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[2024] ZAKZPHC 42
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Goqo v S (AR28/2023) [2024] ZAKZPHC 42 (17 May 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Appeal
no:
AR28/2023
In
the matter between:
MBONELENI
ERNEST
GOQO
APPELLANT
and
THE
STATE
RESPONDENT
Coram:
Balton J and Mossop J
Heard:
10 May 2024
Delivered:
17 May 2024
ORDER
On
appeal from:
Durban Regional Court
(sitting as the court of first instance):
The
appeal against conviction is dismissed.
JUDGMENT
MOSSOP
J (Balton J concurring)
:
[1]
The appellant is a constable in the South African Police
Services (the SAPS). He stood charged on a single count of corruption
in
terms of the
Prevention and Combating of Corrupt Activities Act 12
of 2004
. It was alleged by the State that he had unlawfully, and for
his own benefit, accepted R4 000 in cash from a Ms Amina Sidat
(Ms Sidat) to release her motor vehicle, a VW Polo with registration
mark N[...] 1[...] (the impounded vehicle), from the SAPS
motor
vehicle pound situated in Isipingo, KwaZulu-Natal. He pleaded not
guilty to that count, but was convicted and sentenced to
six years’
imprisonment, half of which was suspended for three years. He appeals
against his conviction only, with the leave
of this court.
[2]
Ms Sidat purchased the impounded vehicle
second hand and took it to the SAPS pound at Isipingo in March 2018
to have a SAPS vehicle
clearance issued. She testified that she had
never before purchased a motor vehicle. The appellant was the SAPS
officer who attended
to her when she arrived at the SAPS pound. He
determined that there was a problem with the impounded vehicle, as
its chassis number
did not match the chassis number in the logbook
attaching to it. The appellant consequently declined to clear it or
to release
it back into Ms Sidat’s possession and then
impounded it. The impounded vehicle thus remained at the SAPS pound.
Ms Sidat
returned there on four further occasions to ascertain what
was to happen with the impounded vehicle, but the appellant was never
there when she called.
[3]
On 18 June 2018, Ms Amin’s
brother-in-law ascertained that if the impounded vehicle was to be
released, some money would have
to be paid. The sum mentioned was
R4 000. Ms Sidat testified that, as this was the first car that
she had ever bought, she
believed that what she was being asked to
pay was a normal impost charged by the SAPS. She explained, perhaps
naively, that she
had to pay for a certificate of roadworthiness and
for a security feature called DataDot and believed that this was a
further payment
that had to be made.
[4]
Ms Sidat accordingly borrowed the R4 000
from her mother and then went to the Isipingo pound on 19 June 2018.
She and her brother-in-law,
Mr Fahim Mahomed (Mr Mahomed), sat there
the whole morning awaiting the arrival of the appellant. He
eventually arrived mid-afternoon,
and they went into his office. Mr
Mahomed handed over the R4 000 to the appellant. It was made up
of R100 notes and, according
to Ms Sidat, they were placed in the
appellant’s pocket after he had counted them. He then left the
office, returning ten
minutes later, and brought a form with him that
would permit the impounded vehicle to be released to Ms Sidat.
Because of the lateness
of the hour, Ms Sidat was not able to secure
the release of the impounded vehicle that day. She returned the next
Monday to get
the impounded vehicle. However, when she proceeded to
inspect the impounded vehicle, it was found to be without its rims,
tyres,
and radio. All those items had been on the vehicle when it was
initially impounded.
[5]
Ms Sidat was then directed to go and see a
Colonel Els (Col Els), who had an office upstairs in the pound
building. This she did,
and she met with him. He confirmed when he
was called to testify at the trial that he had met her and had
received her complaint
about the state of the impounded vehicle. He
explained the options available to her and when she left his office,
he called for
the SAP13 register, being the exhibit register in which
the details of all motor vehicles received at the pound must be
recorded.
He did this to check what the condition of the impounded
vehicle was when it had first been impounded by the appellant. That
check
confirmed that it had wheels, tyres, and a radio when first
seized. About an hour and a half later, someone called him on his
office
landline telephone, and he was told by this anonymous caller
that Ms Sidat had been required to pay R4 000 to the appellant
to get the vehicle released and he was urged not to release the
impounded vehicle. Col Els immediately went down to the vehicle
inspection area of the pound and found Ms Sidat still there and
standing next to the impounded vehicle.
[6]
Col Els testified that he asked Ms Sidat
whether she had paid any person any money to have the impounded
vehicle released to her.
Her immediate answer to him was:
‘
Yes,
I had to pay Constable Goku
[1]
(sic) an amount of R4 000 in order to have my vehicle released.’
Col Els testified that he
understood that this money had been paid to the appellant the week
before. He then went to his office
and immediately reported what he
had learned to the appellant’s senior officer, as the appellant
was not under his direct
command. The impounded vehicle was not
released that day, nor was it ever released. Col Els testified that
no money is ever required
to be paid for the services rendered by the
SAPS pound, especially not for the release of a motor vehicle from
the pound.
[7]
Ms Sidat’s husband, a witness to what
allegedly occurred at the pound, was not called to testify. The
reason advanced for
this was that he had suffered a stroke. Mr
Mahomed was accordingly the final witness for the State. He indicated
that he was a
mechanical fitter by trade and said that he had been
present when the money was paid and had interacted with the
appellant. He
had gone with Ms Sidat and her husband to the SAPS
pound at Isipingo. There, he had met with the appellant and gave him
what he
described as being ‘money for release fees of my
sister-in-law’s cars’. It was never suggested that Ms
Sidat
had more than one motor vehicle at the pound and the reference
to ‘cars’ is obviously a slip of the tongue.
[8]
Mr Mahomed testified that he had learned
that a release fee of R4 000 had to be paid to secure the release of
the impounded vehicle.
According to Mr Mahomed, how this all happened
had started in the mess room at the Sapref oil refinery where he
works. He had been
on lunch one day and had mentioned the problems
that his sister-in-law was having at the pound. A work colleague
overheard him
and said that he knew someone at the pound and would
have a word with him. That connection was, apparently, the appellant,
and
Mr Mahomed stated that he was provided with the appellant’s
name. A week later, Mr Mahomed’s colleague reverted to him
and
told him that he was to go to the pound and meet with the appellant
and that it would cost R4 000 to get the impounded
vehicle
released. Mr Mahomed confirmed that he paid that sum of money over to
the appellant in R100 notes. That payment was made,
so Mr Mahomed
testified:
‘
To
push the papers – you know, to get out the car as quick as
possible, you’ve got to pay the price in order to push
the
papers.’
[9]
Having paid over the money to the
appellant, Mr Mahomed testified that he did not observe whether he
counted it. Some papers were
then handed over by the appellant and
they were told that the impounded vehicle should be ready to be
uplifted the next week. They
then left and his sister-in-law went
back the following week, only to find the wheels and tyres missing
from the impounded vehicle.
[10]
To this direct evidence, the appellant
presented his version which was comprised simply of a denial that he
had accepted any money
from Ms Sidat or her brother-in-law. He
confirmed that she had come to see him on 20 June 2018 in the company
of two other people.
He had explained to her that the impounded
vehicle was to be returned to her. He speculated that Ms Sidat and
her brother-in-law
believed that he was involved in purloining the
rims, tyres, and radio from the impounded vehicle. He testified that
he had faced
an internal disciplinary hearing but had been acquitted.
It was not disclosed, however, whether this inquiry related to the
cash
allegedly paid over to him or to the loss of the equipment from
the impounded vehicle, or to both.
[11]
The appellant insisted at various instances
in his evidence that the impounded vehicle had been released to Ms
Sidat but, ultimately,
had to concede that he had no direct evidence
of this fact. He further testified that he was being targeted because
he was the
investigator in this matter, a proposition that was never
put to Ms Sidat or Mr Mohamed. Then, the appellant testified that
while
there was no bad blood between him and Col Els, the colonel had
allegedly said when announcing his imminent retirement from the
SAPS,
that prior to retirement, he wanted to see that one of the members of
the SAPS ‘was in orange overalls’. This
was a reference
to the colour overalls that convicted persons wear in prison. This
was never put to Col Els, but the appellant
insisted that the colonel
was falsely implicating him in this matter. He agreed that he had not
instructed his legal representative
that this was the case.
[12]
The defence called the evidence of a
Captain Elliot Zuma, who is stationed at the SAPS pound in Isipingo.
He explained the ultimate
fate of the impounded vehicle. He testified
that Ms Sidat had approached him with a court order to have the
impounded vehicle released
to her, but he ascertained that the
impounded vehicle had been forfeited to the State. When that is done,
so he explained, the
motor vehicle is destroyed by being crushed.
That is what happened in this instance. The impounded vehicle could
not therefore
be released to Mrs Sidat.
[13]
The regional magistrate considered all this
evidence in her judgment. She found the State witnesses to be
excellent witnesses. The
trial court found Ms Sidat and Mr Mahomed to
be ‘uneducated’, which is perhaps a bit harsh when it
comes to Mr Mahomed,
but found their evidence to be reliable. It
seems to me that these are not people who would have the time, or the
inclination,
to engage in a conspiracy to falsely incriminate the
appellant. They are ordinary, hardworking members of the community
who try
to follow the correct procedures. That is what Ms Sidat was
doing when trying to get a SAPS clearance for her vehicle. She
believed
that making the payment was entirely regular and was part of
the ordinary system of obtaining the necessary clearance on the
impounded
vehicle. This is reflected in the fact that her initial
complaint to Col Els had nothing to do with the payment she had been
required
to make – it had to do with the wheels, tyres, and
radio being missing from the impounded vehicle. Ms Sidat did not
appear
to be a worldly person nor did she come across as a person who
could easily afford the R4 000.
[14]
The regional magistrate’s finding on
the merits of the State witnesses, excluding Col Els, was attacked in
argument by Mr
Edwards, who appeared for the appellant. He submitted
that both Ms Sidat and Mr Mahomed knew full well that they were
paying a
bribe to the appellant and that their evidence should
therefore have been approached with caution. I cannot share that
view. Firstly,
there was no evidence whatsoever that Ms Sidat
appreciated this to be the case. There may be a suggestion that Mr
Mahomed appreciated
that the payment was required to improperly
grease the wheels of the SAPS bureaucracy but this issue was never
explored at all
during the trial. Secondly, I am not sure that this
argument redounds to the appellant’s benefit, for it has as its
basic
premise that what was occurring was a two-sided criminal
transaction, with the payer of the bribe on the one side and the
recipient
of the bribe on the other side. In this scenario, the
recipient was the appellant. For the argument to be valid, both sides
of
the transaction must be present on the facts of this matter. It
follows that if that argument is accepted, the appellant has to
be
viewed as having improperly received the money and that then is the
end of the appeal.
[15]
I
do not accept that the regional magistrate erred in her assessment of
the credibility of Ms Sidat and Mr Mahomed as witnesses.
As was said
by Nestadt JA in
S
v Mkohle
:
[2]
‘
It
need hardly be stressed that where a trial Court's findings on
credibility are in issue on appeal, as in this matter, then, unless
there has been a misdirection on fact, the presumption is that the
conclusion is correct; the appellate Court will only reverse
it if
convinced that it is wrong. In my opinion the Court
a
quo
did not misdirect itself.’
I
remain unpersuaded that there was any such misdirection.
[16]
Mr Edwards also highlighted the central
issue in the array of facts presented to the trial court as being the
handing over of the
payment of R4 000. He submitted that there was a
contradiction between the evidence of Ms Sidat and Mr Mahomed in this
regard.
That contradiction related to whether the R4 000 was
contained within an envelope or not. Mr Edwards submitted that this
difference
struck at the very heart of the matter and was advanced
with some brio by him. However, Ms Sidat made no mention in her
evidence
of an envelope. The envelope was only mentioned by Mr
Mahomed in the following circumstances while he was being
cross-examined:
‘
And
was it open cash notes or was it in an envelope or a packet or what
was … [incomplete] --- I think it was either in an
envelope or
– I think it was an envelope at the time.
COURT
Do you know, do you remember, or are you just
assuming? --- I’m assuming, it was some time back.’
There was thus no
contradiction between the evidence of the two principle witnesses who
testified about the payment of the money.
And Mr Mahomed himself was
by no means certain that the money was, indeed, contained in an
envelope.
[17]
The appellant had the difficult task at
trial of coming up with an explanation for the receipt by him of the
R4 000 in R100
banknotes. The approach that he took, as
previously mentioned, was to deny that it had ever been paid to him.
As to why he would
unfairly be made the scapegoat for what occurred,
the appellant came up with two possibilities. The first was that Ms
Sidat and
Mr Mahomed blamed him for the missing wheels, tyres, and
radio. The second was that Col Els wanted to put a policeman in
prison
by the time that he retired. If this was what had happened, it
would follow that Col Els would have had to have solicited Ms Sidat’s
involvement in his plan, for it was never disputed that Ms Sidat had
told Col Els that she had paid the R4 000 to the appellant.
Neither
of these propositions was put to the witnesses who would have an
interest in commenting upon them. It is highly unrealistic
for the
appellant to believe that the court a quo ought to have accepted the
truth of what he claimed when none of the witnesses
had been told of
the appellant’s theories and asked for their views on them. The
appellant’s contentions were correctly
rejected by the regional
magistrate.
[18]
The
ability of an appeal court to interfere with the findings of a lower
court are limited. As was held in
S
v Francis
:
[3]
‘
In
the absence of any misdirection the trial Court’s conclusion,
including its acceptance of a witness’ evidence, is
presumed to
be correct. In order to succeed on appeal, the appellant must
therefore convince the Court of appeal on adequate grounds
that the
trial Court was wrong in accepting the witness’ evidence - a
reasonable doubt will not suffice to justify interference
with its
findings. Bearing in mind the advantage which a trial Court has of
seeing, hearing and appraising a witness, it is only
in exceptional
cases that the Court of appeal will be entitled to interfere with a
trial court’s evaluation of oral testimony.’
I
am unable to identify any misdirections made by the regional
magistrate and her judgment and conclusion appears to me to be sound.
[19]
The appeal cannot therefore succeed. I
would propose that it be dismissed.
MOSSOP J
I agree and it is so
ordered
BALTON J
APPEARANCES
Counsel
for the appellant:
Mr
S Edwards
Instructed
by:
R
M D Legal Services
1
Bisset Street
Camperdown
Counsel
for the state:
Mr
T Chetty
Instructed
by:
Director
of Public Prosecutions
Pietermaritzburg
[1]
Throughout
the transcript of proceedings, the transcriber has incorrectly spelt
the appellant’s surname of ‘Goqo’
as ‘Goku’.
[2]
S
v Mkohle
1990
(1) SACR 95
(A) at 100e-f.
[3]
S
v Francis
1991
(1) SACR 198
(A) at 198j-199a in the headnote.