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[2017] ZAFSHC 59
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Rangaka and Another v S (A10/2016) [2017] ZAFSHC 59 (31 March 2017)
I
N
THE
HIGH COURT OF SOUTH
AFR
I
CA,
FREE
STATE
D
I
VISION,
BLOE
M
FONTEIN
Case
No.: A10/2016
In
the matter between:
JUSTIN
RANGAKA
1
st
Appellant
E
P
MOCHABA
2
nd
Appellant
and
THE
STATE
Respondent
CORAM:
DAFFUE,
J
et
MENE, AJ
JUDGMENT
B
Y:
MENE, AJ
HEARD
ON:
20 February 2017
DELIVERED
ON:
31 March 2017
[1]
The appellants were convicted by the Bloemfontein
Regional Court on a charge of
corruption. They were sentenced to 6 years' imprisonment. The
magistrate immediately granted them leave to appeal against
both
conviction and sentence and their bail was extended pending the
appeal. When the appeal was heard on 20 February 2017 there
was no
appearance by or on behalf of the second appellant. The appeal of the
second appellant was struck off the roll and an order
was made that
the second appellant should surrender himself to the clerk of the
magistrates' court in Bloemfontein. Accordingly
the only appeal that
is before us is that of the first appellant.
[2]
In this matter the charges against the appellants were triggered by a
complaint that was lodged by one Mr. Jonker ("Jonker").
He
was arrested on an unrelated charge of assault with intent to do
grievous bodily harm. On his appearance in court on Monday
26 March
2007 his case was postponed for a week to 2 April 2007 and he was
taken downstairs to the court holding cells where he
waited with
other prisoners to be taken to Grootvlei prison. The second appellant
came to the court holding cells and Jonker asked
him for advice
regarding legal aid to assist him with the charge he was facing. The
second appellant told him not to worry about
getting a lawyer and
that he should get R2500.00 and a plan would be made to make the
charge go away. He gave the second appellant
the cell phone number of
his sister, Ms Evelyn Martin, so that the second appellant could
liaise with her. He was subsequently
taken to Grootvlei
prison for further detention
until his
next appearance in court on 2
April 2007. Before the scheduled date of his next appearance in court
he was called by the
prison warders on Wednesday 28 March 2007 and
informed that he had received bail. He was taken to court that day
and to his surprise
the charge against him was withdrawn in court. On
his way out of court he met the second appellant who told him that
they were
waiting for an outstanding balance of R1500.00. He did not
have money to pay, but promised to pay as soon as he gets the money.
At a stage he was introduced by second appellant to first appellant.
Pressure was put on him over a period to pay the outstanding
money.
His friend advised him to report the matter to the Organized Crime
Unit. He did as advised. The Organized Crime Unit arranged
a trap
after obtaining authorization from the office of the Director of
Public Prosecutions. The trap led to the arrest of the
appellants;
hence the charge of corruption against them.
[3]
Evidence was led and oral arguments presented by both the State and
the defence. In convicting the appellants the magistrate
acknowledged
the contradictions and discrepancies in the evidence tendered by the
State. However, the magistrate was satisfied
that the evidence that
was led constituted proof beyond reasonable doubt that the appellants
indeed committed an offence of corruption.
[4]
Before I consider the specific grounds on which the appeal is brought
it is necessary to point out the following evidence which
is
uncontested (or not seriously disputed) and/or is corroborated
by objective facts:
1.
Jonker was arrested for assault with the intention to cause grievous
bodily on Saturday 24 March 2007. He appeared in court on
Monday 26
March 2007 and his case was postponed for 7 days. His next appearance
in court was therefore the following Monday on
2 April 2007. He
remained in custody. While waiting to appear in court on Monday 2
April 2007 he was requisitioned by the first
appellant to appear in
court on Wednesday 28 March 2007. The written requisition form duly
signed by first appellant on 27 March
2007 clearly stated that
Jonker's appearance at court was needed for a bail application. When
he appeared in court on Wednesday
28 March 2007 the case against him
was withdrawn and bail was not an issue at all. The front page of the
docket reveals the decision
to withdraw the case as there was no
reasonable prospect of a successful prosecution. It is dated 27 March
2007 and contains first
appellant's signature. First appellant
testified that he decided to withdraw the case for such reason.
2.
The second appellant had a conversation with Jonker in the court
holding cells and during their conversation the second appellant
mentioned that a plan would be made in respect of the case of assault
against Jonker.
3.
Jonker's sister, Ms Martin, was in court on his first appearance in
court, i.e. when the case was postponed for 7 days. She also
attended
court on Tuesday 27 March 2007 and Wednesday 28 March 2007 when
Jonker's case was eventually withdrawn. On Tuesday 27
March 2007 she
was accompanied by her friend, Ms Dollina Emerald Felix.
4.
The first appellant confirmed that he withdrew the case against
Jonker. He approached the prosecutor in the particular
court, Mr. Mahala. who was seized with the assault case against
Jonker, informing him of his decision to withdraw the case after
his
discussions with the investigating officer.
5.
After the case was withdrawn Mr. Mahala booked the assault docket
back to the liaising officer at Batho Court so that it could
be
archived as the case had been withdrawn.
6.
On the day of appellants' arrest Jonker went to court and when he
came out he made a sign, as arranged earlier with
the
arresting officer, Warrant
Officer Jordaan “Jordaan") first
appellant. that
money had been paid to the
7.
Jordaan made copies of the money to be used in the trap prior to the
arrest of the first appellant. The R100 notes - R1 500.00
in total -
were copied, five notes per copy and consequently there were three
copies of the total number of notes. These copies
were signed by
Jonker immediately after they had been made. When the first appellant
was arrested, the money found in his possession
matched the copies of
the R100 notes made earlier.
8.
The first appellant admitted seeing one copy of the R100 notes after
his arrest while he was in the police vehicle, but before
he was
taken to the police station.
9.
The assault case docket was found by the police at the residence of
the first appellant on the day of his arrest, to wit 26 April
2007.
The first appellant indicated that the docket was at his place for
decision-making.
[5]
The first leg of the appeal is based on the contradictions between
the witnesses of the State. Mr. Khang on behalf of the first
appellant argued vigorously that such contradictions were material
and that they cast serious doubt on the case of the State.
[6]
The court a
quo
dealt extensively with the
contradictions in the evidence of the State witnesses. In respect of
these contradictions the court a
quo
said the following:
"One
must
consider
the
fact
that
in
these
type
of
cases
that stretch
over
a
long period
and
where the
witnesses
are
related and close,
that witnesses do discuss events like this. It would be
strange if they did not and there is in all probability
have
been
a
cross-pollination
of events
and
of experiences
and
this pollination
must have been
weathered
away and
coloured
in by cross-examination and testimony during
the disciplinary hearings and later in court as well.
One
can conclude
this, but looking
at the
evidence
in its
totality one must take
into
account as well
that
when
you evaluate witnesses that
contradictions are
to
be,
it's
part of
the administration of
justice.
Contradictions does
not
lead
to
the automatic
rejection
of
a
witness'
evidence
and
one
can
look
at Mkogle (sic)
1990 (1) SACR 95
A.
The
teamed
Nicholas
H
C
wrote
an article
in
the South African Law
Journal
volume
1, Part
1
in February
1985
and he said that,
"most people,
few people
tell the
whole
truth.
Many
people
will tell
an
untruth
if
they
think
that
the
suppression
of
the
truth
is more important
than
that
the
court should
reach
a
correct decision."
[7]
After having dealt with the contradictions the court a
quo
found that the evidence tendered by the State implicated the
appellants and that in this respect there is a consistent thread
through
the evidence of the State witnesses.
[8]
I agree with the finding of the court a
quo.
The fact that
there are contradictions in the evidence of the witnesses does not
necessarily mean their evidence is
unreliable.
(See:
Vilakazi
v
The
State
(636/2015)
[2015] ZASCA 103
(10 June 2016) at para 18).
Contradictions
per
se
do not lead to the
rejection of a witness' evidence. They may simply be indicative of an
error. See: S
v
Mkohle
1990 1 SACR 95
(A)
at 98F-G). One has to take the evidence in totality when
evaluating it and consider
the
inherent probabilities. "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". See: S
v Chabalala
2003 (1) SACR 134
(SCA) at para 15.
[9]
"The question for determination is whether, in the light of all
the evidence adduced at the trial, the guilt of the appellants
was
established beyond reasonable doubt. The breaking down of a body of
evidence into its component parts is obviously a useful
aid to a
proper understanding and evaluation of it. But, in doing so, one must
guard against a tendency to focus too intently upon
the separate and
individual part of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in a trial
may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all
the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far
from it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But,
once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail
to see the wood for the trees." See the
dictum
quoted in S
v Mbuli
2003 (1) SACR 97
(SCA) at
page 11OF-H.
[10]
On the other hand an accused's version cannot be rejected merely
because it is improbable. It can only be rejected on the basis
of the
inherent probabilities if it can be said to be so improbable that it
cannot reasonably possibly be true. In
S v Shackell
2001 (2)
SACR 185
(SCA) at para 30 the court said:
"It
is
a
trite principle
that in criminal
proceedings
the prosecution must prove
its
case
beyond
reasonable
doubt
and
that
a
mere
preponderance
of probabilities
is not
enough. Equally
trite is the observation
that,
in
view
of
this
standard
of proof
in
a
criminal case,
a
court does not have
to
be convinced
that every detail of an accused's version is true.
If
the accused's version
is reasonably possibly
true in substance
the court must decide the
matter
on
the acceptance
of
that
version.
Of
course
it
is
permissible to
test
the
accused
’
s
version
against
the
inherent
probabilities.
But it cannot be rejected merely
because it is improbable; it can only
be
rejected on
the
basis of
inherent probabilities
if it can
be
said
to
be
so improbable
that
it
cannot
be
reasonably
possibly
true."
See also:
Olawale v
The
State
[2010] 1All SA 451
(SCA) at para 13.
[11]
Jonker1s version that he spoke to the second appellant while he was
in the court holding cells and that the second appellant
said to him
that he (Jonker) should not worry, a plan would be made, is
corroborated to an extent by Ms Martin who confirmed the
call from
second appellant and the eventual handing over of the R1 000.00. The
two appellants colluded to have the matter withdrawn
on receipt of
the money. I say so because subsequent to the conversation between
Jonker and the second appellant, and before the
next scheduled date
of Jonker's appearance in court, Jonker was requisitioned by the
first appellant to appear in court where his
case was withdrawn.
[12]
It can also not be disputed that Ms Martin went to court on Tuesday
27 March 2007 while Jonker was still in Grootvlei. Why
would she go
to court when she knew that the case was postponed to 2 April 2007?
She was present when the case was postponed to
2 April 2007. The only
plausible and probable explanation is that she was busy with the
arrangements to let the case against Jonker
go away. Soon after her
visit in court on Tuesday Jonker appeared in court the following day.
This did not happen in vacuum; it
was as a result of the conversation
that took place between Jonker and the second appellant while Jonker
was in the court holding
cells. This conversation culminated in the
second appellant calling Ms Martin after Jonker had given the second
appellant her cell
phone number and an amount of R1000.00 being paid
on that Tuesday. The money was paid over to second appellant after
she had met
first appellant and on his instruction. This happened in
the presence of Ms Felix, the friend that accompanied Ms Martin.
[13]
Although the evidence of the State was not without blemish on the
events that unfolded when the first appellant was arrested,
there is
evidence that stands out which proves its veracity. This evidence
relates to the undisputed evidence that Jonker went
to court on 26
April 2007 to carry out the trap that was authorized by the office of
the Director of Public Prosecution. He had
in his possession money
(R1 500.00) that was outstanding in terms of the arrangements with
the appellants. This money was supposed
to be given to the first
appellant. After handing the money to the first appellant and in
accordance with what he was instructed
to do by Jordaan, he raised
his hand to show that indeed the money was given to the first
applicant. When the police (Jordaan and
Jacobs) pounced on the first
appellant, money was found in his possession and this money matched
the photocopied R100 notes. The
version of the first appellant that
Jordaan put the money in his pocket whereafter he took it out again
is improbable and untrue.
I say this for the following reasons: (i)
when the first appellant was searched in his office, other people,
including lawyers,
were present. Some of them were called by the
first appellant as his witnesses. However these witnesses gave
evidence that they
did not notice Jordaan putting money in the pocket
of the first appellant; (ii) Jordaan had copies of the R100 notes
with him although
he could not find the third of the three copies in
his vehicle immediately after arrest. Jordaan's version is confirmed
by the
first appellant who saw one copy of R100 notes while in the
vehicle of Jordaan before they went to the police station. The first
appellant also confirmed that Jordaan was looking for the third copy
that was apparently missing under the seats of the vehicle.
The
version of the first appellant that Jordaan only made copies of the
money when he arrived at the police station is improbable
and not
reasonably possibly true, the reason being that he admitted seeing at
least one copy before they went to the police station.
Even though
the first appellant said in his evidence that Jordaan was busy making
copies at the police station, he could not see
what Jordaan was
copying and Jordaan's explanation should be accepted as the truth;
(iii) all three copies of the R100 notes were
signed by Jonker before
they proceeded to the court. It was impossible for Jonker to have
signed the copies at the police station
after the arrest of the first
appellant as he had left after handing the money to the first
appellant.
[14]
The other evidence that stands out despite the inconsistencies and
contradictions in the evidence of the state is the docket
that was
found at the residential place of the first appellant. This docket
relates to the criminal case of assault that was opened
against
Jonker. The reason, which is quite improbable and not reasonably
possibly true, that was given by the first appellant on
why the
docket was at his place, was that it was for decision-making. On the
day of the arrest of the first appellant, the decision
had long been
taken by the first appellant to withdraw the case against Jonker and
it was indeed withdrawn. The magistrate, whilst
recognising the
inconsistencies and contradictions in the versions of the State
witnesses made the following finding at page 712:
''Accused
1 in his testimony said that it was a decision docket but that is not
convincing because why would you keep a docket as
a decision docket
if you have already decided to withdraw it? There was, on the
evidence before me there was no query raised by
the complainant in
this docket against Mr. Jonkers, nor did the investigating officer
have a problem with it so why should it be
kept with him to
reconsider?
When
one considers
this improbabilities
then
one must
find
Mr. Jonkers'
evidence consistent,
because
he
says,
and it
must
be
plausible
but he said no
the docket was
kept by him because he threatened,
"if
you
don't pay
me it would be re-opened"
and that is
consistency throughout"."
[15]
The finding by the magistrate cannot be faulted. It is consistent
with the evidence that was tendered. It is indeed so that
Jonker
throughout his evidence said he was pressured and threatened that if
he did not pay, the case would be re-opened against
him. It is
probable that the first appellant managed to get hold of the docket
so that he could put pressure on and threaten Jonker.
This is the
docket that was sent to archives by the prosecutor, Mr Mohala, who
was seized with it after the first appellant had
approached him to
withdraw the case. We were implored by Mr. Khang to reject the
evidence of the State witnesses due to the contradictions
in their
evidence. I am unable to agree with him and I do not see that as a
proper basis for the rejection of the State evidence.
It is
unthinkable that Jonker, a free man, would accuse his saviour, the
first appellant, of corrupt activities in a situation
where he
decided to withdraw the case against him for lack of prospects of a
successful prosecution. The established facts which
stand out, in my
view, make out an overwhelming case against the first appellant
beyond any reasonable doubt. On the other hand
the version of the
first appellant is riddled with inherent improbabilities and stands
to be rejected .
[16]
I now turn to the second leg on which this appeal is based. This
relates to a trap which does not comply with the provisions
of
s 252A
of the
Criminal Procedure Act 51 of 1977
and therefore unlawful. In
oral argument Mr. Khang, on behalf of the first appellant, contended
that there were discrepancies in
the document that gave authority to
the police to conduct a trap. These discrepancies relate to the
document not stating the person
who was supposed to be trapped; the
target was not described; the provisions of the Act were not
followed; and that the police
acted outside the authority that was
given to them.
[17]
At the outset I must point out that the document which is the subject
matter of the complaint regarding a trap does not form
part of the
record. Despite the parties being requested to provide it after oral
arguments were heard, they failed to do so. However
my view is that
despite this document, this point can still be determined in its
absence. Firstly, I must raise a concern that
the first appellant did
not raise this point at the beginning of the trial so that it could
be determined in a trial within a trial.
The representative of the
first appellant did not ask the magistrate to make a ruling on it.
Even though Jordaan was cross examined
on it, at no stage was the
magistrate asked to make a ruling on it.
[18]
Be that as it may, it is proper for me to deal with it as it has been
raised. I must say that I did not understand Mr. Khang
contending
that the evidence that was led in respect of the trap violated the
rights of the first appellant; neither did I understand
him to say it
rendered the trial unfair. Mr. Khang did not even say which aspects
of the evidence relating to the trap should be
excluded save for the
discrepancies that has been mentioned above. I must indicate that it
would be preposterous to exclude the
whole evidence of witnesses who
testified with regard to the issue relating to the trap.
[19]
A trap is defined in
S
v
Malinga
and
Others
1963 (1) SA 692
(A)
as 'a person who, with a view to securing the conviction of another,
proposes certain criminal conduct to
him, and himself ostensibly
takes part therein. In other words he creates the occasion for
someone else to commit the offence.'
[20]
The authority to make use of traps and the admissibility so obtained
is governed by
s 252A
of the
Criminal Procedure Act, 51 of 1977
.
Section 252A(1)
states that any law enforcement officer, official of
the State or any other person authorized thereto for such purpose
(hereinafter
referred to in this section as an official or his or her
agent) may make use of a trap or engage in an undercover operation in
order to detect, investigate or uncover the commission of an offence,
or to prevent the commission of any offence, and the evidence
so
obtained shall be admissible if that conduct does not go beyond
providing an opportunity to commit an offence: Provided that
where
the conduct goes beyond providing an opportunity to commit an offence
a court may admit evidence so obtained subject to subsection
(3).
Subsection 3 provides as follows:
"(a)
If a court in any criminal proceedings finds that in setting of
a trap or the engaging in an undercover operation
the conduct goes
beyond providing an opportunity to commit an offence, the court may
refuse to allow such evidence to be tendered
or may refuse to allow
such evidence already tendered, to stand, if the evidence was
obtained in an improper or unfair manner and
that the admission of
such evidence would render the trial unfair or would otherwise be
detrimental to the administration of justice.
(b)
When considering the admissibility of the evidence the court shall
weigh up the public interest against the personal
interest of the
accused, having regard to the following factors, if applicable:
(i)
The nature and seriousness of the offence, including - (aa) Whether
it is of such a nature and of such
an extent that the security of the
State, the safety of the public, the maintenance of public order or
national economy is seriously
threatened thereby;
(bb)
Whether, in the absence of the use of a trap or an undercover
operation, it would be difficult to detect, investigate, uncover
or
prevent its commission;
(cc)
Whether it is so frequently committed that special measures are
required to detect, investigate or uncover it or to prevent
its
commission; or
(dd)
Whether it is so indecent or serious that the setting of a trap or
the engaging of an undercover operation was justified;
(ii)
The extent of the effect of the trap or undercover operation upon the
interests of the accused, if regard is had
to -
(aa)
The deliberate disregard, if at all, of the accused's rights or any
applicable legal and statutory requirements;
(bb)
The facility, or otherwise, with which such requirements could have
been complied with, having regard to the circumstances
in which the
offence was committed; or
(cc)
The prejudice to the accused resulting from any improper or unfair
conduct;
(iii)
The nature and seriousness of any infringement of any fundamental
right contained in the Constitution;
(iv)
Whether in the setting of a trap or the engagement of an undercover
operation the means used was proportional to the
seriousness of the
offence; and
(v)
Any other factor which in the opinion of the court ought to be taken
into account."
[21]
The first point taken by the first appellant is that the authority
that has been given by the DPP does not mention the name
of the
person who was supposed to be trapped and his description was not
given. It was not disputed that a trap was authorized
by the OPP.
This brings into the picture the provisions of s 252A(4) which
provides that an Attorney General (now the OPP)
may issue
general or specific guidelines regarding the provision and control of
traps and undercover operations. My understanding
of the said
provision is that general or specific guidelines should be issued. In
my view the section does not say the precise
or specific details of
the person to be trapped or his description should be given. The OPP
can give general guidelines as is the
case
in
casu. Even if
the specific details or description of the target was required to be
provided in the authorization, this is not fatal
to the trap that was
carried out. The evidence shows that Jonker who was the trap knew the
people who he was dealing with. It was
not expected of him to give
the money to any other person than the first appellant. This is the
authority that was given to him.
[22]
In respect of failure to follow the provisions of the Act, it is not
clear which provisions of the Act were not followed by
the police.
The evidence before us does not show that the police or the trap went
beyond providing an opportunity to the first
appellant to commit
crime. The commission of crime had already commenced when an amount
of R1000.00 was paid on behalf of Jonker
so that his criminal case
could be made to go away. There was an outstanding amount of R1500.00
that Jonker was supposed to pay
and this resulted in pressure being
put to him. He was also threatened that if he did not pay the
outstanding balance, the case
would be re opened. The
police did not play an active role in the commission of offence.
See:
S
v
Makhanya and
Another
2002 (3) SA 201
(N).
[23]
The finding by the magistrate in respect of the trap is correct. The
magistrate said the following on page 713 of the record:
"T
h
en
as
far
as
the
trap
procedure
is
concerned
I
must
just mention
that
neither parties
had applied or required
me
to
make
a
separate
ruling
in
respect
of
the
trap.
Although
Mr
Jordaan
was
questioned
about this, the
jist
of
his evidence is that he did not
plan
this
operation,
it
was,
or
did
he
not
initiate
it,
it
was
initiated
by,
when
Mr.
Jonker came to see
him but
Mr.
Jonker's
evidence as I
have said is that this incident
when he was
approached
by the accused,
so it's not
something,
it didn't start from the police
side,
it was already in motion
from the accused, and
therefore the evidence of the trap is admissible."
[24]
As I pointed out in paragraph 16 above, I did not understand Mr.
Khang as saying that certain portions of evidence tendered
on behalf
of the State should be excluded as they rendered the trial to be
unfair. This would then dispose of the complaints that
have been
raised in respect of the trap. In the event that I misunderstood the
argument of Mr. Khang and that in fact the evidence
relating to trap
should render the trial unfair or that the evidence was obtained
improperly and therefore should be excluded,
I proceed to deal with
such aspect on the assumption that it was raised. In this respect the
court is enjoined to consider subsection
252A(3) which is quoted
above.
[25]
In respect of the nature and seriousness of the offence, there is no
doubt that corruption is a serious offence and rife in
South Africa.
In
S v Mahlangu
2011 (2} SACR 164
at para 26 the Supreme Court
of Appeal said the following:
"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
comers
of
society
against
corruption
which
nowadays
seems
fashionable.
Some
even
go
as
far
as
stating
that
corruption
is
rendering
the
State
dysfunctional".
Bearing in mind the extent of
the effect of the trap upon the interests and rights of the first
appellant, there is no evidence
and it was not suggested that the
interests and rights of the first appellant were violated. In actual
fact it was only the document
that authorized the trap that was
challenged. On the question as to whether the admission of the
evidence would render the trial
unfair, in breach of s 35(3) of the
Constitution, this was not the case or the argument that was advanced
by Mr. Khang on behalf
of the first appellant. I must say this is not
surprising considering the defence of the first appellant that he was
not involved
in the commission of corruption and that no trap money
was found in his possession, save for the money put in his pocket by
Jordaan.
Should he have admitted that indeed trap
money was found in his possession, this would have flown in the face
of his defence. On whether in the setting of the trap the means used
was proportional to the seriousness of the offence, I have
already
said that the crime had already commenced and the only thing I
believe the police wanted to do, was to catch the first
appellant
red-handed. In my view, it cannot be said that the setting of the
trap was in any way out of proportion to the seriousness
of the
offence which first appellant was intent upon committing. Having said
so, the admission of the evidence of the trapping
at the trial of the
first appellant did not render the trial unfair. It was also not
detrimental to the administration of justice.
[26]
In view of what I have discussed above, the first appellant fails on
the second leg of his appeal.
[27]
I turn now to the third leg of the appeal which relates to the
sentence imposed on the first appellant. When sentencing the
first
appellant the magistrate took into account all the factors, which
included the personal circumstances of the first appellant.
There are
no misdirections that were relied upon in support of the appeal
against sentence and I do not see any. The sentence is
also not so
severe as to suggest that the magistrate failed to properly exercise
his discretion. In my view there are no proper
grounds upon which to
interfere with the sentence. Therefore the appeal against the
sentence should fail as well.
[28]
In conclusion it is my view that the State has proven its case beyond
reasonable doubt and that the sentence imposed is appropriate.
Therefore the appeal against conviction and sentence should be
dismissed.
[29]
Accordingly, the following orders are made:
1.
The appeal against conviction and sentence is dismissed.
2.
The conviction and sentence imposed by the court a
quo
are
confirmed.
_______________________
B.S.
MENE, AJ
I
concur.
_______________________
J.P.
DAFFUE, J
On
behalf of first appellant: M. Khang
Instructed by:
Mphafi Khang Inc.
BLOEMFONTEIN
On
behalf of the respondent: Adv. E. Liebenberg
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN