About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2017
>>
[2017] ZAGPPHC 41
|
|
Segalo v S (A543/2010) [2017] ZAGPPHC 41 (14 February 2017)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
14/02/2017
CASE NO:A543/2010
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In the matter between:
NTOKOZO
ALLISTER SEHLE SEGALO Appellant
and
THE
STATE Respondent
JUDGMENT
RANCHOD
J:
[1]
This is an appeal
against both conviction and sentence with the leave of the trial
court. The appellant was legally represented
throughout the trial.
[2]
The appellant was
convicted in the Regional Court, Vereeniging, on 24 April 2006 in
that he contravened the provisions of section
1(1)(b) read with
sections 2 and 3 of the Corruption Act 94 of 1992 (receiving a
benefit). He was sentenced on the same day to
five years'
imprisonment.
[3]
Also on the same
day, the appellant applied for leave to appeal which was granted, as
I said, on both conviction and sentence.
[4]
The grounds for
appeal advanced were that the trial court under emphasized
discrepancies and contradictions on the part of the complainant's
evidence and overemphasized foe flaws in the appellant's evidence. It
was submitted that the trial court also overemphasized the
contradictions between the evidence of the witness Mbambo and the
appellant whilst the court had expressed reservations about the
value
of Mbambo's evidence. Further, that nowhere in her statement made to
the police did the complainant say that money was given
to the
appellant by here on any of the alleged three occasions. It was
submitted that the court
a
quo
ignored the
contents of the complainant's statement and overemphasized her
testimony in court.
[5]
Insofar as
sentence is concerned it was rather cryptically submitted that it was
too harsh and induced a sense of shock.
[6]
In the notice of
appeal the appellant says:
'AD CONVICTION:
1.
That
the guilt of the Appellant was not proved beyond a reasonable doubt;
2.
That
there were improbabilities and/or contradictions in the case of the
State;
3.
That
the trial court erred in rejecting the evidence of the Appellant;
4.
That
the trial court failed to properly evaluate the evidence of the State
witnesses.
AD
SENTENCE
1.
That the trial court did not
properly consider the cumulative effect of the factors in mitigation
of sentence.'
[7]
I
should note two points before dealing with the merits of the appeal.
First, that the appellant was admitted to bail, on conditions,
on 24
April 2006 pending the appeal. Second, that on 15 February 2013 the
appeal was postponed
sine
die
for the trial
record to be reconstructed. The entire evidence of the complainant
and of several state witnesses was then reconstructed.
Ms Van Wyk,
who appears for the appellant on instructions of the Legal Aid Board
in the appeal informed the court in her heads
of argument that
although the record has still not been properly re-constructed as it
is rather difficult to read. Further, that
it was her instructions
from the appellant that the appeal may be finalised on the record as
it now is. The State holds a similar
view. We have perused the record
and are satisfied that the appeal may indeed be finalised on the
record as it is now.
[8]
The key witness
for the State was the complainant, Mrs Mkhwanazi whose testimony in
essence was as follows. She had been arrested
in 2002, in Port
Nolloth (in the Northern Cape) for being in possession of R65 000.00
in fake currency. She was released on bail
whereafter she returned to
her residence in Orange Farm in Gauteng. She had to appear in court
in Port Nolloth on 14 January 2003.
Mrs Mkhwanazi did not have
transport to return to Port Nolloth hence she went to the Police
Station in Orange Farm to seek assistance.
She met the appellant at
the Police Station. He informed Mrs Mkhwanazi that he will be able to
assist her if she pays him R1 000.
The appellant informed Mrs
Mkhwanazi that he will report to Port Nolloth that he was unable to
trace her. She paid the appellant
R1 000. The appellant returned to
Mrs Mkhwanazi during May 2003. She was informed that the appellant
had received a warrant for
her arrest. The appellant was in the
company of other police officers. She was requested to make a further
payment. Mrs Mkhwanazi
was transported back home by the appellant and
his colleague where her husband gave R500 and another R500 was
borrowed from her
neighbour Lettie. The money was handed over to that
colleague. She was informed that the money was not enough as they
(the police
officers) were many. She was given three cell phone
numbers written on a piece of paper on which the appellant had
written his
name as 'Sihle'. At some stage she phoned one of the
numbers and informed the person that she had a further R700. The
appellant
and two other police officers came to collect the R700. Mrs
Mkhwanazi was informed that the money was still not enough. A further
R2 000 was demanded. She sought advice from her brother who informed
her to approach the police's Anti-Corruption Unit. Sergeant
Kramer of
the Anti-Corruption Unit assisted Mrs Mkhwanazi. Kramer arranged for
a police trap. Mrs Mkhwanazi was handed R2 000 as
well as a cell
phone from which she made arrangements with the appellant to pay him
the outstanding amount of R2 000. The appellant
came to Mrs
Mkhwanazi's house and collected the R2 000. He was wearing plain
clothes and was in the company of another police officer
who was
wearing a uniform.
[9]
Eleven witnesses
testified for the State. The appellant initially closed his case
without testifying nor did he call any witnesses.
The trial court
then called two witnesses whereafter the appellant was allowed to
re-open his case. He then testified in his defence.
[10]
The learned magistrate, in a detailed judgment, 'carefully analysed
the evidence of all the witnesses including that of the
appellant. He
made certain credibility findings about some of the State witnesses
and found certain discrepancies and contradictions
in their evidence.
The court a
quo
made
a number of adverse findings regarding the evidence of the appellant
as well.
[11]
Appellant
complains that the court misdirected itself in accepting the evidence
of the complainant who was a single witness. The
submission in the
heads of argument, as I understand it is that she was not to be
believed because in the Port Nolloth case against
her, she had given
a false address to the police. The submission cannot be sustained. If
she did give a false address in that case,
it does not mean that in
the present case she is to be disbelieved. At most it can be said
that her evidence must be considered
with caution which the trial
court was alive to as may be summarised from its careful analysis of
the evidence of the complainant.
[12]
Insofar as the
furnishing of a false address is concerned the complainant explained
that she was not asked for her address but that
the police obtained
it from her passport which she had with her at the time. The address
in the passport was that of her uncle.
[13]
The complainant
was subjected to lengthy cross-examination by able counsel for the
appellant. There are, in my view, no material
contradictions or
inconsistencies in her evidence. She stood steadfast on the essential
aspects of her evidence against the appellant.
[14]
It appears that a substantial part of the criticism of the evidence
of the witness for the State relates to the trap set up
by the
Anti-Corruption Unit. The learned magistrate was aware of and was
critical of the manner in which the trap was handled,
particularly
with regard to the R2 000 used in the trap in that a proper search of
the complainant and her belongings and of her
brother was not done
before the trap was put into operation. Neither was the complainant
searched afterwards to determine whether
she did not retain the money
herself and had in fact given it to the appellant. In any event, the
shortcomings in the conduct of
the trap do not negate the compelling
evidence that the appellant sought a bribe from the complainant which
resulted in her giving
him money on three separate occasions prior to
the setting up of the trap.
[15]
The correct
approach to the evaluation of evidence in a criminal trial was
enunciated by the Supreme Court of Appeal as follows
in S
v
Chabalala 2003(1) SACR 134 (SCA)
at
paragraph 15:
'The
trial court's approach to the case was, however, holistic and in this
it was undoubtedly right: S v Van Aswegen
2001 (2) SACR 97
(SCA). The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which
are indicative of
his innocence, taking proper account of inherent strengths and
weaknesses, 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. The result may prove that one scrap of evidence or
one defect in the case for either party (such
as the failure to call
a material witness concerning an identity parade) was decisive but
that can only be an
ex
post facto
determination
and a trial court (and counsel) should avoid the temptation to latch
on to one (apparently) obvious aspect without
assessing it in the
context of the full picture presented in evidence... .'
This
salutary approach was also adopted in S
v
Trainor 2003(1) SACR 35 (SCA)
para
9.
[16]
The Supreme Court
of Appeal set out the correct approach regarding proof, as follows in
S v Phallo
&
Others 1999(2) SACR
558 (SCA at 562 para 10):
'On
the basis of this evidence it was argued that the State had, at best,
proved its case on a balance of probabilities but not
beyond
reasonable doubt. Where does one draw a line between proof beyond
reasonable doubt and proof on a balance of probabilities?
In our law,
the classic decision is that of Malan JA in
R v Mlambo
1957
(4) SA 727
(A).
The learned Judge deals, at 737F-H, with an
argument (popular at the Bar then) that proof beyond reasonable doubt
requires the prosecution
to eliminate every hypothesis which is
inconsistent with the accused's guilt or which, as it is also
expressed, is consistent with
his innocence. Malan JA rejected this
approach, preferring to adhere to the approach which 'at one time
found almost universal
favour and which has served the purpose so
successfully for generations' (at 738A). This approach was then
formulated by the learned
Judge as follows (at 738A- C):
'In
my opinion, there is no obligation upon the Crown to close every
avenue of escape which may be said to be open to an accused.
It is
sufficient for the Crown to produce evidence by means of which such a
high degree of probability is raised that the ordinary
reasonable
man, after mature consideration, comes to the conclusion that there
exists no reasonable doubt that an accused has committed
the crime
charged. He must, in other words, be morally certain of the guilt of
the accused.'
[17]
An accused’s
claim to the benefit of a doubt when it may be said to exist must not
be derived from speculation but must rest
upon a reasonable and solid
foundation created either by positive evidence or gathered from
reasonable inferences which are not
in conflict with, or outweighed
by, the proved facts of the case.'
Vide:
S v Sauls and Others
1981 (3) SA 172
(A) at 182G - H;
S v Rama
1966 (2) SA 395
(A) at
401;
S v Ntsele
1998 (2) SACR 178
(SCA) at 182b-h.)
[18]
As far as the
credibility finding that is made in respect of a single witness, the
Supreme Court of Appeal held as follows in
S
v Pistorius 2014(2) SACR 315 (SCA) para 30:
'It
is a time-honoured principle that once a trial court has made
credibility findings, an appeal court should be deferential and
slow
to interfere therewith unless it is convinced on a conspectus of the
evidence that the trial court was clearly wrong. R v
Dhlumayo and
Another
1948 (2) SA 677
(A) at 706; S v Kebana
[2010] 1 All SA 310
(SCA) para 12.' As the saying goes, he was steeped in the atmosphere
of the trial. Absent any positive finding that he was wrong,
this
court is not at liberty to interfere with his findings.'
The
trial court had the advantage of observing the witnesses as they
testified which the appeal court does not have.
[19]
The following
quote is at length from the English headnote in S v
Mafaladiso
en Andere 2003(1) SACR 583 (HHA):
'The
juridical approach to contradictions between two witnesses and
contradictions between the versions of the same witness (such
as,
inter alia,
between
her or his viva voce evidence and a previous statement) is, in
principle (even if not in degree), identical. Indeed, in
neither case
is the aim to prove which of the versions is correct, but to satisfy
oneself that the witness, could err, either because
of a defective
recollection or because of dishonesty. The mere fact that it is
evident that there are self-contradictions must
be approached with
caution by a court. Firstly, it must be carefully determined what the
witnesses actually meant to say on each
occasion, in order to
determine whether there is an actual contradiction and what is the
precise nature thereof. In this regard
the adjudicator of fact must
keep in mind that a previous statement is not taken down by means of
cross-examination, that there
may be language and cultural
differences between the witness and the person taking down the
statement which can stand in the way
of what precisely was meant, and
that the person giving the statement is seldom, if ever, asked by the
police officer to explain
their statement in detail. Secondly, it
must be kept in mind that not every error by a witness and not every
contradiction or deviation
affects the credibility of a witness.
Non-material deviations are not necessarily relevant. Thirdly, the
contradictory versions
must be considered and evaluated on a holistic
basis. The circumstances under which the versions were made, the
proven reasons
for the contradictions, the actual effect of the
contradictions with regard to the reliability and credibility of the
witness,
the question whether the witness was given a sufficient
opportunity to explain the contradictions - and the quality of the
explanations
- and the connection between the contradictions and the
rest of the witness'
e
vidence,
amongst other factors, to be taken into consideration and weighed up.
Lastly, there is the final task of the trial Judge,
namely to weigh
up the previous statement against the viva voce evidence, to consider
all the evidence and to decide whether it
is reliable or not and to
decide whether the truth has been told, despite any shortcomings.'
(At 593e - 594h.)
[20]
The trial court
found, in my view correctly so, that there was no reason for the
State witnesses to collude and falsely implicate
the appellant. In
assessing the complaint's credibility (and that of the appellant) the
court a
quo
took
into account that the incident happened a long time before the trial
and that the contradictions per se did not mean the complainant
was
being dishonest.
[21]
There
is sufficient evidence that on the date of the trap the appellant was
at a funeral and later at the complainant's house where
the trap was
set up and a meeting was arranged between the complainant and the
appellant. Thus the appellant corroborates the State's
case.
According to Kramer's evidence the complainant paid her a visit on
the day of the trap. The complainant contacted someone
in her
presence and the complainant confirmed in her evidence that she went
to Kramer and that she made a phone call to the appellant
and that
she made arrangements with the appellant to meet on that day at 13h00
as he was at a funeral.
[22]
The complainant's
brother Rosen's evidence on this point is that he was present when
the phone call was made and that he knows about
the fact that the
person to whom complainant was speaking, mentioned a funeral.
[23]
According to
Superintendent Mokonyane the appellant was off duty on 29 May 2003.
He was on rest days and they all attended a funeral
that day
including the appellant.
[24]
According to
Sergeant Kheswa, who was also on duty that day, he saw the appellant
at the police station and they all attended a
funeral and saw the
appellant there.
[25]
Insofar as the
submission by appellant's counsel, during the application for leave
to appeal is concerned, that the complainant
had contradicted her
written statement when testifying in court, it must be remembered
that contradictions
per
se
does not result in
a conclusion that the evidence of the witness is to be rejected. In
S
v Mahlangu and Another (CC7012010) [2012] ZAGPJHC 114 (22 May 2012)
Horn J (with whom I
respectfully agree) restated the principles relating to written
statements by witnesses. The learned Judge held
-
'In
order to discredit a witness who made a previously inconsistent
statement it must be shown that the deviation was material (S
v
Bruiners en 'n Ander
1998 (2) SACR 432
(SE) at 437e; S v Mafaladiso
en Andere
2003 (1) SACR 583
(SCA) at 593e). Deviations which are not
material will not discredit the witness. Police statements and
statements obtained from
witnesses by the police, are notoriously
lacking in detail, are inaccurate and often incomplete. A witness
statement is in the
main required to enable the prosecuting authority
to determine whether a prosecution is called for, on what charge and
to consider
which witnesses to call on which issues. It would be
absurd to expect a witness to say exactly in his statement what he
will eventually
say in court. There will have to be indications other
than a mere lack of detail in the witness' statement to conclude that
what
the witness said in court was unsatisfactory or untruthful.
There
is no law that compels a witness what to say and what not to say in
his statement. The witness tells it as he sees it. He
is not expected
to relate in his statement what he saw in the minutest detail. Should
a witness through a lapse of memory or any
other valid reason omit
some detail which later could become important, he should not as a
matter of course be branded as being
untruthful. Moreover the mere
fact that a witness deviates in a material respect from what he said
in his statement does not necessarily
render all his evidence
defective. The court will in the final analysis consider the evidence
as a whole in order to determine
in what respects the witness'
evidence may be accepted and in what respects it should be rejected.
Counsel who act on behalf of
accused peryons, are wont to pounce on
any differences, no matter how insignificant, which may arise between
an extra curial statement
of a witness and the witness' testimony in
court. (See S v Govender and Others
2006 (1) SACR 322
(E) from 326c,
where Nepgen J gives an insightful discourse on this topic.)
The
test is: were the differences material, always bearing in mind that a
witness' testimony in court will almost without exception
be more
detailed than what the witness said in his written statement.'
[26]
I turn then to the
issue of the sentence imposed by the trial court.
[27]
The following
factors were pleaded before the trial court in mitigation of sentence
by the legal representative of the appellant:
-
The State proved no previous
convictions against the appellant; At the time of the imposition of
sentence the appellant was 37 years
old;
-
He is married;
-
He has 3 children with his wife;
-
He has 4 other children outside
his marriage;
-
His eldest child was at the time
13, and the youngest 2 years; The appellant has been unemployed from
the time of his suspension
i.e., since June/July 2003;
-
The house of the appellant had
been repossessed;
-
At the time the appellant was
residing with his mother; His wife went to stay at her parental home;
-
The children of the appellant,
except for the youngest, resided with the appellant.
[28]
In these
circumstances it cannot be said that the sentence of five years'
imprisonment was vitiated by any irregularity, or that
it was
excessive. The court took into account the prevalence of corruption
within the police force. And I might add, corruption
has become
endemic in our society.
[29]
I would make the
following order:
1.
The appeal in respect of both conviction and sentence is dismissed.
2.
The appellant's bail is revoked and he is ordered to present himself
to the Registrar of the High Court, Gauteng Division, Pretoria
within
3 (three) days of the making of this order to commence serving his
sentence.
____________________
I AGREE
NOBANDA A.J
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Counsel on behalf of
Appellant :
Adv. L.A. van Wyk
Instructed
by :
Legal Aid SA
Counsel
on behalf of Respondent :
Adv. L Williams
Instructed
by :
Director of Public Prosecutions,
Pretoria
Date
heard :
5 September 2016
Date
delivered :
14 February 2017