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[2018] ZASCA 139
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Famanda v S (930/2017) [2018] ZASCA 139 (28 September 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 930/2017
In
the matter between:
MESHACK
FAMANDA
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Famanda v State
(930/2017)
[2018] ZASCA 139
(28 September 2018)
Coram:
Maya P and Van der Merwe JA and
Nicholls AJA
Heard:
4 September 2018
Delivered:
28 September 2018
Summary
:
Appeal against refusal of petition for leave to appeal against
sentence; trial court did not take into account the amount involved
and whether the appellant was a law enforcement officer as defined;
reasonable prospects of success on appeal against sentence.
ORDER
On
appeal from:
Gauteng Local Division of
the High Court, Johannesburg (Mokgoathleng J and Mosopa JA):
1 The appeal succeeds.
2 The order of court a quo is set aside and substituted with the
following order:
‘
The
appellant is granted leave to appeal against the sentence imposed by
the Regional Court, Johannesburg to the Gauteng Local Division
of the
High Court, Johannesburg.’
JUDGMENT
Nicholls
AJA (Maya P, and Van Der Merwe JA concurring):
[1]
This is an appeal against the refusal of a petition for leave to
appeal by the Gauteng Local Division of the High Court, Johannesburg.
The appellant, a prosecutor employed with the National Prosecuting
Authority, was convicted of corruption in contravention of s 9(1)
(a)
of the Prevention and Combating of Corrupt Activities Act 12 of
2004
[1]
(the PCCA Act), in the Johannesburg Magistrates
Court on 30 November 2015.
The appellant
was sentenced to 10 years imprisonment.
[2]
Leave to appeal against conviction and sentence was refused by the
Magistrate’s Court. A petition for leave to appeal
against
conviction and sentence was refused by the High Court. Special leave
was subsequently granted by this court in respect
of sentence only.
[3]
It is well established that what is to be determined at this stage is
not the appeal itself but whether the High Court should
have granted
the appellant leave to appeal.
[2]
What is appealed against is the refusal of the
petition to the High Court and nothing else. It has been acknowledged
that this is
a cumbersome procedure. However, despite the court’s
inherent jurisdiction to regulate its own processes this court has
held
that it can only do so within the confines of statutory
jurisdiction.
[3]
[4]
In determining whether the High Court erred in refusing the appellant
leave to appeal on sentence, the only issue is whether
there are
reasonable prospects of success. What this entails has been set out
in
S v Smith
2012 (1) SACR 567
(SCA) para 7, and quoted with approval in
subsequent cases:
[4]
‘
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a
court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore, the
appellant
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote, but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of
success, that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be
a sound, rational basis for
the conclusion that there are prospects of success on appeal.’
(Footnote omitted).
[5]
In this case the appellant, together with two policemen, was
arraigned as a result of an undercover operation carried out at
the
Randburg Magistrate’s Court. Numerous complaints had been
received of corrupt activities involving magistrates, prosecutors
and
court orderlies in that court. This led to the police approaching the
Director of Public Prosecutions for the requisite authority
to set up
an undercover operation at the court in order to trap the officials
involved.
[6]
Pursuant thereto a police undercover agent was arrested on a
fictitious charge and detained in the court cells at the Randburg
Magistrate Court. He paid two policeman employed as court orderlies,
accused 1 and 2 in the trial court, an amount of R800 to secure
his
release from custody. Thereafter, another police undercover agent,
posing as the girlfriend of the arrestee, approached accused
1 at the
court to get the charge quashed. She was referred to the appellant,
accused 3 in the trial court, who was prosecuting
the case. Upon
payment of R3500 to accused 1, the charge was duly withdrawn. The
‘girlfriend’ video-taped the communication
between
herself and the policemen, and herself and the appellant. These were
the salient facts leading to the conviction of the
two policemen and
the appellant in terms of the PCCA Act.
[7] The
accused were all sentenced in terms of the minimum sentencing
legislation. Section 51(2) of the Criminal law Amendment Act
105 of
1997 (the Act) provides for a minimum sentence of 15 years
imprisonment, for a first offender, in respect of an offence
referred to in Part II of Schedule 2. The relevant portion of the
schedule provides that:
‘
Any
offence relating to exchange control, extortion, fraud, forgery,
uttering, theft, or an offence in Part 1 to 4, or section 17,
20 or
21 (in so far as it relates to the aforementioned offences) of
Chapter 2 of the Prevention and Combating of Corruption Activities
Act, 2004 –
(a)
involving
amounts of more than R500 000,00;
(b)
Involving
amounts of more than R100 000,00, if it is proved that the offence
was committed by a person, group of persons, syndicate
or any
enterprise acting in the execution or furtherance of a common
conspiracy; or
(c)
If
it is proved that the offence was committed by any law enforcement
officer –
(i) involving amounts of more
than R10 000,00; or
(ii) as a
member of a group of persons, syndicate or any enterprise acting in
the execution or furtherance of a common conspiracy
.’
[8]
Accused 1 was sentenced to 15 years imprisonment. The appellant and
accused 2 were each sentenced to 10 years imprisonment,
the trial
court having found substantial and compelling circumstances
justifying the imposition of a lesser sentence than the prescribed
minimum. Although not set out in so many words, it is clear that the
trial court sentenced the appellant in terms of (c)(ii) above,
namely
on the basis that the appellant was a law enforcement officer who
acted in furtherance of a common conspiracy with the two
police
officers. Paragraphs (a) and (b) were clearly not applicable to the
appellant.
[9]
Most of the personal information regarding the appellant was gleaned
from a pre sentencing report. The appellant left school
in 1997,
completed a Diploma in Marketing at the Wits Technical School in 2001
and a Bachelor of Laws degree at the University
of Johannesburg in
2007. He secured employment at the National Prosecuting Authority
where he remained until after his arrest in
2011. Between the time of
his arrest and his sentencing on 10 February 2016, he worked as an
administrative clerk for a firm of
attorneys at a reduced salary.
He has a previous conviction for illegal possession of a firearm in
1997 for which he was
given a suspended sentence.
[10]
The trial court in finding that substantial and compelling
circumstances were present, took into consideration that the
appellant
was a 37 year old father of two at the time of sentencing.
He has two daughters, then aged 6 and 7 years old. Both children live
with their respective mothers and are recipients of child grants. He
nonetheless was said to have a good relationship with at least
one of
the children, whom he sees on weekends. The appellant provided
financial support to both children whose mothers are unemployed.
On
this basis the trial court found that the appellant was the primary
caregiver, providing both financial and emotional support
to the
children. I am unpersuaded that the appellant could be described as a
primary caregiver in these circumstances.
[11]
There can be no doubt that the trial court was deeply concerned, and
quite correctly so, that the image of the National Prosecuting
Authority had been tarnished and the administration of justice had
been brought into disrepute, by the appellant’s actions.
The
crime induced a ‘sense of revulsion’ particularly because
it had been committed in the court precinct which should
be a symbol
of justice. Instead the appellant made a mockery of the criminal
justice system.
[12]
As reprehensible as the appellant’s conduct was, it cannot be
ignored that the amount involved was R3500. Of this,
it is
unclear how much the appellant personally benefitted. I cannot agree
with the view of the trial court that ‘corruption
is
corruption’ irrespective of the amount involved and it is the
criminal intent that is punishable. Logic dictates that
corruption
involving millions of rand should be viewed in a more serious light
than that involving a few thousand rand. That there
are degrees of
fraud and corruption, depending on the amounts involved, is a
distinction acknowledged in the Act itself. In my
view the appellant
has a reasonable prospect of showing that the trial court misdirected
itself in this regard or that the sentence
was startlingly
inappropriate.
[13]
In addition no consideration was given to whether the appellant was a
‘law enforcement officer’ within the meaning
of the Act.
Section 51(8) of the Act provides:
‘
For
the purposes of this section and Schedule 2, “law enforcement
officer” includes
–
(
a
) a member of the
National Intelligence Agency of South Africa or the South African
Secret Service referred to in section 3 of the
Intelligence Services
Act, 2002 (Act No. 65 of 2002); and
(
b
)
a correctional official of the Department of Correctional Services
or a person
authorised under the Correctional Services Act, 1998 (Act No. 111 of
1998).’
[14]
Law enforcement officer is a term imported from North America and
there is very little reference to ‘law enforcement
officer’
in South African statutes.
[5]
In America it is defined as ‘a government
employee who is responsible for the prevention, investigation,
apprehension or detention
of individuals suspected or convicted of
offences against the criminal laws, including an employee engaged in
this activity who
is transferred to a supervisory or administrative
position, or serves as a probation or pre-trial officer’.
[6]
The Collins English Dictionary describes a law
enforcement officer as ‘an official or employee who detects
crime and who upholds
the law, such a police officer, sheriff,
customs official etc.’
[15]
There can be little doubt that a law enforcement officer in terms of
s 51(8) of the Act includes a police officer. ‘Include’
is generally used in the interpretation of statutes to expand the
meaning of the words or phrases occurring in the preceding section.
It is a phrase of extension and not of restrictive definition.
However, ‘include’ is susceptible to another construction
in the context of the statute which does not merely add to the words
expressed, but may be equivalent to ‘mean and include’
in
which instance it connotes an exhaustive explanation of the meaning
which must be attached to these words or expressions.
[7]
In other words depending on the context in
which the word ‘includes’ is used, it may have vastly
differing effects.
Depending on context, it may mean to expand the
preceding words in the phrase, or to define them exhaustively. There
is a reasonable
prospect that the appellant may show that a member of
the prosecuting authority is not included in the definition of ‘law
enforcement officer’ and accordingly no minimum sentence would
be applicable.
[16]
For the two reasons set out above I am of the view that there are
reasonable prospects of success on appeal.
[17] In
the result I make the following order:
1 The appeal succeeds.
2 The order of court a quo is set aside and substituted with the
following order:
‘
The
appellant is granted leave to appeal against the sentence imposed by
the Regional Court, Johannesburg to the Gauteng Local Division
of the
High Court, Johannesburg.’
_________________
C H Nicholls
Acting Judge of Appeal
APPEARANCES:
For the
Appellant: W A Karam
Instructed
by: Legal Aid, Johannesburg
Legal
Aid, Bloemfontein
For the
Respondent: I Bayat
Instructed
by: Director of Public Prosecutions, Johannesburg
Director
of Public Prosecutions, Bloemfontein
[1]
9. Offences in respect of corrupt activities
relating to members of prosecuting authority.
(1)
Any
–
(
a
) member of the prosecuting authority who, directly or
indirectly, accepts of agrees or offers to accept any gratification
from
any other person, whether for benefit of himself or herself or
for the benefit of any other person;
. . .
is guilty of the offence of corrupt activities relating to members
of the prosecuting authority.
[2]
S
v Khoasasa
2003 (1) SACR 123
(SCA)
paras 14, 19-22;
S v Matshona
[2008] ZASCA 58
;
[2008] 4 All SA 68
(SCA) para 4;
S
v Smith
[2011] ZASCA 15
;
2012 (1) SACR
567
(SCA) paras 2 and 3;
Dipholo v S
[2015] ZASCA 120
para 4;
S v Tonkin
2014 (1) SACR 583
SCA (
Tonkin
)
paras 6.
[3]
Id
Tonkin
para
6;
Van Wyk v S, Galela v S
2015
(1) SACR 584
(SCA) para 20 – 21.
[4]
Essop v S
[2016]
ZASCA 114
(12 September 2016);
Maphapa
v S
[2018] ZASCA 8
March 2018.
[5]
Section 252A(1)
of the
Criminal Procedure Act 51
of 1977
states that ‘[a]ny law enforcement officer, official
of the State, or any other person authorised thereto for such a
purpose
. . . may make use of a trap’.
Section 1
of the
Regulation of Interception of Communications and Provision of
Communication-Related Information Act 70 of 2002 defines
‘law
enforcement officer’ to mean any member of –
‘
(
a
)
the Police Service;
(
b
) the Defence Force, excluding a member of a visiting
force;
(
c
) the Agency or Service;
(
d
) the Directorate; or
(
e
)
any component referred to in
paragraph (e) of the definition of “law enforcement agency”’.
‘Agency’, as found in (c) above,
means agency as defined in
s 1
of the
Intelligence Services Act. The
definition of service, as found in (c) was deleted. Paragraph (e) of
the definition of law enforcement agency reads ‘law
enforcement agency means . . . any component of the prosecuting
authority, designated by the National Director to specialise
in the
application of Chapter 6 of the Prevention of Organised Crime Act’
.
[6]
KE Lioe
Armed Forces
in Law Enforcement Operations – The German and European
Perspective
(2011) at 168.
[7]
Stroud’s Judicial Dictionary of Words and
Phrases 7
th
edition volume 2.