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2024
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[2024] ZAFSHC 351
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Mofokeng v S (A40/2024) [2024] ZAFSHC 351 (7 November 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
reportable
Case number:
A40/2024
In
the matter between:
MOHLOKI
MOFOKENG
Appellant
and
THE
STATE
Respondent
Coram:
Loubser J
et
Opperman J
Heard:
14 October 2024
Delivered:
7 November
2024.
This judgment was handed down in open court and released to SAFLII.
The date and time for hand-down is deemed to be 09h30
on 7 November
2024.
Summary:
Appeal against the correctness
of convictions in terms of the provisions of
s 3
of the
Prevention
and Combating of Corrupt Activities Act 12 of 2004
and reckless
driving in terms of
s 63
of the
National Road Traffic Act 93 of 1996
ORDER
1.
The convictions on counts 1 to 5 are
confirmed.
2.
The appeal is dismissed.
JUDGMENT
Loubser
J
et
Opperman J
[1]
This is an appeal against the conviction of
the appellant in the Bloemfontein Regional Court on four counts of
corruption and one
count of reckless driving. The appeal was heard
with leave to appeal granted by two judges of this Division on
petition. The conviction
on the five counts is challenged on the
grounds that the respondent had failed to prove its case beyond
reasonable doubt, and that
the version of the appellant had been
reasonably and possibly true.
[2]
It
needs mentioning that the appellant was charged in the court
a
quo
on four counts of corruption together with a co-accused, and they
were both convicted on those counts. Both were sentenced to an
effective term of four years’ imprisonment, which sentence was
later converted into a sentence of correctional supervision.
[1]
At the date of the hearing of this appeal, both had already served
the full term of their sentences. On the fifth count, only the
appellant was convicted of reckless driving and sentenced to twelve
months imprisonment that was wholly suspended for five years.
[3]
It needs further mentioning that, at the
time of their conviction, the appellant and his co-accused were
members of the South African
Police Services, where they served as
constables.
[4]
In the first four counts, namely the counts
of corruption, they were charged with contravening
s 3(
a
)(i)(
aa
)
and/or 3(
a
)(ii)(
bb
)
and/or 3(
a
)(ii)(
cc
)
read with
s 1
,
2
,
24
,
25
and
26
(1)(
a
)(ii)
of the Prevention and Combating of Corrupt Activities Act 12 of 2004
(the Act). In count 1 it was alleged that on 17
June 2010 and
at or near Ladybrand the appellant and his co-accused wrongfully and
directly or indirectly demanded and/or solicited
and/or asked for
gratification in an unknown sum of money of more than R100.00 from
Francois Petrus Fourie, for them to facilitate
or to assist the said
Mr. Fourie not to be detained in the police cells before his
appearance in the Magistrate’s Court of
Bloemfontein.
[5]
In count 2 it is alleged in the same vein
that on 1 June 2010 and at or near Bainsvlei, Bloemfontein, the
appellant and his co-accused
accepted six pieces of biltong from
Daniel Wilhelmus Roodt for them not to arrest and charge the said Mr.
Roodt for making a false
statement. In count 3 it was alleged that
they accepted gratification in the sum of R2 000.00 on 2 June
2010 at or near Bainsvlei
from the same Mr. Roodt for not arresting
and charging him for making a false statement. In count 4 they were
charged with accepting
R2 000.00 on 2 July 2010 from the same
Mr. Roodt at or near Bainsvlei, Bloemfontein for not arresting and
charging the said
Mr. Roodt for making a false statement.
[6]
In count 5 it was alleged that the
appellant unlawfully and recklessly or negligently drove a Nissan
motor vehicle with registration
number DJL […] at or near
Bainsvlei, Bloemfontein, on 2 July 2010.
[7]
At the end of the case, the trial
magistrate evaluated the evidence of the complainants extensively in
his judgement on the merits
of the matter. He concluded that the
complainant, Fourie, had impressed him with the manner in which he
presented his evidence,
while the complainant, Roodt, had made an
excellent impression on the court. The magistrate then accepted the
evidence of the complainants
and their supporting witnesses as the
truth although the complainants were single witnesses to a large
extent as far as the events
were concerned.
[8]
In
this respect, this court is mindful of the fact that a court of
appeal is not at liberty to depart from the trial court’s
findings of fact and credibility, unless they are visited by
irregularity, or unless examination of the record of evidence reveals
that those findings are patently wrong. The trial court’s
findings of fact and credibility are presumed to be correct, because
the trial court had the advantage of seeing and hearing the witnesses
and is, therefore, in the best position to determine where
the truth
lies.
[2]
[9]
Before
we turn to the evidence presented on the different counts, we deem it
necessary to make a few observations in respect of
the Act in terms
of which the appellant and his co-accused were charged. It has been
said that the Act ‘unbundles’
the crime of corruption by
creating a general, broad and all-encompassing offence of corruption
and then identifying and criminalising
various corrupt activities.
Thus, corruption can be described as an unbundled crime in that it is
not embodied in a single definition.
Rather, a general description of
corruption is complemented by a wide range of specific forms of
corruption. Of vital importance
to the adjudication of this appeal is
that the general offence of corruption in s 3 of the Act essentially
corresponds to bribery.
Section 3 identifies the agreement to corrupt
as the offence. Actual payment or giving or receiving of
gratification are not elements
of the offence but can constitute
proof that corruption had indeed taken place.
[3]
[10]
As mentioned earlier, the appeal is founded
on the contention that the respondent has not succeeded in proving
the guilt of the
appellant beyond a reasonable doubt, and that the
version of the appellant was reasonably and possibly true. We
therefore need
to evaluate the evidence as it appears from the
transcribed record of the proceedings, and we do so count by count.
[11]
Count 1:
The complainant, Mr. Fourie, testified that he was
held by the authorities at the Maseru border post on 17 June 2010
because of
a warrant for his arrest that was issued in another case.
The appellant and his co-accused then arrived to take him to
Bloemfontein.
They first took him to his place of residence in nearby
Ladybrand so that he could collect his jacket. While at Ladybrand,
they
stopped at Ladybrand where he bought three packets of KFC and
three Cokes, he told the court. On their way back to Bloemfontein,
the appellant and his co-accused asked him whether he wanted to sleep
in the cells that night, and he said no. They then said that
they are
prepared to help him, but then he must also help them. He realized
that they were talking about bribe money, and he then
offered them
R100.00, which was the only money he had on his person. Their
reaction was that he should speak like a man and not
like a woman.
Upon their arrival at Bloemfontein, they took his fingerprints and
warned him to appear in court the next day, he
testified. His brother
also arrived at the police station, and he told his brother that they
were talking about bribe money. His
brother told him that he had no
money at that point in time and that they should discuss the matter
the following day at the court.
[12]
The appellant and his co-accused vehemently
denied in the court
a quo
that there was any talk about bribe money, and they specifically
denied that Mr. Fourie had bought them KFC and Cokes at Ladybrand.
He
only bought some for himself, they said. They also relied heavily on
Mr. Fourie’s evidence that, on their way back to
Bloemfontein,
they had advised him to contact his attorney, which was done with the
assistance of his father-in-law. By doing so,
the appellant and his
co-accused hinted that the release of Mr. Fourie that night was
because of the efforts of his attorney, and
not because of any
bribery negotiations between themselves and Mr. Fourie.
[13]
Mr. Fourie further testified that he and
his brother met the appellant and his co-accused again at the court
the following day.
There they called his brother and talked to him.
Thereafter the appellant and his co-accused drove behind them to an
auto teller
machine at the Stadium Café, where his brother
withdrew some cash and gave him an amount of R600.00. Before he could
hand
the money to the appellant and his co-accused, they suddenly
disappeared.
[14]
The brother of Mr. Fourie, Mr. Dawid
Hermanus Fourie, was also called to testify, and he confirmed the
version of Mr. Fourie in
relation to the withdrawal of money at the
Stadium Café. He testified that he had a conversation with the
appellant and
his co-accused at the court, and the co-accused asked
him where the money was. No specific amount was mentioned. Thereafter
he
and Mr. Fourie went to Stadium Café where he withdrew
R700.00 and gave R600.00 to Mr. Fourie. Meanwhile the appellant and
his co-accused had stopped a distance away in a green Golf vehicle
and waited. When Mr. Fourie emerged with the R600.00 to hand
it over
to them, they suddenly sped away in the vehicle. The witness
attributed this to the fact that these events happened during
the
soccer world cup and there were a lot of policemen around. He also
confirmed that the appellant and his co-accused had to be
paid to
avoid the detention of his brother on the night that he was arrested.
[15]
It speaks for itself that the complainant
Fourie was not a single witness as far as the withdrawal of the money
is concerned. As
for the events that took place in the car on the way
back to Bloemfontein, he was indeed a single witness. In this
respect, we
find the following dictum by the Supreme Court of Appeal
apposite in the present enquiry:
‘
The
question for determination is whether, in light of all the evidence
adduced at the trial, the guilt of the appellants was established
beyond reasonable doubt. The breaking down of a body of evidence into
its component parts is obviously a useful aid to a proper
understanding and evaluation of it. But, in doing so, one must guard
against a tendency to focus too intently upon the separate
and
individual part of what is, after all, a mosaic of proof. Doubt about
one aspect of the evidence led in a trial may arise when
that aspect
is viewed in isolation. Those doubts may be set at rest when it is
evaluated again together with all the other available
evidence. That
is not to say that a broad and indulgent approach is appropriate when
evaluating evidence. Far from it. There is
no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But, once that has been
done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail to see the wood
for the trees.’
[4]
[16]
Bearing this in mind, we are satisfied that
the trial magistrate was correct in accepting the evidence of Mr.
Fourie relating to
what happened in the car on the road to
Bloemfontein, although Mr. Fourie was a single witness here. His
evidence in this respect
was complimented by the evidence of what
happened the following day at the auto teller, where his brother
confirmed his evidence.
The dispute that arose regarding the KFC and
the fact that the R600.00 was never handed over to the appellant the
following day,
is of no consequence. It is clear that there was an
ongoing attempt by the appellant and his co-accused to demand,
solicit or ask
for gratification from Mr. Fourie from the moment they
were all in the car to the moment when they suddenly left the scene
of Stadium
Café the following day. That alone constituted the
offence of corruption in contravention of s 3 of the Act. The
conviction
on count 1 therefore stands to be confirmed.
[17]
Count 2:
The complainant in this count is Mr. Daniel
Wilhelmus Roodt. He testified that he had made two conflicting
statements regarding
the loss of his firearm. In the one he alleged
that it was stolen from his vehicle which was parked at his house. In
the other,
he alleged that the vehicle was parked at Senwes when the
theft took place.
[18]
He further testified that, following this,
the appellant and his co-accused came to visit him at his home on 1
June 2010. While
he was sitting in the back of their car, they told
him that he had told a lie as to where the firearm was stolen, and
that he could
get in trouble as a result. They asked him what he
could offer. They also wanted to know about the sheep near the house.
He told
them that the sheep belonged to his father, and all he could
offer was R1000.00 each as well as some biltong. He went back into
the house where he fetched a few pieces of biltong, which he gave to
the appellant and his co-accused. He testified that he offered
the
amount of R2 000.00 because they made him understand that they could
help him with his trouble as far as his conflicting statements
are
concerned.
[19]
Mr. Roodt further testified that they came
back to his house the following day. They said that they came for the
money, but he told
them that he would have to make a loan in order to
pay them. They also asked him whether he was a man or a woman.
Furthermore,
he told the court that during these talks, the appellant
took his cellphone to see whether he was recording their
conversation.
[20]
Again, the appellant and his co-accused
denied this evidence of Mr. Roodt in the court
a
quo
. Although Mr. Roodt was a single
witness as far as the negotiations between himself, the appellant and
his co-accused were concerned,
there was a measure of support for his
evidence in the form of the testimony presented by his
then-girlfriend, Ansomay Roodt. At
the time of her testimony, she was
already married to Mr. Roodt. She testified that on 1 June 2010, she
saw two policemen arriving
at the house of Mr. Roodt, and he went
outside to speak with them in their car. He later came back into the
house, took a few pieces
of biltong out of the freezer and went back
to the policemen, where he gave the biltong to them.
[21]
The trial magistrate labelled both Mr. and
Mrs. Roodt as good and reliable witnesses in his evaluation of their
evidence. He accepted
their evidence as the truth. As we have seen,
this court is not at liberty to depart from the trial court’s
findings of fact
and credibility, unless the record of evidence
reveals that those findings are patently wrong. Since the record of
evidence does
not reveal anything of the sort, the magistrate’s
observations must stand. The handing over of the biltong itself does
not
constitute the offence of corruption but serves as proof to a
certain extent that corruption did take place. The corruption took
place when the appellant and his co-accused solicited or asked for
gratification in order for them to help the complainant with
his
trouble relating to the conflicting statements that he had made. In
the premises, the conviction on this count also stands
to be
confirmed.
[22]
Count 3:
We have already mentioned that on 2 June 2010,
that is the day following the handing over of the biltong, the
appellant and his
co-accused returned to the house of Mr. Roodt. They
told him they came for the money, and he said that he still had to
get the
money. Mr. Roodt testified that he borrowed R2 000.00 from
his brother in order to pay them. The arrangement between himself,
the
appellant and his co-accused was that he would meet them at 17h00
that afternoon at the Arcadia Cash Store. The appellant and his
co-accused arrived half an hour late at the store, and they
instructed Mr. Roodt to get into the back of their vehicle, where he
handed the money to the appellant, who counted it. After saying that
they would talk again, the appellant and his co-accused departed.
Mr.
Roodt told the court that he received the money from his brother via
his girlfriend at the time. He had told his girlfriend
why he needed
the money.
[23]
As was the case in respect of count 2,
Ansomay Roodt again gave corroborating evidence in respect of count
3. She testified that
at the beginning of June 2010, Mr. Roodt phoned
her to request that she fetch an amount of R2 000.00 from his brother
and bring
it to him. He mentioned to her that the money was for the
issue with his revolver. She testified that she fetched the money
from
the brother and took it to Mr. Roodt. She phoned him later and
he said that he had given the money to the police officials.
[24]
We have already pointed out that we cannot
depart from the trial court’s findings of fact and credibility
as far as the evidence
of Mr. and Mrs. Roodt is concerned. We,
therefore, must conclude that the appellant and his co-accused
contravened the provisions
of s 3 of the Act on 2 June 2010 when they
came to the house of Mr. Roodt where they demanded or asked for the
payment of the R2
000.00. Upon such payment, they would take steps to
help Mr. Roodt with the problem of his statements. These were the
terms of
the agreement between the three of them. The actual handing
over of the R2 000.00 served as proof of the commission of the crime
of corruption by the appellant and his co-accused. Their conviction
on this count must also stand.
[25]
Count 4:
This
charge pertains to the incident that occurred on 2 July 2010. Here
the appellant corruptly, and again in contravention of the
applicable
subsections in s 3 of the Act, as discussed above, and according to
the charge sheet, elicited R2 000.00 from Daniel
Wilhelmis Roodt. The
prelude to the offence is the confession of Mr. Roodt to one Warrant
Officer Fredericks. Mr. Roodt declared
to him that he made a false
statement to the police about a firearm that was licensed in his
name. Mr. Roodt complained that the
accused in the case
a
quo
demanded money from him to have the
case against him disappear, as he put it.
[26]
Warrant Officer Fredericks, with 33 years’
experience in the South African Police Service at that stage,
investigated the
allegation and found that the co-accused to the
appellant was the investigating officer in the case against Mr.
Roodt. Warrant
Officer Fredericks, now a seasoned member of the
Organised Crime Unit in the South African Police Service, immediately
obtained
a so-called s 252A – authorisation. R2 000.00 was
obtained from the police and the notes recorded for later
identification.
Mr. Roodt proceeded to make the appointment and
arrangements for the monies, already claimed by the appellant and his
co-accused,
to be handed over. The two accused were always in control
of the situation. They indicated the amount, the time and place of
the
handing over of the monies. They, at some stage, changed the
venue and the witnesses had to adapt to this.
[27]
The evidence of Warrant Officer Fredericks
explained in detail how the incident unfolded. His evidence was
supported by, among others,
Warrant Officers Boukes and Kruger. The
witnesses gave a detailed depiction of the events; details so
specific that the court had
to accept the evidence. The bare denial
of the accused as to the event and the version of them being innocent
bystanders were correctly
rejected by the court. The witnesses
corroborated each other with veracity. They testified about their
observations in the moment
they experienced and any allegation of a
conspiracy to falsely implicate the accused cannot be accepted.
[28]
Succinctly, according to the witnesses for
the State that were involved in the operation, it was observed how
Mr. Roodt alighted
from his vehicle and got into the vehicle with the
two suspects. Mr. Roodt then exited the vehicle and declared that the
monies
were handed over. The police officials involved were ordered
to move towards the suspect vehicle. The suspects then started to
drive away and they accelerated to a speed that caused the police
vehicles to engage their blue lights. It was testified that the
appellant and his co-accused clearly saw and realized that they were
being pursuit by the police. A high-speed chase ensued. From
what was
observed by the witnesses, something was thrown out of the vehicle
and since the money was nowhere to be found when the
two accused were
apprehended, the inference was drawn that it was the said money. The
evidence adduced showed beyond any doubt
that the crime of corruption
as per count 4 was committed.
[29]
Count
5
:
The drama did not end there; the appellant was the driver of the
vehicle that sped away after the transaction was concluded with
the
handing over of the money and he was convicted of contravening s
63(1)
[5]
of the
National Road
Traffic Act 93 of 1996
. The charge against the appellant is that he
unlawfully and recklessly or negligently drove a motor vehicle during
the incident.
It was never denied that the appellant was the driver
of the vehicle. The evidence of the witnesses for the State is that
as they
endeavored to bring the vehicle driven by the appellant to a
stop, the appellant would move to the right to cut them off. At an
intersection, the appellant ran a stop sign at a high speed. The
chase ended on a gravel road that made the circumstances even
more
perilous and the conduct of the appellant reckless. The police
managed to bring the vehicle of the accused to a stop, and
they were
arrested. One witness testified that the roads were not conducive to
this kind of driving and that it posed a danger
to everybody on the
roads. The same witness testified how she gestured to the accused to
stop and how they saw them and realized
the fact that they were being
pursued. There is no doubt that the appellant drove the vehicle with
willful and wanton disregard
for the safety of persons or property
and thus did so recklessly.
[30]
A
peripheral but real issue is the matter of the
s 252A
–
operation. The court
a
quo
did consider the legality of the trap. He regarded it with caution
and with an eye on the constitutionality thereof. Important
is the
fact that the appellant and his colleague were the initiators of the
incident; not the police or Mr. Roodt. The police were
a mere
reaction to the conduct of the perpetrators. The spelling error in
the authority is of no consequence. Kruger
[6]
surmised the law aptly when he concluded the following with reference
to case law and the development of
s 252A
of the
Criminal Procedure
Act 51 of 1977
in the post constitutional era:
‘
In
S v Makhanya and Another
2002 (3) SA 201
(N) McCall J investigated the facts with reference to
section 252A(3)(b)
and found that the trap did not make the trial
unfair (at 207D–209B).
Section 252A
does not create a defence
but rather an evidential rule that allows for the exclusion of
evidence in the discretion of the trial
court. The evidence will be
excluded when the police have gone beyond merely providing the
accused with an opportunity to commit
an offence and have induced the
accused to commit offences they would otherwise not have committed (
S
v Thinta and Another
2006 (1) SACR 4
(EC) par [26]).’
[31]
The trial court was correct to convict the
appellant as it did, and the appeal must fail. In the result, the
following order is
made:
1.
The convictions on counts 1 to 5 are
confirmed.
2.
The appeal is dismissed.
P. J. Loubser, J
M. Opperman, J
Appearances
On
behalf of the appellant:
Adv.
T. Diba
BLOEMFONTEIN
On
behalf of the respondent:
Adv.
D. Pretorius
Instructed
by:
The
Office of the Director of Public Prosecutions:
Free
State
Bloemfontein
[1]
In
addition to the correctional supervision sentence a further seven
years imprisonment was imposed and suspended in its totality
for a
period of five years on condition that the appellant and his
co-accused are not again convicted of the contravention of
s 3 of
the Act and which was committed within the period of suspension.
[2]
S
v Hadebe and Others
1997 (2) SACR 641
(SCA) at 654E-F.
[3]
Kruger
A,
Organised
Crime and Proceeds of Crime Law in South Africa,
3 ed, para 2.13.2 at 45.
[4]
Per
Nugent JA in
Mbuli
v The State
2003 (1) SACR 97
(SCA) para 57.
[5]
Section
63.
‘
Reckless
or negligent driving. —
(1) No person
shall drive a vehicle on a public road recklessly or negligently.
(2) Without
restricting the ordinary meaning of the word “recklessly”
any person who drives a vehicle in willful
or wanton disregard for
the safety of persons or property shall be deemed to drive that
vehicle recklessly.
(3) In considering
whether subsection (1) has been contravened, the court shall have
regard to all the circumstances of
the case, including, but without
derogating from the generality of subsection (1) or (2), the nature,
condition and use of the
public road upon which the contravention is
alleged to have been committed, the amount of traffic which at the
relevant time
was or which could reasonably have been expected to be
upon that road, and the speed at and manner in which the vehicle was
driven.’
[6]
Kruger
A,
Hiemstra's
Criminal Procedure
,
Chapter 24 Evidence, 252A ‘Authority to make use of traps and
undercover operations and admissibility of evidence so obtained’,
at 24-116 to 24-121. Last updated March 2024 - SI 17. LexisNexis.