De Bruyn v S [2007] ZAFSHC 121 (1 November 2007)

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[2007] ZAFSHC 121
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De Bruyn v S [2007] ZAFSHC 121 (1 November 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal
No. : A172/2007
In the appeal between:-
D.J.
DE BRUYN
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
MABESELE,
AJ
et
MOCUMIE,
AJ
_____________________________________________________
HEARD
ON:
15
OCTOBER 2007
_____________________________________________________
JUDGMENT
BY:
MABESELE,
AJ
_____________________________________________________
DELIVERED:
1
NOVEMBER 2007
_____________________________________________________
[1] The
appellant was charged in the Sasolburg Regional Court on a count of
corruption, alternatively theft, involving an amount of
R180 476,80.
He was convicted on the main charge of corruption and was
subsequently sentenced to five years imprisonment. The appellant
now
appeals against his conviction and sentence.
[2] According
to the charge-sheet, on or about 25 February 2003, and at or near
Natref, Sasolburg, in the Regional Division of Free
State, the
accused, being a person upon whom a power had been conferred or who
had been charged with a duty to sign or canvass contracts
to the
benefit of Natref, did wrongfully, intentionally, and corruptly
receive or obtain or agree to receive or attempt to obtain
a benefit
which was not legally due to him, to wit, R180 476,80, in order:
to be rewarded for
having awarded contract work to a company known as Vanderbijlpark
Chemicals (VDPC) at Natref site and/or to do
other favours for VDPC
or Elsa Klopper; or
that the accused would
ensure that VDPC is awarded contract or work at Natref site.
[3] In the alternative,
the accused was charged with theft in that upon or about the said
date and at or near the said place the accused
did unlawfully and
intentionally steal R180 476,80 from VDPC or Elsa Klopper, under
false pretences that he will make work available
for VDPC.
[4] The
complainant, Elsa Klopper, is a partner at VDPC. She testified,
among others, that she, together with her co-partner, one
André
Beyers, attended a meeting with the appellant in Vanderbijlpark. At
the meeting, the appellant promised to award the electrical
instrument contract to them.
[5] The witness testified
that from 2002 until October 2003 she paid the appellant an amount of
R4 000,00, fortnightly, to assist
in securing contracts. An
estimated total amount she paid during the said period was R180
000,00. When she was asked how did she
go about paying R4 000,00 to
the appellant, fortnightly, she said:
“
He phoned me, he knows, okay, hy
het presies geweet wanneer was my betaalweke van my mense gewees,
elke twee weke, every fortnight.
Hy het partykeer na my kantoor toe
gekom. Ek het die geld elke keer vir hom in kontant, cash, in die
envelope naamloos, no name
on, het hy vir my gesê ek mag nie name op
sit nie. R4 000,00 het ek in koeverte vir hom gesit. Hy het dit by
my kantoor kom haal.”
[6] She
testified further that she again gave the appellant money in an
envelope at Spar, in Vaalpark. She was accompanied by her
mother,
she said. She said the other reason why she continuously paid money
to the appellant was to seek favours from the appellant
to allow her
workers to stay on site at Natref, even though they did not have
permits. The witness said to be on site one must have
a letter of
good standing. The witness said:
“
And there were certain times that
people were standing outside the gate and then I will just phone
Johan and ask him, what now, because
all my people, he knows exactly
how it works there, because the papers come from Pretoria and then he
will just phone the main gate
and say to Chris or whoever is working
with the permits, let the people go in. There he helped me but that
is for the money that
I gave him every second week.”
[7] Deon
Smit is a senior administrative officer at Natref. He is attached to
the contract management division. He testified,
inter
alia
,
that the appellant is also attached to the same management division.
Their duties included,
inter
alia
,
the evaluation of contracts. He had his own contracts to evaluate
and the appellant had his as well.
[8] The appellant
testified that he received money from the complainant for the pies
and clothes which he sold to her. He denied
that he ever created
the impression to the complainant that he would give her work. He
said he was transferred from the projects
and services division
approximately 14 months before he was suspended. Prior to him being
transferred, he was a principal project
officer. The appellant
denied that he ever received R4 000,00 fortnightly from the
complainant for the period 2002 until 2003, as
alleged.
[9] The appellant
acknowledged under cross-examination that he never sold pies to the
complainant worth R4 000,00. He said he did
not know why his counsel
put to Marais, during cross-examination, that the complainant gave
him another envelope. He said he never
received any envelope from
the complainant. He did not know why his counsel did not challenge
the complainant’s version that an
amount of R4 000,00 was given to
him at Spar.
[10] Mr. Viviers, who
appeared on behalf of the appellant, argued that the complainant was
a single witness and also a witness warned
in terms of section 204 of
the Criminal Procedure Act, No. 51 of 1977. Therefore, the
magistrate should have applied double cautionary
rules, but she
failed to do so. Mr. Viviers argued that the complainant was
unreliable, untruthful and was evasive. He submitted
that the
magistrate could not have convicted the appellant of corruption due
to the fact that the appellant had no power or authority
to approve
or secure contracts for the complainant.
[11] He argued that the
sentence of five years’ imprisonment imposed by the magistrate
induces a sense of shock. He said the magistrate
misdirected herself
for not taking into account the personal circumstances of the
appellant as well as the recommendations made by
the correctional
officer in his pre-sentence report, that the appellant qualified for
correctional supervision.
[12] Mr.
Viviers pointed out, correctly so, that the complainant was a single
witness, who was also warned in terms of
section 204
of the
Criminal
Procedure Act, No. 51 of 1977
. It is trite law that the evidence of
such a witness should be treated with caution. For instance, in
S
v GANIE AND OTHERS
1967 (4) SA 203
(N) at 206 H, the court said:
“
...
a
court should approach the evidence of a single witness with caution
and should not easily convict upon such evidence unless it is
substantially satisfactory in all material respects or unless it is
corroborated.”
[13] Mr.
Vivier’s argument that the complainant was not impressive as a
witness and could not answer questions directly should be
looked at
in context. One should be mindful of the fact that the complainant
requested to testify in Afrikaans. Despite her request,
the
prosecutor and the magistrate questioned her in English without first
establishing the extent of her understanding of English.
It is
evident from the record that the complainant struggled to understand
English. What follows here-under demonstrate this point.
[14] When the magistrate
asked the complainant whether she understood the question which the
magistrate put to her, she said:
“Vertel
my dat ek mooi verstaan.”
The magistrate asked her
about the impact of the departure of her partners on her business and
she answered as follows:
“Weg
is.”
The
complainant was again asked whether the departure of her partners had
anything to do with non-allocation of the contracts as promised.
She
again responded as follows:
“Toe
nie vir my gegee is nie.”
From
the incidents pointed out above, it cannot be said that the
complainant was evasive and/or unreliable or untruthful. She did
not
understand English well.
[15] Language plays an
important role as a means of communication. It is a tool by means of
which a person clearly expresses his
or her ideas and in the manner
in which he or she prefers such ideas to be expressed. In my view,
such ideas can clearly be expressed
in the language which is best
preferred by a person from whom such ideas originate.
[16] Despite
the difficulties which the complainant had experienced, she stuck to
her version that she gave money in the envelopes
to the appellant on
numerous occasions. Mr. Viviers correctly conceded that such
evidence was not challenged. In my view, therefore,
the magistrate
had no option but to accept the version of the complainant as the
truth.
[17] The
magistrate was also mindful of the fact that the complainant was a
single witness. In her judgment, the magistrate said:
“
The court is mindful of the fact
that the accused is a single witness but that does not mean that his
version must be rejected. It
must be reliable and credible for him
to pass the cautionary rule.”
[18] The
appellant did not dispute that he attended a meeting in
Vanderbijlpark where, according to the complainant, he promised to
award the electrical instrument contract to them. As I have pointed
out previously, the appellant again did not challenge the
complainant’s
version that he received money from the complainant
in the envelopes. Therefore, his version that he did not receive a
benefit from
the complainant, is not reasonably possibly true. It
was correctly rejected, in my view.
[19] Another
issue which was raised by Mr. Viviers was that the appellant had no
power or authority to approve or secure contracts.
For this reason,
Mr. Viviers argued, the appellant should not have been convicted of
corruption. He sought reliance on
S
v MAPHANGA
2004 (1) SA 615
(N) in which case the court interpreter who had
received money in exchange for doing away with the docket, was
acquitted on a count
of corruption because he had not been conferred
with any power or charged with any duty in regard to dockets in cases
against accused
persons.
The
above-quoted case is irrelevant to the matter before us. The
appellant was charged with a duty,
inter
alia
,
to evaluate contracts. Operating within the scope of his duties, the
appellant and his superior altered the complaint’s contract
from
labour hire into services. This, demonstrates clearly, in my view,
that the appellant had been charged with a duty to deal
with the
contracts. Therefore, he was correctly convicted of corruption.
[20] The
sentence in the Court
a
quo
can only be interfered with if the magistrate misdirected herself or
himself or the sentence is shockingly inappropriate.
[21] Corruption is a
serious offence. It is rife in our society. It is a disease which
should be rooted out through severe punishment,
in deserving cases.
The appellant, as correctly pointed out by the magistrate, could not
even think of withdrawing from his conduct
of accepting money from
the complainant for a period of a year and nine months. His conduct,
in my view, demonstrates clearly that
this disease is circulating in
his blood, even though he did not keep to the deal as promised. The
magistrate took into account
the personal circumstances of the
appellant. In my view, the sentence imposed by the magistrate is
appropriate.
[22] In the result, I
make the following order:
1. The appeal against
conviction and sentence is dismissed.
__________________
M.M.
MABESELE, AJ
I
concur.
________________
B.C. MOCUMIE, AJ
On
behalf of appellant: Adv. A.M. Viviers
Instructed by:
Willem
van Vuuren Attorney
10
Leslie
Street
VEREENIGING
Ref.
Mr. Van Vuuren/ML/D98
016
– 422 0195/6
On
behalf of respondent: Adv. Giorgi
Instructed
by:
Director
of Public Prosecutions
Free
State
3
rd
Floor
Waterfall
Centre
BLOEMFONTEIN
/sp