About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2019
>>
[2019] ZAFSHC 91
|
|
Monenyane v S (A225/2018) [2019] ZAFSHC 91 (30 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A225/2018
In
the matter between:
BONTLE
MONENYANE
Appellant
and
THE
STATE
Respondent
CORAM
:
CHESIWE, J
et
OPPERMAN, J
HEARD
ON
:
11
FEBRUARY 2019
JUDGMENT
BY
:
CHESIWE,
J
DELIVERED
ON
:
30
MAY 2019
SUMMARY:
Appeal – Conviction and Sentence -
Corruption: Accepting
a Benefit
JUDGEMENT
[1]
The Appellant was prosecuted before the
Botshabelo Magistrate Court on a charge of corruption in terms of
section 4(1)(a)(i)(aa)
read with Sections 1, 2, 4(2), 24, 23,
26(1)(a) of the Prevention and Combating of Corrupt Activities Act,
Act 12 of 2004. She
pleaded not guilty. She was convicted and
sentenced to five (5) years imprisonment.
[2]
The trial court denied an application for
leave to appeal. The Appellant, by way of petition to the Judge
President of this Honourable
Court, was granted leave to appeal
against conviction and sentence.
[3]
The Appellant was legally represented by Mr
Mxaka at the trial court.
[4]
The Appellant’s appeal is based on
the following grounds:
“
That
the trial court erred in finding that the State proved its case of
corruption against the Appellant beyond reasonable doubt;
that the
State witnesses materially contradicted themselves in respect of the
evidence of the complainant; that the main complainant
was not
present when the alleged offence was committed.”
[5]
It
was noted in the transcribed record
[1]
that the Appellant’s legal representative made an application
in terms of
section 174
of the
Criminal Procedure Act 51 of 1977
. The
trial court dismissed the application on the grounds that there is a
prima
facie
case against the Appellant.
[2]
[6]
The background on this matter is briefly
that on the 11
th
of July 2014, the Appellant as well as the SAPS were involved in an
operation between the South African and Lesotho border, for
checking
of stolen motor vehicles. Due to this operation, the
complainant, Samuel Ntsweu was arrested on 11 July 2014 for
theft of
a motor vehicle. He was taken to Heidedal Police Station. On the 14
th
of July 2014 near Botshabelo the Appellant, being a public officer
(SAPS), indirectly or directly accepted an amount of R2500.00
from a
certain person Kananelo for her own benefit, in order to release the
complainant from custody. The Appellant informed the
complainant that
if he paid an amount of R2500.00, the case against him will
disappear. The complainant made arrangements with
the Appellant that
he will speak to his wife to get the R2500.00. However, on 15 July
2014, he was released on bail of R2500.00
and the case was withdrawn
against him.
[7]
The first State witness, Lydia Ntsweu
(spouse to the complainant) testified that the Appellant contacted
her for an amount of R2500.00
but she did not have the money. She
arranged with a Kananelo Nkosi (Nkosi) to hand over the money to the
Appellant. Nkosi confirmed
to her that he gave the money to the
Appellant. However, she was not present when the money was handed
over to the Appellant. The
third State witness, Kananelo Nkosi
testified that he indeed gave the Appellant the amount of R2500.00 in
front of the Standard
Bank in Thaba Nchu.
[8]
The Legal Representative on behalf of the Appellant, during oral
argument, submitted that the State’s case was not proven
beyond
reasonable doubt. He submitted that it was clear that the State
witnesses materially contradicted each other. The
witnesses did not
corroborate each other and that there was doubt on their credibility.
And that the appeal against conviction
and sentence must therefore be
dismissed.
[9]
Counsel on behalf of the Respondent submitted that the State at the
trial court did not obtain the statement of the Lesotho
Police
officer who was with the Appellant when the complainant was
transported to Heidedal, nor did the State obtain the corroborative
phone record of the Appellant, Lydia Ntsweu and Kananelo, as well as
the Automatic Vehicle Location
[3]
(AVL) report of the vehicle that the Appellant allegedly transported
Kananelo with from Thaba-Nchu to Botshabelo. Counsel
therefore
conceded that the conviction and sentence imposed by the trial court
is not supported and that the appeal on conviction
and sentence be
upheld.
[10]
According to Kananelo’s testimony the R2500.00 was to be used
for bail. Though Kananelo could not recall a lot
of things such
as whether he gave the Appellant R100 or R200 notes,
[4]
nor could he remember whether the Appellant drove in a white Toyota
Hilux bakkie. On being question about the money he paid over
whether
it was for the bribe, he stated as follows:
[5]
“
Prosecutor: So you
were told that was bail money?
Omdat
ek gesê was dat ek moet vinnig die geld bymekaar maak, dit is
nou wat in my gedagte opgekom het dat in ander woorde
daardie geld
sal gebruik word om borg te betaal namens Mnr Ntsweu te betaal.”
[11]
It was noted on the transcribed record
[6]
that the complainant was not present, neither part of the transaction
of the handover of the money, this is noted in the following
evidence
of the State witnesses:
“
Prosecutor:
Now sir, did you see when Kananelo handed money to accused person?
Hof: Wie is Kananelo?
Prosecutor: It is the
third State witness, your Worship.
He will be called.
Ek was in die selle
gewees want ek het hom nie gesien nie.
And further page 12, line
10.
“
Sir
in short, you did not give accused money with your hand?
Ja.
And you do not know
whether Kananelo gave the accused the money because you were not
there?
Ek was
nie daar nie.”
[12]
It is trite that the onus rest on the State to prove its case beyond
reasonable doubt and the Appellant is expected to give
a version
which is reasonable possibly true and if she has done so, she is
entitled to an acquittal.
[13]
From the State witnesses’ testimony it is indeed such that the
alleged amount paid to the Appellant was either for the
bribe or for
the bail. The witnesses could not with certainty confirm for what was
the money nor could they corroborate each other’s
versions.
[14]
As correctly stated by Counsel on behalf of the Appellant that the
State could have corroborated its evidence by obtaining
the phone
records of the State witnesses, that of the Appellant and the Lesotho
Police officer who was allegedly present when the
complainant was
escorted to Heidedal Police Station; this in order to corroborate the
version of the complainant. The complainant
was not present
when the money exchange hands between the Appellant and Kananelo. The
State did not prove if the money was even
handed over to the
Appellant, neither is there proof that the money was used to settle
for bail. In
S
v Radebe
,
[7]
Swartz J stated as follows:
“
Die
staatsaak moet, met inagneming van die sterkhede en die swakhede
daarvan saam met die verdedigingsaak en die sterkte en swakhede
in
die weegskaal gegooi word.”
[15]
It is trite that for the Respondent to prove the conviction of
commission of the offence, the State must submit sufficient
evidence
to prove that an offence indeed occurred or was committed. Indeed,
as correctly stated by Counsel on behalf of the
Appellant, that the
Respondent failed to adduce evidence that the Appellant committed the
offence. The Respondent in this instance
conceded that the State at
the trial court did not prove its case beyond reasonable doubt.
[16]
In
S
v Chabalala
,
[8]
the court said: “The correct approach is to weigh up all the
elements which points towards the guilt of the accused against
those
which are indicative of his innocence, taking proper account of the
inherent strengths and weakness, probabilities and improbabilities
on
both sides and, having done so, to decide whether the balance weighs
so heavily in favour of the State as to exclude any reasonable
doubt
about the accused’s guilt.”
[17]
It is trite that a case cannot be proved on a balance of
probabilities when a criminal offence is alleged. A case has to be
proven beyond reasonable doubt. The State bears the onus to prove the
guilt of an accused person beyond reasonable doubt.
[18]
It is trite that an appeal court will only tamper with the trial
court‘s findings if it is shown that the findings made
by the
trial court were clearly wrong. It was submitted by Counsel on behalf
of the Appellant that the trial court committed misdirection
of
fact. Furthermore, when consideration is paid to all
inconsistencies and improbabilities, there is reasonable doubt to
the
correctness of the credibility findings made by the trial court. I am
satisfied that none of the elements of corruption were
present, and
neither did the State prove beyond reasonable doubt the corruption
charge against the Appellant. In my
view the State, at
the trial court, did not prove its case beyond reasonable doubt.
Furthermore, the trial court incorrectly found
the Appellant to be an
untruthful witness and incorrectly rejected her version as false
beyond reasonable doubt.
[19]
I agree with the submission by the
Appellant that the magistrate failed to consider all relevant
evidence in determining whether
a crime has been committed. It
is clear that failure to consider all evidence resulted in the wrong
verdict. In the
result the Appellant ought to have been
acquitted.
[20]
In my view the trial court incorrectly convicted the Appellant.
Therefore there is no reason not to tamper with the trial
court’s
findings on the conviction. Thus the conviction against the Appellant
ought to be set aside.
[21]
In respect of the appeal against sentence, this issue becomes moot
when the conviction is set aside, therefore it will not
be necessary
to address it as the conviction against the Appellant is set aside.
[22] I accordingly order
as follows.
1.
The appeal against conviction succeed.
2.
The conviction and sentence of the trial
court is set aside.
______________
S.
CHESIWE, J
I
concur.
_______________
M.
OPPERMAN, J
On
behalf of Appellant: W. Van Der Berg
Instructed
by:
Van
Der Berg Atttorneys
BLOEMFONTEIN
On
behalf of Respondent: Adv. K.E. Lesie-Shale
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
[1]
Application
in terms of
section 174
of the
Criminal Procedure Act 51 of 1977
.
[2]
Page
17-20 of the record.
[3]
A
tracking system that is used to locate and determine the geographic
location of a vehicle.
[4]
Page
16 lines 11 – 12 of the record.
[5]
Page
13, Line 20.
[6]
Modupi
testimony, Page 8, line 16.
[7]
1991
(2) SASV 166 (T) at 182.
[8]
2003
(1) SACR 134
(SCA) at 139 I – J.