Mbambo v S (A118/2009) [2009] ZAFSHC 131 (5 November 2009)

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[2009] ZAFSHC 131
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Mbambo v S (A118/2009) [2009] ZAFSHC 131 (5 November 2009)

FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal
No.:
A118/2009
In the case between:
MOKGEBE
ANDREAS MBAMBO
Appellant
and
THE
STATE
Respondent
CORAM:
MOCUMIE
et
JORDAAN, JJ
JUDGEMENT:
MOCUMIE, J
_____________________________________________________
HEARD
ON:
21 SEPTEMBER 2009
_____________________________________________________
DELIVERED
ON:
5 NOVEMBER 2009
_____________________________________________________
MOCUMIE J
[1]
The appellant appeared in the Regional Court, Welkom on two counts
in terms of the Corruption Act,12 of 2004
(‘the
Corruption Act’)
.
On 27 February 2009 he was found not guilty and discharged on count
1-fraud alternatively theft and count 2 ,contravention of section
4(1)(b)(i)(aa) read with section 1 and 6 of the Corruption
Act-directly or indirectly agreeing or offering to give any
gratification
to a public officer for his benefit in order to act
illegally or dishonestly and found guilty as charged on the
alternative to count
2, to wit contravention of section 3(a) (i) (aa)
of the Corruption Act-accepting or agreeing to accept any
gratification from any
other person for his benefit or another person
in order to act personally or by influencing another person so to act
that amounts
to illegal or dishonest exercise or carrying out of any
powers or duties. He was sentenced to 24 months imprisonment in terms
of
section 276(1)(i) of the Criminal Procedure Act, 51 of 1977
(“the
CPA”)
.
He now
appeals against his conviction with leave of the court
a
quo.
[2] In
his Heads of argument and in oral argument, Mr Schuurman, on behalf
of the appellant, attacked the presiding officer’s findings
on the
basis that the evidence of the complainant was not sufficient to have
established the state’s case beyond reasonable doubt.
He submitted
that the complainant’s evidence was riddled with contradictions,
inconsistencies and improbabilities; that the complainant
and his
witnesses gave contradicting evidence and thus the appellant’s
version should not have been rejected as not reasonably
and probably
true.
[3] It
was common cause between the State and the defence or at least not
seriously disputed that the complainant and the appellant
were in a
handler-and-informer relationship since August 2003. In other words
the complainant was registered as an official informer
and the
appellant was his handler. Subsequently to his registration as an
informer the complainant gave the appellant information
of a planned
robbery. The appellant and the Station Commissioner then
Superintendent Dikgang sought authorization from their Provincial
office to have the complainant infiltrate the group. The complainant
had to go along with the would-be-robbers so as not to make
them
suspicious of any leak of their criminal activity to the police;
during the commission of the robbery he would be arrested with
them;
but that when the trial commenced the charge against him will be
withdrawn and that he will be used as a state witness.
[4] It
was also common cause between the State and the defence or at least
not seriously disputed that subsequent to the complainant’s
arrest,
the complainant was kept incarcerated with the other suspects as
agreed upon and was released on bail of R2 000,00.The appellant
used
the complainant’s informers’ fees to pay bail for him. The
complainant was given R1 000, 00 as part of the R3 000, 00 which
he
was entitled to after he had given the police information which led
to the arrest of the robbers. The complainant signed for the
R 1000,
00 and was shown the bail receipt in the amount of R 2000, 00 by the
appellant.
[5]
There
was a twist in the tail while the robbery case was still pending
against the complainant. The complainant alleged that he informed
the
appellant about death threats that he was receiving from his
co-accused as they suspected that he was an informer. Consequently,
so he alleged, he did not feel safe in Thabong and relocated for a
while to Botshabelo. There were delays which caused the prosecution
not to initiate the trial which led to several postponements. In the
complainant’s view the appellant did not take the death threats
seriously. According to him the appellant instead demanded that he
pays him R 1000, 00 to have the case withdrawn against him.
[6] The
case was postponed many times. On one of the many times that the case
was postponed by the court on request of the prosecutor
the
complainant demanded that the appellant give him traveling costs
which the latter could not do. The complainant believed that
the
appellant was treating him unfairly and instead approached the
appellant’s superiors and informed them that the appellant had
demanded R 1000, 00 from him to withdraw the case against him. The
police set a trap for the appellant using the complainant as bait.
The complainant and the appellant met as arranged on 24 August
2004.The complainant gave the appellant R1 000, 00 whilst they were
in the appellant’s car in Welkom next to Erikson shopping Centre.
The police, unknown to the appellant, kept them under observation
at
all times until the transaction was concluded. The appellant was
arrested at Welkom police station. The police found initially
R700,
00 of the R1 000, 00 the complainant had given to the appellant in
the latter’s possession and later found the missing R300,
00 at
Checkers Supermarket where the appellant had gone to buy groceries
earlier on that day. The police had given the complainant
a tape
recorder that he had to switch on to record the transaction. It was
discovered afterwards that either he did not switch it
on or it was
defective. But the transaction was not recorded.
[7] The
only dispute between the State and the defence is the purpose of the
R1 000, 00. In other words why did the complainant give
the
appellant the R1 000, 00. Was it to
“bribe”
the appellant to have the case of robbery withdrawn against the
complainant as the State alleged or was it to keep it for the
complainant
until he wanted it back as the appellant alleged.
[8] There
are two conflicting versions as to why the complainant gave the
appellant the R1000, 00. The State’s version is that the
appellant
elicited R1 000, 00 from the complainant to have the robbery case
withdrawn against him.
[9] The
appellant’s version is that the complainant gave him the R1 000,00
to keep for him as he was afraid that he might use it
before he got
the R 2000,00 from the bail bond which money was meant for a feast at
his home later. The complainant had also told
him to use the money
for himself in the mean time.
[10] The
cardinal principle of criminal law is that the state must prove its
case beyond reasonable doubt whereas the accused/appellant
must be
acquitted if it is reasonably possible that he might be innocent. See
S
v Van Aswegen
2001 (2) SACR 97
(SCA) at 101a-e and cases quoted therein. It is also
trite that where there are conflicting versions
“…
it is important to consider not only the credibility of the witnesses
but also the reliability of such witnesses.”
See
S
v Janse Van Rensburg
2009 (2) SACR 216
(CPD) at 220c-e and cases quoted therein.
(11) The
trial court concluded that the complainant was a reliable witness and
although a single witness as regards the crucial part
of the case,
the purpose of the R 1000, 00, he was corroborated by other state
witnesses: four police officers who formed the team
that arrested the
appellant on 24 August 2004.
[12] The
trial court observed, without making any finding on the complainant’s
credibility and reliability, that the appellant’s
version was
improbable in the face of the evidence of the State.
[13] In
convicting the appellant, the trial court committed a number of
fundamental misdirections. It suffices to refer to only two
at this
stage. First, the magistrate disregarded the contradictions and
inconsistencies in the evidence of the complainant with
regard to the
alternative of count 2 as will be highlighted hereunder.
[14] The
evidence adduced showed that the complainant had a tendency to
exaggerate the evidence if not lie deliberately to mislead
the court.
The complainant testified that after he was arrested in the robbery
case he was kept in detention for three months before
he was released
on bail. Whereas through cross-examination it was shown that he was
detained for a month and a few days. He alleged
that Inspector
Mokoena, the investigating officer of the robbery case, arrested him
on trumped-up charges of possession of a firearm
in February 2004 and
kept him in detention for 8 months with the sole purpose to force him
to withdraw the charges against the appellant.
In truth, as was
revealed by cross-examination, that never happened. In fact this
story did not even add up with the evidence in
this case as the
appellant was only arrested in August 2004.
[15] The
complainant denied that he was aware of any arrangement that he will
be arrested and then released when the trial commenced.
Clearly this
cannot be probable because if there was no such prior agreement why
would he have actively participated in a robbery
that he had reported
to the police. Furthermore why would the police pay bail for his
release. The police depended on his participation
to arrest the
would-be robbers. He also denied meeting with the appellant and
Superintendent Dikgang the day before the commission
of the robbery
to confirm all the details and the place where the robbery would
allegedly take place. Superintendent Dikgang corroborated
the
appellant about this meeting and in all other respects in this
regard. Otherwise how would the police have known about the place
that would have been robbed and engaged other police members in the
operation without having seen the place prior to the robbery.
The
complainant was not in their company but with the would-be-robbers.He
denied that the appellant took him to the prosecutor to
explain to
him that the charge against him will only be withdrawn against him
when the trial commenced. The prosecutor also explained
to him that
because he was still an accused he was not entitled to traveling
costs, for traveling to and from Botshabelo on every
remand date, as
he demanded. Evidently the complainant became very impatient with the
“slow
wheels of justice”
when the case against him was not withdrawn shortly after his release
on bail as he had anticipated. He immediately put the blame
squarely
on the appellant’s door step. He wanted the robbery case withdrawn
against him prematurely and he was not getting his
way.
[1
6] Second,
the magistrate, unreservedly, accepted Inspector Herbst’s evidence
that the docket which the appellant is alleged to
have shown to the
complainant, presumably the robbery case, was found in the
appellant’s vehicle when he was arrested. The state’s
own
witness, Captain Van der Merwe testified that the case docket
concerned was only fetched from the magistrate court two moths
after
the appellant was arrested. He explained the arduous procedure the
police must go through to get any docket from the prosecutor.
The
magistrate says the following in this regard in his judgment:
“
Die logies
vraag is nou of inspekteur Herbst aan die hof ‘n leuen vertel en of
sy moontlik ‘n fout maak…Die blote feit dat inspekteur
Lenong kom
getuig dat hy wel dossiere van inspekteur Herbst ontvang het,is bewys
daarvan dat inspekteur Herbst inderdaad dossiere
oorhandig het en kan
daar geen rede wees waarom die hof nie glo dat inspekteur Herbst die
waarheid praat nie.Die tweede gedeelte
van hierde vraag is egter of
inspekteur Herbst nie moontlik ‘n fout kon maak ten opsigte van die
identiteit van die dossier in
hierdie omstandighede nie…Die hof is
van oordeel dat inspekteur Herbst nie maaklik ‘n fout sal began met
die herken van hierdie
dossier nie.”
[17]
There
is no objective evidence why the presiding officer came to the
conclusion that inspector Herbst could not make a mistake with
the
identification of this docket in the light of what inspector Lenong
said further on in his evidence that he was certain Inspector
Herbst
did not give him the robbery docket on the day the appellant was
arrested; what Inspector Mokoena,the investigation officer
of the
robbery said about the docket: that the docket was at the Regional
court the day the appellant was arrested; and Captain Van
der Merwe’s
unequivocal evidence that the docket was only retrieved from the
court on 2 September 2004 after the appellant’s
arrest on 24 August
2004. Almost a month later. To the contrary the presiding did not
doubt Captain Van Der Merwe’s evidence in
this regard. The only
explanation that can be found for choosing Inspector Herbst’s
evidence above three witnesses is his remarks
that “…
die
kern van hierdie misdryf (is) oneerlikheid en alhoewel daar ‘n
groot gewag gemaak is ten opsigte van die prosedure
in
werklikheid dat dossiere elke dag weg raak
…
”
(My underlining).There is no objective evidence on which the
presiding officer could say that the procedure on how dockets are
retrieved from the Regional court could have been breached in this
instance. More so when the State chose not to lead evidence of
the
Regional court prosecutor responsible in that period or the
Control/Senior prosecutor.
[18]
The
presiding officer concluded that the evidence of the police officers
on when, how and where the trap was set corroborated the
complainant’s evidence. In principle this cannot be correct.
Cloete
JA
in
S
v Gentle
2005 (1) SACR 420
(SCA) at 430j states categorically the following in
this regard:
“…
by
corroboration is meant other evidence which supports the evidence of
the complainant, and which renders the evidence of the accused
less
probable, on the issues in dispute (cf R v W
1949 (3) SA 772
(A) at
A 778 - 9). If the evidence of the complainant differs in
significant detail from the evidence of other State witnesses,
the
Court must critically examine the differences with a view to
establishing whether the complainant's evidence is reliable.
But
the fact that the complainant's evidence accords with the evidence of
other State witnesses on issues not in dispute does not
provide
corroboration.”
(My
underlining)
[
19]
In my view if there was corroboration sought for the complainant’s
evidence it could have been found in other evidence which
the State
opted not to lead. For instance the evidence of Inspector Magasane
who was alleged to be present when the complainant called
the
appellant from Inspector Smith’s office. Insp Smith says clearly
the complainant spoke to the appellant in Sesotho, a language
which
he doesn’t understand, whilst Inspector Magasane was with them. How
difficult could it have been for the State to lead evidence
of Insp
Magasane on the content of the conversation which convinced the
appellant to rush and meet the complainant .Contrary to what
was
submitted during argument by State Counsel, the defence had no duty
to call Insp Magasane when the State opted not to call him
for
unknown reasons. In a criminal case if the party who bears the
evidential burden fails to adduce evidence, (s)he loses. (
Law
of Evidence Issue 6, CWH Schmidt H Rademeyer, 3-36;
S
v Texeira
1980(3)
SA 755(A)
[
20] In
my view there were material contradictions, inconsistencies and
improbabilities in the evidence of the complainant which if
looked at
individually may not necessarily be material but collectively they
impact negatively on the credibility of the complainant
as a single
witness whose credibility was under the spot light arising from the
aforesaid inconsistencies and improbabilities.
[
20] In
the light of contradictions and improbabilities highlighted, I do not
agree with the trial court that the evidence of the complainant
was
satisfactory in every material respect. In fact, in my view the
magistrate did not warn himself sufficiently of the caution he
should
exercise in cases of a single witness in the same circumstances under
discussion. These inconsistencies and improbabilities
are material
and point to the unreliability of the complainant as a single witness
who had the opportunity and the motive to falsely
implicate the
appellant. He was for a long time under the witness protection
programme and was not happy with how the case was dragging
on and not
commenced as he had anticipated and he blamed the appellant squarely
for his misfortunes.
[
21] Lastly
the State submitted that the appellant’s statement that the
complainant tried to bribe him which was found to be a confession
by
the presiding officer and thus not admissible be reconsidered. The
State placing reliance on
Keys
v Attorney General, Cape Provincial Division and Others
1996 (1) SACR
134
(CC)
was of the view that the statement was an extracurial admission
albeit not reduced to writing and ought to have been allowed even
if
it was obtained contrary to section 35 of the Constitution Act
1996.i.e without the appellant having being appraised of his right
to
legal representation and importantly his right not to incriminate
himself before he could utter such words as alleged by Insp
Smith. I
do not intend to go in depth on this aspect suffice to say that the
presiding officer was correct in his approach. The admission
of a
statement (reduced to writing or not) obtained or made without a
warning that it may be used against the maker will inevitably
taint
the fairness of any subsequent trial. This means that in this case it
was improper for the police in particular Inspector Smith
not to have
apprised the appellant of his constitutional rights before he could
allegedly make such a statement and then turn around
to use the same
against him. The right to a fair trial envisaged in section 35(1) of
the Constitution of South Africa requires a
substantive rather than a
formal or textual approach. The reliance on
Key
v Attorney General, Cape Provincial Division
supra in these circumstances is misplaced. To have allowed that
purported statement would have had an adverse effect on the rights
of
the accused to a fair trial. See
S
v Orrie and Another
[2005] All SA 212
(SCA) at 223;
S
v Molimi
supra
at
622-623.
[
22] Having
concluded that the trial court misdirected itself as set out in the
preceding paragraphs it is important to reiterate what
Nkabinde
J
recently stated categorically in
S
v Molimi
2008 (2) SA (CC) 76 at 99 f-g:
“
[50] It is a
cardinal principle of our criminal law that when the State tries a
person for allegedly committing an offence, it is
required, where the
incidence of proof is not altered by statute (and it is not in this
case), as is the case in this matter, to
prove the guilt of the
accused beyond reasonable doubt. That standard of proof,
'universally required in civilised systems of criminal
justice', is a
core component of the fundamental fair trial right that every person
enjoys under s 35(3) of the Constitution. In
S v Zuma and Others,
this court, per Kentridge AJ, held that it is always for the
prosecution to prove the guilt of the accused person,
and that the
proof must be beyond reasonable doubt. The standard, borrowing the
words used by Plasket J in S v T, 'is not part of
a charter for
criminals and neither is it a mere technicality'. When the State
fails to discharge the onus at the end of the case
against the
accused, the latter is entitled to an acquittal.”
[
23] Having
said that the evidence of the complainant raises strong suspicions of
the appellant‘s complicity in the commission of
corruption, the
appellant like any accused in a criminal trial cannot be convicted
simply because his version is improbable.
Nkabinde
J
in
Molimi
supra
at 100g states:
“
(T)here is no
onus on the applicant to prove his innocence. A mere suspicion,
strong as it might be, is not adequate to confirm his
conviction.
Convictions based on suspicion or speculation, as the court stated in
S v T, are the hallmark of a tyrannical system
of law and South
Africans have a bitter experience of such a system and where it leads
to. That system cannot and ought not, in our
constitutional
democracy, be countenanced.”
[
24]
For the reasons given in the above paragraphs and on a conspectus of
all the evidence I am of the view that the appeal ought
to
succeed.
[25]
In
the circumstances I make the following order
.
ORDER
The
appeal against
the
conviction succeeds
.
The
conviction
and
sentence are set aside
.
________________
B. C. MOCUMIE, J
I
concur.
_______________
A.
F
.
JORDAAN, J
BCM/em