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[2016] ZAGPPHC 760
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Nkosi v S (A647/2015) [2016] ZAGPPHC 760 (26 August 2016)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A647/2015
DATE:
26 AUGUST 2016
In
the matter between:
PETROS
BYALELISA
NKOSI
...............................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
Not
reportable
Not of interest
to other Judges
SETHOLE.
AJ
1.
The appellant appeared in the Regional
Court, Benoni on a charge of corruption by accepting a benefit, that
is contravention of
section 3(a) (i) (aa) act 12 of 2004, first
alternative, fraud, second alternative, theft. The charge was that on
the 30
th
January 2009 at Benoni Police Offices the accused accepted an amount
of R 2000, 00 from Nicholas Mathe as a benefit for himself
or another
person, namely, to pay bail for Rose Nkosi.
The
appellant pleaded not guilty on the main and alternative charges and
denied the allegations against him.
2.
The trial court found him guilty on the
second alternative, namely, theft of an amount of R2 000, 00.
3.
The evidence that was led by the state
was that of the complainant, Warrant Officer Nicholas Mathe and
Captain John Scholtz.
4.
Briefly the facts are as follows: That
on the 27
th
January 2009 the complainant had a telephone conversation where the
appellant informed him that he was arresting his sister on
a charge
of fraud. The complainant went to Benoni SAPS to do some
investigations regarding his sister’s arrest.
5.
On the 30
th
January 2009, the complainant and Captain John Scholtz went again to
Benoni SAPS enquired from the appellant as to the amount of
bail that
would be fixed and an amount of R 2 000,00 was suggested by the
appellant.
6.
The complainant and Captain Scholtz went
to withdraw R6 500, 00 at the ATM. An amount of R 2 000, 00 was
handed to the appellant
as bail for the complainant’s sister in
front of Captain Scholtz.
7.
Later on the same day, the complainant
phoned his sister to enquire as to what transpired at court. She
informed him that there
was no bail paid and she was released without
appearing in court and already at home. Five days thereafter, the
complainant enquired
from the appellant of the bail money and the
appellant told him not to worry. The complainant demanded his money
back but the appellant
kept on promising to refund him. Subsequent
numerous demand by complainant, the appellant informed him that is
was through his
efforts that his sister was released without
appearing and he could not understand why he demanded a refund. The
complainant decided
to lay a corruption charge against the appellant.
8.
On cross-examination the complainant
testified that on the 30
th
January 2009 he saw his sister at the holding cells at Benoni SAPS.
It was put to the complainant that he went to the Benoni SAPS
on the
29
th
January 2009 but he denied. He denied speaking to Lieutenant Colonel
Khubyane about his sister’s bail arrangement.
9.
The accused testified in his defence and
confirmed that he was amongst the police officers who arrested Rose
Nkosi, the sister of
complainant and that he was not the
investigation officer in her case. That on the 30
th
January 2013, the complainant and captain Scholtz went to Benoni
SAPS, where Mr Mphele, the investigating officer informed them
that
he is busy preparing for Rose Nkosi to go to court. Mphele told them
to go to court where he will find them. The docket was
taken to court
and the prosecutor did not enrol the case and as a result Rose Nkosi
had to be released without appearing in court.
Mathe deny having
received R 2 000, 00 from the complainant.
10.
Lieutenant Colonel Khubayane testified
that on the 29
th
January 2009, she was the commanding officer of the appellant and
that, on that particular day she went to fetch Rose Nkosi from
the
holding cells in order for her to meet the complainant and Captain
Scholtz. She warned the appellant and Mphele to avoid being
bribed by
the complainant and Captain Scholtz.
11.
According to the complainant, they went
to Benoni SAPS on the 30
th
January 2009 but according to captain Scholtz, they also went there
on the 29
th
January 2009.
12.
What is of concern is whether the
complainant did if fact give the appellant bail money of R 2 000, 00.
According to complainant’s
version as corroborated by captain
Scholtz, they withdrew money from an ATM and gave it to the appellant
to pay bail for complainant’s
sister. This is denied by the
appellant.
13.
In a criminal case it is not the duty of
the accused to prove his innocence but is the duty of the state to
prove the accused guilt
beyond reasonable doubt. The question that
this court has to ask itself is whether the state proved accused
guilt beyond reasonable
doubt.
14.
R versus Difford
1937 AD 370
it was said that if the accused gives an
explanation, even if the explanation is improbable, the court is not
entitled to convict
unless it is satisfied , not only that the
explanation is improbable, but beyond any reasonable doubt it is
false. If there is
any possibility of accused's version being true,
then he, the accused is entitled to an acquittal.
15.
The trial court accepted the states
version and rejected that of the appellant. I do not agree with the
trial court and I am of
the view that there is doubt in the state's
case for the following reasons:
15.1.
The complainant is a police officer who
had 30 years' experience at the time of the trial. He is expected to
know the procedure
that is followed if a person is arrested and bail
had to be arranged. Bail money is not paid to a police officer in the
corridors
of the courts.
15.2.
Furthermore, that the complainant and
the appellant did not meet before. It was for the first time on the
30
th
January 2009. I find it difficult to believe that indeed money was
given to the appellant by the complainant on their first meeting.
See
page 15 par 5 of the record.
15.3.
The complainant saw his sister on the
morning of the 30
th
January 2009 at the police station and as a police officer who could
easily identify himself to the court orderly, there was nothing
that
prevented him from giving the bail money to his sister in the holding
cells for the purposes of paying bail, if indeed he
was in a hurry.
15.4.
If the complainant could go to Benoni
SAPS on the 27
th
January 2009 and on the 29
th
January 2009, why was it difficult for him to wait and pay the bail
money on the 30
th
January 2009 when his sister was supposed to be released. I find it
hard to believe his explanation that they could not wait to
pay for
complainant’s sister because they were in a hurry to conduct an
operation.
16.
The appellant does not have to prove his
innocence meaning that even if he does not testify, it cannot be said
he is guilty on an
offence. In this matter the version of the
appellant is a denial. The question is whether his version is
reasonably possibly true.
If indeed, he should be given the benefit
of the doubt. I regard the version of the appellant as reasonably
possibly true as it
cannot be expected from a police officer of the
complainant’s calibre and experience to conduct himself in a
manner he did
in this case.
17.
Regarding conviction I find that the
state did not prove its case of theft beyond reasonable and as a
result the appellant is hereby
given the benefit of the doubt.
18.
As a result I propose the following
order:
1.
The appeal against conviction is upheld.
SETHOLE,
EE
Acting
Judge of the High Court
I
agree and it is so orderd.
N.V
KHUMALO Judge of the High Court
Date
of judgment
: 26 AUGUST 2016
For
the appellant: Mr R.S Matlapeng Instructed by: Pretoria Justice
Centre
For
respondent:
Adv. A. Roos
Instructed
by:
Director of Public Prosecutions, Pretoria