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[2017] ZANCHC 15
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Setlholo v S (CA&R60/14) [2017] ZANCHC 15; 2017 (1) SACR 544 (NCK) (3 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
[NORTHERN
CAPE DIVISION, KIMBERLEY]
Reportable
NO
Circulate
to Judges
YES
Circulate
to Magistrates
YES
CASE NO: CA & R 60/14
In
the matter between:
KABELO
SETLHOLO
APPELLANT
AND
THE
STATE
RESPONDENT
Coram:
Tlaletsi J
et
Phatshoane J
Date of hearing: 13
December 2016
Date
of judgment: 03 March 2017
JUDGMENT:
APPEAL AGAINST THE SENTENCE
Phatshoane
J
[1]
On 23 October 2013 the appellant was convicted on one count of
corruption and one of fraud in the Regional Court, Kimberley,
by Mr D
J Schneider. On 16 January 2014 he was sentenced to 10 years
imprisonment, three years of which were suspended for a period
of
five years on certain conditions. The two counts were taken together
for purposes of the sentence.
[2]
The appellant had approached this Court to appeal his conviction and
sentence with leave of the Court
a
quo
.
On 19 June 2015 we handed down the judgment dismissing the appeal
against his conviction. We did not entertain the appeal against
the
sentence for reasons captured as follows in para 43 of our judgment:
“
The
heads of argument filed by the parties included submissions on
sentence. It would appear that this was done under the mistaken
understanding that leave to appeal against the sentence had been
granted. However, when the judgment of the Court
a
quo
on the application for leave to appeal was later made available to
this Court, at our request, it revealed that the appellant was
refused leave to appeal against his sentence. No attempt was made
thereafter by the appellant to obtain leave to appeal against
his
sentence with the result that the appeal on the sentence is not
before us.”
[3]
On 11 July 2016 the appellant filed a petition with the Judge
President of this Division averring therein that the Regional
Magistrate had in fact granted leave to appeal against the sentence
as well. He attached to his petition a letter from the Magistrate
dated 09 June 2016 which reads in part:
“
5.
Die Staatsadvokaat, adv Barnard en Adv Schreuder [for the appellant]
het my op ‘n
stadium in kamers genader, en my van die situasie
ingelig. Ek is versoek om indien moontlik, op ‘n spoedeisende
basis die
rede vir my beslissing te verkaf.
6.
Angesien die hele ookonde reeds by die Hoёr Hof was, het ek my
handgeskrewe hof-notas
op die saak getrek, en daarvolgens my redes
vir die toestaan van die aansoek om verlof tot appel ten opsigte was
die meriete op
skrif gestel. Ek het ewenees volgens die inligting uit
my handgeskrewe notas die afleiding gemaak dat ek die aansoek om
verlof
tot appel teen die vonnis afgewys het, en dit so op my redes
aangedui.
Ek
is op ‘n latere stadium deur Adv Schreuder ingelig dat daardie
mening foutief was, en dat ek inderdaad die aansoek om verlof
tot
appel teen die vonnis toegestaan het. Die advokaat het ‘n
afskrif van die Streekhof saak-notule (wat toe nie meer by
die
Landroshof beskikbaar was nie), aan my aangetoon wat daarop dui dat
die aansoek t.o.v die vonnis inderdaad toegestaan was.
Ek het hierna
die appelregister nagegaan, en dit was inderdaad daar aangedui dat
die aansoek om verlof tot appel ook ten opsigte
van die vonnis
toegestaan was.
7.
Ek wil dus graag hiermee die regstelling doen, en naamlik bevestig
dat die aansoek om verlof
tot appel ook teen die vonnis toegestaan
was.
8.
Ek wil graag my verskoning aanbied vir die
bona
fide
fout wat ingesluip het.”
[4]
On the basis of the aforesaid letter we heard the arguments in
respect of the appeal against the sentence on 13 December 2016.
It is
apposite to mention that on 10 September 2015 Erasmus AJ made an
order, by agreement between the parties, in terms of which
the
appellant was admitted to bail pending this appeal.
[5]
Just to recap: On 28 February 2007 the appellant and his allies
misrepresented to Mr Marthinus Bredenkamp, the complainant,
that they
were executing a lawful police operation and that he had committed
and was being arrested for an offence relating to
dealing in uncut
diamonds while they knew that their so-called police operation was a
sham and that the complainant had not committed
any offence. It did
not end there. They offered the complainant his liberty and that a
police docket, for the engineered offence,
would be handed over to
him in exchange of an amount of R50 000.00.
[6]
What follows in a nutshell is how the commission of the crime
unfolded. The complainant accompanied Mr Jack Mvubu, accused No
3, to
a certain house in Club 2000, a township near Kimberley, where he was
shown what appeared to be diamonds on a saucer. At
that moment
certain aggressive people with 9 mm pistols stormed the house. One of
them, who was not in possession of a pistol,
was wearing South
African Police Service (SAPS) uniform. He had a name “Modise”
embossed on his name tag. The aggressive
men assaulted those who were
in the company of the appellant and threw the latter on the bench,
took his cellular phone, and the
R200.00 he had in his possession.
The man in the police uniform announced that the value of the
precious stones found at the scene
was R1.3 million and that the
sentence to be imposed would be determined on that basis. He
threatened the complainant with an arrest
unless he made a plan. The
complainant made an offer of R5 000.00 which was rejected and
R50 000.00 was demanded from
him. The “Captain” went
on to inform the complainant that the docket had not yet been opened
and that he should secure
the amount demanded.
[7]
The appellant, who had been present at the scene, and some of the
assailants drove with the complainant to the First National
Bank
where the complainant managed to withdraw R10 000 and handed it
over to the appellant. The balance of R40 000.00
would have to
be paid later when the docket was delivered to the complainant.
[8]
In the interim, the complainant reported the misdemeanour by the
appellant and his accomplices to a certain Mr Dirk Crafford
of the
Bloemfontein Diamond and Gold Unit. Grafford and other police
officers including the Kimberley Diamond and Gold Unit arranged
a
further police operation the purpose of which was to arrest the
appellant when collecting the balance of the unlawful proceeds
from
the complainant. On the date in respect of which the balance was to
be paid out the appellant called the complainant several
times
enquiring about his whereabouts. As part of the operation the
complainant had to signal the police when the appellant was
in his
vehicle during the exchange of the money and the docket. When he
signalled the police they pounced on them at which point
the
appellant decamped. He was later arrested and an empty bogus docket
confiscated by the police.
[9]
The appellant passed grade 12 at school. Shortly thereafter he
studied for an engineering Diploma but dropped out of College
after
two years of studying. He attended the Police College for a period of
five months from September 2003 until in the beginning
of 2004. He
was a 27 year old police constable in 2007 when he committed the
offences. It is recorded in the probation officer’s
report that
he worked for SAPS for 10 years. He continued working as a policeman
during his trial but lost his job following his
conviction. He was a
first offender. When he was sentenced on 16 January 2014 he had a 14
year old son for whom he contributed
towards maintenance but was not
his primary care-giver. The appellant resides with his mother who is
frail and receiving a State
pension. His father passed away in 2012.
He has three elder siblings. He is described in the probation
officer’s report as
a friendly person who relates well to his
family and the community.
[10]
Mr C. F. Van Heerden, for the appellant, argued that the sentence of
10 years imprisonment for the youthful offender was shockingly
inappropriate. He contended that direct imprisonment is not the only
suitable sentence to be meted out for the offences committed
and that
there are other sentencing options which could have been imposed by
the trial Magistrate. He further argued that a period
of 10 years has
lapsed since the commission of the offences and the appeal. In view
of this, he contended, the appellant remained
under a cloud with
concomitant emotional stress, time spent in the Courts and on
occasions in prison. He pointed out that the appellant
spent two
months in prison following his arrest and three weeks following his
conviction. He argued that the appellant did not
commit any serious
offence or any related offences during the 10 year period and that
makes him an ideal candidate for rehabilitation
outside prison. He
further submitted that the chances were slim that he would commit a
similar offence.
[11]
Mr Van Heerden argued that the term of imprisonment imposed in this
case materially differed from the sentences imposed in
other
comparable cases. He relied on the following case law:
11.1
S v Newyear
1995 (1) SACR 626
(A), where a constable was
convicted in a Regional Court of contravening s 2(a) of the
Prevention of Corruption Act, 6 of 1958,
and sentenced to seven
years' imprisonment, of which two years were conditionally
suspended. On appeal the sentence was reduced
to four years'
imprisonment of which two years were suspended.
11.2
S
v Mtsi
1995
(2) SACR 206
(W), where
t
he
appellant was convicted in a Regional Court of corruption in
contravention of s 1(b)(i) of the Corruption Act,
94 of 1992. The appellant, a Bank clerk, had divulged the
account numbers of two customers of the Bank to an acquaintance
who
used the information to draw R36 000.00 from the accounts of
those customers. The appellant received R3 500.00
in
exchange for the information. He was sentenced to four years'
imprisonment of which two years were suspended on certain
conditions.
On appeal the Court set aside the sentence and replaced it with a
sentence of four years' imprisonment suspended for
five years on
condition
inter
alia
that she underwent correctional supervision in terms of s
276(1)(h) of the Criminal Procedure Act, 51 of 1977 (the CPA),
for a
period of three years during which she was placed under house arrest;
that she was obliged to perform 16 hours of community
service every
month; and was obliged to undergo any programme which the
Commissioner might determine for her rehabilitation.
In
setting aside the sentence the Court reasoned that the appellant was
genuinely remorseful about her crime. She was part of a
close family
circle, which deplored what she had done. She had a young child who
required her attention and an old ill grandmother
whom she assisted.
11.3
S
v Mogotsi
1999 (1) SACR 604
(W), where a sentence of four years imprisonment
two years of which were suspended for two years was imposed on a 30
year old traffic
officer who was a first offender and had accepted
R100.00 from a motorist in exchange for the “cancellation”
of the
summons. He then
changed
the motorist's registration number and the address details on the
other copies of the summons in order to cover his
tracks and
ensure that the motorist could not be traced.
11.4
S
v Kasselman en 'n Ander
1995
(1) SACR 429
(T), where two policemen were convicted in a Regional
Court of theft and of obstructing the course of justice. These
officers
had received R400 000 in cash from the police head office
for use in a police trap. They simulated a robbery and laid a false
charge
of robbery. Subsequent to this, they returned R335 000
to the police. They were sentenced to five years'
imprisonment
in terms of the provisions of s 276(1)(i) of the CPA in
respect of theft and two years' imprisonment suspended for three
years
in respect of obstructing the course of justice.
On
appeal the Court set aside the sentences and ordered that the counts
be taken together for purposes of the sentence. The
appellants
were each sentenced to three years' correctional supervision in terms
of s 276(1)(h) of the CPA.
[12]
Ms Jansen, for the State, also referred to several decisions on the
approach to sentencing corrupt officials:
12.1
S
v Klaasen
2015 JDR 0766 (ECG)
[1]
,
where a Court interpreter had solicited payment of R4000.00 from the
complainant, who was charged with culpable homicide in the
Regional
Court, in exchange for stealing the original charge sheet in the case
and thereby ensuring that the case against the complainant
could not
proceed. He was sentenced, for corruption, to imprisonment for 10
years of which five years were conditionally suspended.
12.2
S
v Mogale
2010 JDR 1510 (GNP)
[2]
,
where a sentence of 15 years imprisonment was imposed on two police
officers for corruption in that they received R2 000.00
cash
which was not due to them in a corrupt way from a certain Mr M to
change the chassis and engine number of his vehicle.
12.3
S
v Mahlangu and Another
2011 (2) SACR 164
(SCA), where a sentenced to six years'
imprisonment, two years of which were conditionally suspended for a
period of five years
imposed on two police officers was confirmed on
appeal. The appellants, who were investigating a homicide case,
demanded R600 from
the complainant, a security guard who had shot and
killed a suspected robber, to 'withdraw' the case.
[13]
It is axiomatic that the determination of an appropriate sentence is
a matter that has to be determined on case by case basis.
The merits
and the circumstances of each and every case differ. The cases
referred to by Mr Van Heerden are distinguishable. It
is also
remarkable that they were all decided prior to the promulgation of
the Criminal Law Amendment Act, 105 of 1997 (the minimum
sentence
regime). The offences the appellant committed attracted a minimum
sentence of 15 years imprisonment absent a finding on
his substantial
and compelling circumstances. Fortunately for the appellant the
trial Magistrate did not take into account
the applicability of the
minimum sentence regime because he was of the view that it was not
mentioned in the charge sheet nor was
reference made thereto at the
commencement of the trial. The Supreme Court of Appeal, recently in
Moses
Tshoga v The State
(635/2016)
2016 ZASCA 205
handed down on 15 December 2016, held at para 22:
“
[22]….(A)
pronouncement that the Act had to be mentioned in the charge sheet or
at the outset of the trial would be elevating
form above substance.
Every case must be approached on its own facts and it is only after a
diligent examination of all the facts
that it can be decided whether
and accused had a fair trial or not.”
[14]
In
S
v Kibido
1998 (2) SACR 213
(SCA)
at
216g-I Olivier JA enunciated the trite principle as follows when an
appellate Court considers sentence on appeal:
“
Now,
it is trite law that the determination of a sentence in a criminal
matter is pre-eminently a matter for the discretion of the
trial
court. In the exercise of this function the trial court has a wide
discretion in (a) deciding which factors should be allowed
to
influence the court in determining the measure of punishment and (b)
in determining the value to attach to each factor taken
into account
(see
S
v Fazzie and Others
1964 (4) SA 673
(A) at 684A - B;
S
v Pillay
1977 (4) SA 531
(A) at 535A-B). A failure to take certain factors
into account or an improper determination of the value of such
factors amounts
to a misdirection, but only when the dictates of
justice carry clear conviction that an error has been committed in
this regard
(
S
v Fazzie and Others
(supra) at 684B - C;
S
v Pillay
(supra) at 535E).
Furthermore, a mere
misdirection is not by itself sufficient to entitle a Court of appeal
to interfere with the sentence; it must
be of such a nature, degree,
or seriousness that it shows, directly or inferentially, that the
court did not exercise its discretion
at all or exercised it
improperly or unreasonably (see Trollip JA in S v Pillay (supra) at
535E - G).”
See
also
S
v Moswathupa
2012
(1) SACR 259
(SCA) at para 4,
S
v Sadler
2000
(1) SACR 331
(A) at 334-335 para 8-9;
S
v Rabie
1975 (4) SA 855
(A) at 857D – F
;
S
v Malgas
2001 (1) SACR 469
(SCA)
at 478, para 12,
S
v Sadler
2000 (1) SACR 331
(A)
at 334-335 para 8-9
[15]
It is so that there has been a considerable delay in disposing of the
appellant’s trial including his appeal. However,
most of the
delays, during the trial, were occasioned by the appellant and his
co-accused because on certain occasions their representatives
had not
been placed in funds; they changed legal representatives; they
applied for legal aid; and the records had to be transcribed
while
the trial was running. In
S
v Pennington and Another
1997
(10) BCLR 1413
(CC)
the
appellants had contended,
inter
alia,
that their right to
a
fair trial had been infringed by delay in the hearing of the appeal.
At 1425 para 39 the Court held:
“
[39]
…..Although delays in the hearing of an appeal might
extend the period of anxiety which the appellants undergo
before
finality is reached, appellate delays are materially different to
trial delays. To begin with there can be no question of
prejudice,
for the appeal is decided on the trial record, and the outcome of the
appeal cannot be affected in any way by the delay.
Moreover, where
the appeal fails, as it did in the present case, the appellant’s
guilt, established at the trial, has been
confirmed.”
And
at para 41 the Court proceeded to hold that:
“
[41]
Undue delay in the hearing of criminal appeals is obviously
undesirable, particularly when
the appellants are in custody.
It
does not follow, however, that such delay constitutes an infringement
of the constitutional right to a fair trial. That question
can be
left open, for even if it were to be regarded as an infringement of
that or some other constitutional right, I am satisfied
that it would
not entitle the appellants to have their convictions set aside or
their sentences reduced on appea
l.”
(My emphasis)
[16]
The Magistrate had regard to the report of the probation officer
which comprehensively sketched out the appellant’s personal
circumstances. As it turned out, in the probation officers report,
mention is made that the appellant had a previous conviction
for
common assault the verdict of which was returned while his trial in
this case was running. The Magistrate disregard this latter
offence
for purposes of the sentence he imposed. He recognised that the
appellant was convicted of serious offences and remarked
that this
caused reputational damage to SAPS and it had been put in a bad
light. He was of the view that a sentence he had to impose
had to
instil public confidence in SAPS with a deterrent effect on the
offenders and potential offenders.
[17]
The Magistrate held the view that the complainant did not approach
the Court with clean hands and said that the complainant
knew of the
possibility of an illicit diamonds transaction in Galeshewe which
lured him to drive there. Notwithstanding this, he
was of the view
that it did not make the appellant morally less blameworthy. After
all, he reasoned, the appellant was a policeman
who acted in cahoots
with others to extort money from the complainant in an unlawful
manner. He further noted that the appellant
did not play open cards
by revealing who his co-perpetrators were to the investigating
officer. He also did not display any contrition
for his actions.
[18]
The Magistrate considered that there were various other sentencing
options available but was of the view that the offence committed
warranted direct imprisonment. As already alluded to, the
Magistrate refrained from invoking the penal provisions set out
in
the minimum sentence regime.
The
appellant did not point to any material misdirection on the part of
the Magistrate save to argue that the sentence was shockingly
inappropriate and that there were other sentencing options that were
available to impose. A Court exercising appellate jurisdiction
cannot, in the absence of material misdirection by the trial Court,
approach the question of sentence as if it were the trial Court
and
then substitute the sentence arrived at by it simply because it
prefers it.
[3]
[19]
As the Court observed in
S
v Mahlangu and Another
(supra)
[4]
c
orruption
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
corners of society against corruption which nowadays seems
fashionable.
[20]
The fact that the appellant was a policeman when he committed the
offences is aggravating. He was supposed to be vigilant and
protect
the community he served against the crime. There can be no doubt that
the corrupt and fraudulent activities executed in
this case were
carefully planned. The appellant played a significant role in the
execution of the bogus police operation and had
ample opportunity to
reconsider his actions. He was a gainfully employed public servant
and there had been no need for him to engage
in any fraudulent and
corrupt activities.
[21]
Against
this backdrop, there is no merit in the argument that the Magistrate
misdirected himself in concluding that the only sentence
to be
imposed was direct imprisonment.
All
things considered there is nothing evoking a sense of shock in the
sentence imposed by the Magistrate requiring any interference
on
appeal. In any event, the sentence imposed is not out of kilter with
the sentence that we would have imposed. It follows that
the appeal
against the sentence must fail. In the result the following
order is made:
ORDER:
1.
The
appeal is dismissed;
2.
The
sentence is confirmed;
3.
The
appellant must present himself to the clerk of the Regional Court,
Kimberley, within 48 hours from date of this order to arrange
for him
to serve his sentence.
____________________________
M.V.
PHATSHOANE
JUDGE
NORTHERN
CAPE HIGH COURT
I
concur:
____________________________
L.P.
TLALETSI
JUDGE
NORTHERN
CAPE HIGH COURT
On behalf of the appellant
Adv C.F. Van Heerden
Instructed by
Hugo, Mathewson and Oosthuizen
On behalf of the State
Adv C.G Jansen
Instructed by
Director of Public Prosecutions
[1]
Case No: CA&R
284/2013 handed down on 25 February 2015
[2]
Case No:
A1526/2004 delivered on 03 December 2010
[3]
S
v Malgas
2001
(1) SACR 469
(SCA)
(2001
(2) SA 1222
;
[2001] 3 All SA 220)
at 478
d
– g.
The
approach was reaffirmed in
Director
of Public Prosecutions v Mngoma
2010 (10 SACR 427
(SCA) at 431 para 11
[4]
at
172 para 26