valuable consideration.
[15]
[2006] ZASCA 105
;
2007 (1) SA 240
(SCA) par74.
[16]
The motive is irrelevant. S
v Van Biljon
1965 (3) SA 314 (T)
318.
[17]
Section 25(b) of PCCA does not assist the State. The State proved
that the appellant was neither in a position to act in a certain
way
nor that the appellant intended to so to act.