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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

CASE NO: CA24/2022

Court A Quo: SRC 69/2018

 

Reportable:                                           YES / NO

Circulate to Judges:                              YES / NO

Circulate to Magistrates:                       YES / NO

Circulate to Regional Magistrates:        YES / NO

 

 

In the matter between:

 

ZAHID BHAYAT                                                                  Appellant

 

and

 

THE STATE                                                                        Respondent

 

Coram:                       Petersen J, Maakane AJ

Heard:                        24 February 2023

Handed down:           26 July 2023

 

Delivered:   This judgment was handed down electronically by circulation to the parties’ representatives by email. The date and time for hand-down is deemed to be 10h00AM on 26 July 2023.

 

 

ORDER

 

 

The appeal against the convictions and sentence is dismissed.

 

 

JUDGMENT

 

 

PETERSEN J

 

Introduction

 

[1]    The appellant, Zahid Bhayat was charged in the Regional Court, Stilfontein (‘the court a quo’) on three (3) main charges, with alternative charges of contravening certain sections of the Prevention and Combatting of Corrupt Activities Act 12 of 2004 (“the Prevention and Combatting of Corrupt Activities Act”).

 

[2]    The formulation of the charges are unconventional when considered against the standard formulation of charges in matters involving a contravention of the Prevention and Combatting of Corrupt Activities Act. It is prudent to recapitulate the content of the charge sheet in respect of the formulation of the charges to fully appreciate the issues in this appeal. The charges as proferred against the appellant were formulated as follows:

 

“1.    Provincial Inspector Zahit Bhayat (accused) is a member of and employed by the Department of Safety and Security as a traffic officer, stationed at Potchefstroom. He is thus a public officer and a person who is a party to an employment relationship as defined in section 1 of the Prevention and Combating of Corrupt Activities Act, 12 of 2004 (“the Act”).

 

2.     As part of his duties, the accused conduct patrols along the N12 road between Potchefstroom and Klerksdorp.

 

3.     On 5 May 2017, the accused stopped Shaun Pillay (Pillay) and informed him that he exceeded the speed limit. The accused informed Pillay that he was going to arrest him, whereupon Pillay requested to see reading on the speed camera, but the accused refused that he does. The accused then informed Pillay that he could make the speed reading disappear and whilst talking on a cellular phone, showed Pillay 5 fingers indicating that he, Pillay, should pay the accused R5 000-00 to do so. The accused provided Pillay with directions to an ATM where Pillay withdrew the cash and handed it over to the accused.

 

4.     During June 2017, Nawaaz Carim (Carim) was travelling along the N12 highway when he was stopped by the accused, alleging that he exceeded the speed limit and that he was going to be arrested. Carim requested to see the speed camera reading and the reading was zero. When asked about the zero reading, the accused said that the system will reflect that Carim was exceeding the speed limit. The accused told Carim that he was going to be arrested, but that he, the accused could make a plan to have the speed cancelled. The accused demanded R2000-00 from Carim to do so and Carim handed him the money.

 

5.     On 4 November 2017, Rameez Minty (Minty) was stopped by the accused whilst he was travelling on the N12 highway. The accused told Minty that he (minty) knew what he had to do and Minty informed the accused that he did not have any cash on him and that the accused should come to his showroom (EB Motors) to collect the money. On 6 November 2017 the money, R2 000-00 was collected by a Stephen Mokwena who was requested by the accused to collect something from EB Motors.

 

6.     The money referred to in paragraphs 3, 4 and 5 above constitutes a gratification as defined in section 1 of the Act.

 

7.     The manner in which the accused accepted or offered to accept gratification from Shaun Pillay, Nawaaz Carim and Rameez Minty, falls within the ambit of the manner variously prescribed in sections 3(i) to (iv) and 4(1 )(i) to (iv) of the Act, to wit, in a manner:

 

(i)     that amounts to the

(aa) illegal, dishonest, unauthorized, incomplete, or biased; and/or

(ii)    that amounts to

(aa)     the abuse of authority; and/or

(bb)     a breach of trust; and/or

(iii)    designed to achieve an unjustified result; and/or

(iv)   that amounts to any other unauthorized or improper inducement to do or not to do anything.

 

NOW THEREFORE the accused is guilty of the following charges:

 

COUNT 1

 

CONTRAVENTION SECTION 4(1)(a) READ WITH SECTIONS 1, 2, 4(2), 24, 25 AND 26(1)(a) OF PREVENTION AND COMBATING OF CORRUPT ACTIVITIES ACT, 12 OF 2004 FURTHER READ WITH SECTION 294A OF ACT 51 OF 1977 - corrupt activities relating to public officers (accepting or offering to accept gratification)

 

IN THAT on or about 5 May 2017 and at or near Klerksdorp in the Regional Division of North West, the accused, a public officer as described in the preamble did unlawfully and intentionally offer to accept and accept from Shaun Pillay gratification as defined by the act to wit: R5000-00 for his own benefit and/or for the benefit of any other person in order to act personally or by influencing another person so to act, in a person in order to act personally or by influencing another person so to act, in a manner prescribed in section 4(1)(i) to (iv) of the Act (as described in the preamble),

 

TO WIT: not to arrest or issue a traffic fine to Shaun Pillay.

 

NOW THEREFORE the accused is guilty of the offence of corrupt activities relating to public officers.

 

IN THE FIRST ALTERNATIVE

 

CONTRAVENTION OF SECTION 3(a) READ WITH SECTIONS 1, 2,4(2),24,25 AND 26(1)(a) OF PREVENTION AND COMBATING OF CORRUPT ACTIVITIES ACT, 12 OF 2004 FURTHER READ WITH SECTION 294A OF ACT 51 OF 1977— CORRUPT ACTIVITIES RELATING TO PUBLIC OFFICERS - general corrupt activities relating to any person (accepting or offering to accept gratification)

 

IN THAT on or about 5 May 2017 and at or near Klerksdorp in the Regional Division of North West, the accused, a public officer as described in the preamble did unlawfully and intentionally offer to accept and accept from Shaun Pillay gratification as defined by the act to wit: R5000 .00 for his own benefit and/or for the benefit of any other person in order to act personally or by influencing another person so to act, in a manner proscribed in section 3(1)(i) to (iv) of the Act (as described in the preamble),

 

TO WIT: not to arrest or issue a traffic fine to Shaun Pillay.

 

NOW THEREFORE the accused is guilty of the offence of corrupt activities relating to public officers.

 

IN THE SECOND ALTERNATIVE

CONTRAVENTION OF SECTION 10(a) OF PREVENTION AND COMBATING OF CORRUPT ACTIVITIES ACT, 12 OF 2004 - OFFERING AN UNAUTHORISED GRATIFICATION

 

IN THAT on or about 05 May 2017 and at or near Klerksdorp in the Regional Division North West, the accused who is a party to an employment relationship as described in the preamble did accept or agree or offer to accept gratification from Shaun Pillay, the said unauthorized gratification, to wit: R5000-00 for his own benefit and/or for the benefit of any other person, in respect of doing an act in relation to the exercise, carrying out or performance his powers, duties or functions as a traffic officer within the scope of his employment relationship,

 

TO WIT: not to arrest or issue a traffic fine to Shaun Pillay.

 

NOW THEREFORE the accused is guilty of the offence of offering an unauthorised gratification.

 

COUNT 2

 

CONTRAVENTION SECTION 4(1)(a) READ WITH SECTIONS 1,2, 4(2), 24,25 AND 26(1)(a) OF PREVENTION AND COMBATING OF CORRUPT ACTIVITIES ACT, 12 OF 2004 FURTHER READ WITH SECTION 294A OF ACT 51 OF 1977 - corrupt activities relating to public officers (accepting or offering to accept gratification)

 

IN THAT during June 2017, the specific date unknown to the state, and at or near Klerksdorp in the Regional Division of North West, the accused, a public officer as described in the preamble did unlawfully and intentionally offer to accept and accept from Nawaaz Carim a gratification as defined by the Act to wit: R2 000-00 for his own benefit and/or for the benefit of any other person in order to act personally or by influencing another person so to act, in a manner proscribed in section 4(1)(i) to (iv) of the Act (as described in the preamble),

 

TO WIT: not to arrest or issue a traffic fine to Nawaaz Carim.

 

NOW THEREFORE the accused is guilty of the offence of corrupt activities relating to public officers.

 

IN THE FIRST ALTERNATIVE

 

CONTRAVENION OF SECTION 3(a) READ WITH SECTIONS 1,2,4(2), 24,25 AND 26(1)(a) OF PREVENTION AND COMBATING OF CORRUPT ACTIVITIES ACT, .12 OF 2004 FURTHER READ WITH SECTION 294A OF ACT 51 OF 1977— CORRUPT ACTIVITIES RELATING TO PUBLIC OFFICERS - general corrupt activities relating to any person (accepting or offering to accept gratification)

 

IN THAT during June 2017, the specific date unknown to the state, and at or near Klerksdorp in the Regional Division of North West, the accused, a public officer as described in the preamble did unlawfully and intentionally offer to accept and accept from Nawaaz Carim, a gratification as defined by the act to wit: 2000 .00 for his own benefit and/or for the benefit of any other person in order to act personally or by influencing another person so to act, in a manner proscribed in section 3(1)(i) to (iv) of the Act (as described in the preamble),

 

TO WIT: not to arrest or issue a traffic fine to Nawaaz Carim.

 

NOW THEREFORE the accused is guilty of the offence of corrupt activities relating to public officers.

 

IN THE SECOND ALTERNATIVE

 

CONTRAVENTION OF SECTION 10(a) OF PREVENTION AND COMBATING OF CORRUPT ACTIVITIES ACT, 12 OF 2004 - OFFERING AN UNAUTHORISED GRATIFICATION

 

IN THAT during June 2017, the specific date unknown to the state, and at or near Klerksdorp in the Regional Division of North West, the accused who is a party to an employment relationship as described in the preamble did accept or agree or offer to accept gratification from Nawaaz Carim, the said unauthorized gratification, to wit: R2000- 00 for his own benefit and/or for the benefit of any other person, in respect of doing an act in relation to the exercise, carrying out or performance his powers, duties or functions as a traffic officer within the scope of his employment relationship,

TO WIT: not to arrest or issue a traffic fine to Nawaaz Carim.

 

NOW THEREFORE the accused is guilty of the offence of offering an unauthorized gratification.

 

COUNT 3

 

CONTRAVENTION SECTION 4(1)(a) READ WITH SECTIONS 1, 2,4(2), 24, 25 AND 26(1)(a) OF PREVENTION AND COMBATING OF CORRUPT ACTIVITIES ACT, 12 OF 2004 FURTHER READ WITH SECTION 294A OF ACT 51 OF 1977 - corrupt activities relating to public officers (accepting or offering to accept gratification)

 

IN THAT on or about 4 November 2017 and at or near Klerksdorp in the Regional Division of North West, the accused, a public officer as described in the preamble did unlawfully and intentionally offer to accept and accept from Rameez Minty, a gratification as defined by the act to wit: R2 000-00 for his own benefit and/or for the benefit of any other person in order to act personally or by influencing another person so to act, in a manner prescribed in section 4(1)(i) to (iv) of the Act (as described in the preamble),

 

TO WIT: not to arrest or issue a traffic fine to Rameez Minty.

 

NOW THEREFORE the accused is guilty of the offence of corrupt activities relating to public officers.

 

IN THE FIRST ALTERNATIVE

 

CONTRAVENTION OF SECTION 3(a) READ WITH SECTIONS 1, 2,4(2),24,25 AND 26(1)(a) OF PREVENTION AND COMBATING OF CORRUPT ACTIVITIES ACT, 12 OF 2004 FURTHER READ WITH SECTION 294A OF ACT 51 OF 1977 - CORRUPT ACTIVITIES RELATING TO PUBLIC OFFICERS - general corrupt activities relating to any person (accepting or offering to accept gratification)

 

IN THAT on or about 4 November 2017 and at or near Klerksdorp in the Regional Division of North West, the accused, a public officer as described in the preamble did unlawfully and intentionally offer to accept and accept from Rameez Minty, a gratification as defined by the act to wit: R2 000.00 for his own benefit and/or for the benefit of any other person in order to act personally or by influencing another person in order to act personally or by influencing another person so to act, in a manner proscribed in section 3(1)(i) to (iv) of the Act (as described in the preamble),

 

TO WIT: not to arrest or issue a traffic fine to Rameez Minty.

 

NOW THEREFORE the accused is guilty of the offence of corrupt activities relating to public officers.

 

IN THE SECOND ALTERNATIVE

 

CONTRAVENTION OF SECTION 10(a) OF PREVENTION AND COMBATING OF CORRUPT ACTIVITIES ACT, 12 OF 2004 - OFFERING AN UNAUTHORISED GRATIFICATION

 

IN THAT on or about 4 November 2017 and at or near Klerksdorp in the Regional Division of North West, the accused who is a party to an employment relationship as described in the preamble did accept or agree or offer to accept gratification from Rameez Minty, the said unauthorized gratification, to wit: R2 000.00 for his own benefit and/or for the benefit of any other person, in respect of doing an act in relation to the exercise, carrying out or performance his powers, duties or functions as a traffic officer within the scope of his employment relationship,

 

TO WIT: not to arrest or issue a traffic fine to Rameez Minty.

 

NOW THEREFORE the accused is guilty of the offence of offering an unauthorised gratification.”

 

[3]    The appellant was convicted on the three (3) main counts of contravening section 4(1)(a) read with sections 1, 2, 4(2), 24, 25 and 26(1) further read with section 294A of the Criminal Procedure Act 51 of 1977 [corrupt activities relating to public officers (accepting or offering to accept gratification)] on 22 February 2022. On 10 March 2022 the appellant was sentenced to an effective six (6) years’ imprisonment, which sentence was formulated as follows:

 

“… On Count one, two and three, on each count is sentenced to four years imprisonment of which two years imprisonment is suspended for five years on condition that the accused is not again found guilty of contravening section 4, 3 or 10 of the Prevention and Combating of Corrupt Activities Act 12 of 2004, which offence is committed during the term of suspension and in terms of section 103 of Act 60 of 2000 the accused is declared unfit to possess a firearm.”

 

[4]    The appeal lies against the convictions and sentence with leave of the court a quo.

 

The grounds of appeal

Conviction

 

[5]    The grounds of appeal against conviction are formulated as follows:

 

“REGARDING THE CONVICTION:

 

The learned magistrate made the following erroneous findings of fact and/or law:

 

1.          The learned Magistrate erred and misdirected herself by finding that the prosecution succeeded in proving the Appellant’s guilt above reasonable doubt and rejecting the Appellant's version.

 

2.     The learned Magistrate further erred and misdirected by not finding that the Appellant version of events was reasonably possibly true.

 

3.     The learned Magistrate further erred and misdirected by convicting the Appellant on the offences of corruption.

 

3.1   The learned Magistrate erred and misdirected by not properly considering the fact that material discrepancies were evident from the testimony by the witnesses on the respective counts.

 

4.     The learned Magistrate further erred by not taking all evidence into account when considering the evidence of the State and the defence.

 

5.     The Court erred by finding on a judgment on page 22 that points 3, 4, 7, 8 and 10 were not points in dispute whereas the accused version disputed same.

 

6.     The Court further erred by finding on pages 27, that Mr Pillay the first witness was only confronted with a few aspects but ignored the following aspects in his statement that he was confronted with.

 

6.1   No time was given when this alleged offence took place.

 

6.2   The vehicle that he referred to as a Mazda J[....]3 did not exist and Mr Pillay could not explain why he made mention of J[....]3.

 

6.3   The bank statement presented by the Complainant did not have a place where the alleged money was withdrawn, nor did it provide a time when this withdrawal took place.

 

6.4   The Court ignored that fact that the witness testified that he left Boksburg and arrived in Klerksdorp approximately 09h00.

 

7.     The Court also did not deal with the aspect on why the witness did not report the matter immediately to the Police in this regard the incident allegedly took place on 7 May 2018, but he only reported the matter in November 2018 after discussions with Mr Danger.

 

8.     The Court also did not take in consideration the explanation provided by the witness on why he did not immediately go to the police station in Klerksdorp or in Boksburg or at any other place which affects the credibility of the single witness.

 

9.     The Court erred by finding that the State witness Mr Mokwena not called by the State and with witness the State made available to the defence was not called by the defence and subsequently a negative inference was drawn against the defence whereas the onus rested on the State to proof their case beyond the reasonable doubt.

 

10.   On the 2^nd count, the honourable Magistrate did not consider all the facts relating to this particular charge. The first is that the Complainant in the second count is a single witness and could not provide a specific date in the month of July 2018 when he was allegedly pulled over and only referred to it as a Sunday.

 

11.   The Court ignored the fact that he did not immediately go to a Police Station and spoke to a Mr Dangor who was not called as a witness.

 

12.   The Court did not consider the version of the Accused as true and correct that he was sent to Rustenburg on the 4th of July 2017 which was also confirmed by the OB entry and Ms Thopa who testified on behalf of the State. The Court dismissed the defence version as not true and correct.

 

13.   The Court also ignored the fact that there were other witnesses available to confirm the version of the State which were not called and did not make a negative inference in that regard.

 

14.   In respect of count 3, the Court ignored the version of the Accused and rejected his version as false.

 

15.   The Court erred by finding that Mr Mokwena was not called by the defence who was present on the 4^th of November and 6 November 2017 when the bribe was allegedly received by Mr Mokwena.

 

16.   The Court subsequently made a negative inference to the defence for not calling Mr Mokweiia but no negative inference was drawn against the State on who the onus rests to proof their case beyond the reasonable doubt. This furthermore created the impression that the Accused had to proof his case beyond the reasonable doubt.

 

17.   The Court erred by finding that the Complainants in each case had a discussion with Mr Dangor before case was opened. Subsequently the Court erred by finding that the single witnesses were a credible witness and erred by finding that there were 7 (seven) similarities that proof the case beyond a reasonable doubt on behalf of the State.

 

18.   The Court did not even consider that those similarities could be as a result of the influence and contact the witnesses had with Mr Dangor, which influences the reliability of the single witness.

 

19.   The Court did not consider the fact that the State did not call Mr Dangor who was instrumental in the filing of the complains and charges against the Appellant in this regard the Court ignored the principle as said out in State vs Texeira 1980 (3) SA 755 AD at page 764a.”

 

Sentence

 

[6]    The grounds of appeal against sentence are formulated as follows:

 

“REGARDING THE SENTENCE

 

20.   The learned Magistrate erred and misdirected by not exercising her discretion judicially, properly and in a balanced way with regard to sentencing.

 

21.   The learned Magistrate erred by imposing direct imprisonment onto the Appellant in that: -

 

21.1   the sentences of direct imprisonment are shockingly inappropriate under the circumstances alternatively;

 

21.2   the sentences imposed is totally out of proportion to the gravity or magnitude of the offence and is therefore startlingly inappropriate

 

22.   The Accused is the main breadwinner and is looking after 2 (two) children.

 

23.   The section the Appellant was convicted of states that Appellant if found guilty can be sentenced to a fine or imprisonment. The Magistrate did not consider a sentence of Correctional supervision in terms of Section 276 (1)(h).

 

24.   The learned Magistrate respectfully further erred by not properly considering and evaluating the “cumulative effect” of the sentences imposed onto the Appellant.

 

25.   Relative to the Appellant, the learned Magistrate failed to have sufficient regard to the fact that the Appellant was a first offender;

 

26.   The learned Magistrate respectfully misdirected herself by imposing a long term of direct imprisonment alternatively:

 

27.   The learned Magistrate erred and misdirected by not having proper regard to alternative sentencing options, prior to imposing a sentence of direct imprisonment.

 

28.   The learned Magistrate respectfully further erred by over emphasizing the aspects of retribution and deterrence and not having proper regard to the aspect of individualization in sentencing.”

 

The provisions of section 4(1)(a)(i)(aa) of the Prevention and Combatting of Corrupt Activities Act

 

[7]    The appellant was convicted on each of the three main counts of contravening the provisions of section 4(1)(a) of the Prevention and Combatting of Corrupt Activities Act. Section 4(1)(a) of the Prevention and Combatting of Corrupt Activities Act reads as follows:

 

“4 Offences in respect of corrupt activities relating to public officers

 

(1)    Any-

(a)  public officer who, directly or indirectly, accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of imself or herself or for the benefit of another person;

(b)  …in order to act, personally or by influencing another person so to act, in a manner-

(i)      that amounts to the-

(aa)     illegal, dishonest, unauthorised, incomplete, or biased;

or

(bb)     misuse or selling of information or material acquired in the course of the, exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation;

(ii)     that amounts to-

(aa)     the abuse of a position of authority;

(bb)     a breach of trust; or

(cc)     the violation of a legal duty or a set of rules;

(iii)   designed to achieve an unjustified result; or

(iv)   that amounts to any other unauthorised or improper inducement to do or not to do anything, is guilty of the offence of corrupt activities relating to public officers.”

 

 The Interpretation Clause in the Prevention and Combatting of Corrupt Activities Act

 

[8]    To fully appreciate the charges proffered against the appellant, it is apposite to have regard to the Interpretation Clause and certain definitions in the Prevention and Combatting of Corrupt Activities Act. The charge is introduced with the words “accepts or agrees or offers to accept”. The Interpretation Clause provides as follows:

 

“2 Interpretation

(1)    For purposes of this Act a person is regarded as having knowledge of a fact if-

(a)     that person has actual knowledge of the fact; or

(b)     the court is satisfied that-

(i)      the person believes that there is a reasonable possibility of the existence of that fact; and

(ii)     the person has failed to obtain information to confirm the existence of that fact, and ‘knowing’ shall be construed accordingly.

 

(2)    For the purposes of this Act a person ought reasonably to have known or suspected a fact if the conclusions that he or she ought to have reached are those which would have been reached by a reasonably diligent and vigilant person having both-

(a)   the general knowledge, skill, training and experience that may reasonably be expected of a person in his or her position; and

(b)   the general knowledge, skill, training and experience that he or she in fact has.

 

(3)  (a)      A reference in this Act to accept or agree or offer to accept any gratification, includes to-

(i)        demand, ask for, seek, request, solicit, receive or obtain;

(ii)       agree to demand, ask for, seek, request, solicit, receive or obtain; or

(iii)      offer to demand, ask for, seek, request, solicit, receive or obtain, any gratification.

 

(b)    A reference in this Act to give or agree or offer to give any gratification, includes to-

(i)    promise, lend, grant, confer or procure;

(ii)   agree to lend, grant, confer or procure; or

(iii)  offer to lend, grant, confer or procure,such gratification.

...”

 

[9]    The words “accepts or agrees or offers to accept” are followed by the words “any gratification from any other person”. Gratification is defined in the Prevention and Combatting of Corrupt Activities Act, inter alia, as follows:

 

      “‘gratification’, includes –

 

(a)    money, whether in cash or otherwise;

       …

 

 (g) any other service or favour or advantage of any description, including protection from any penalty or disability incurred or apprehended or from any action or proceedings of a disciplinary, civil or criminal nature, whether or not already instituted, and includes the exercise or the forbearance from the exercise of any right or any official power or duty; …”

 

Factual background

 

[10]  The evidence for the state is as follows. On count 1, Mr Shaun Pillay, a car dealer, testified that on 5 May 2017 he was from Boksburg, Gauteng, travelling in a Mercedes Benz A250 on the N12 road to Speedy Car Sales, a motor vehicle dealership in Klerksdorp. He had purchased a vehicle which he was to collect. About a kilometre away from a shopping mall in Klerksdorp, he thinks was a Mazda BT 50 double cab bakkie with a personalised number plate J[....]3 cut in front of him and he was pulled over to the side of the road. A traffic official, Mr Bhayat (having had a glimpse of his name badge) emerged from the vehicle. Mr Bhayat approached his vehicle as he was still seated in the vehicle and enquired from him if he knew why he had pulled him over. When he indicated that he did not know, Mr Bhayat informed him that he had passed two cameras and he had been chasing after him from Potchefstroom to Klerksdorp until he stopped him. Mr Pillay retorted that it was not possible as he had set his cruise control on the vehicle to 89 km as he knew the speed limit was 80km/h, as he travelled the road many times before.

 

[11]  The appellant thereupon informed Mr Pillay that he was speeding and therefore he would be arrested. Mr Pillay disputed that he was speeding, requested to see the camera footage as proof that he was speeding, but was told that he would only have an opportunity to view the footage after his arrest and at court on the Monday. Mr Pillay questioned the intimation that he would be arrested, whereupon the appellant informed him that he would speak to his colleague, a coloured male who was standing at the traffic vehicle. The said coloured male appeared to make a phone call and Mr Pillay was unable to hear the conversation as he was 10-12m away from the appellant and his colleague. Following this phone call, the coloured male raised his hand with his five fingers in the direction of Mr Pillay. When Mr Pillay enquired from the appellant if that meant R500.00, he was told that it meant R5000.00.

 

[12]  When Mr Pillay indicated that he did not have R5000.00, the appellant told him that he had a fancy motor vehicle and had to have R5000.00 in his bank account. The appellant asked him who he banked with and when he told him ABSA bank, the appellant informed him that there was an ABSA bank about a kilometre down the road at a Mall and explained how to get to it in the Mall. The appellant told him that he would follow him to the Mall and wait outside. He could not say if the appellant or his colleague was the driver of the traffic vehicle. He drove to the Mall where he withdrew two amounts of R3000.00 and R2000.00 respectively. The withdrawal of the two amounts was confirmed by a bank statement which was adduced as evidence, Exhibit “A”. Mr Pillay thereafter drove to the entrance of the Mall where he found the traffic vehicle and parked behind it. The appellant walked to him with what appeared to be a docket of kinds and as he sat in his vehicle handed it to him and instructed him to place the money in the docket. The appellant walked away and instructed Mr Pillay to carry on.

 

[13]  Mr Pillay was aggrieved by having been “robbed” by a police officer and thought of going to report the incident at the police station. However, not knowing Klerksdorp, he proceeded to Speedy Car Sales where he relayed what happened to Mr Farouk Dangor. Mr Dangor suggested that they not contact the police but instead made a call to the HAWKS. Two to three months later, he was approached by an officer from the HAWKS for a statement.

 

[14]  Whilst the cross examination of Mr Pillay was extensive and protracted, the gist thereof is the version of the appellant that no Mazda BT 50 with a personalised number plate J[....]3 existed at the time of the alleged incident, that J[....]3 was allocated to a BMW which had been written off a long time ago, and that the appellant was on duty at the Potchefstroom Testing Station on 5 May 2017.

 

[15]  On count 2, Mr Nawaaz Karim testified that on a Sunday in June 2017, he was driving from Potchefstroom to Klerksdorp in an Audi Q7 motor vehicle when he saw a vehicle behind him flashing police lights at him. He was pulled off the road by the said vehicle which stopped behind him. A person alighted from the vehicle and approached his vehicle and he alighted from his vehicle. The male person dressed in uniform, identified by Mr Karim as the appellant, was wearing a name tag with the name Bhayat on it. He did not know the appellant prior to that day. The appellant informed Mr Karim that he would be arresting him for speeding. Mr Karim requested the appellant to show him the speed he was driving at and was taken to the police vehicle where he was shown a small camera which showed a zero reading. The appellant told him that the speed was cancelled from the camera but was on the system at his head office where there was a lady and the speed registered over 160km/h.

 

[16]  The appellant then told him that if he gave him R2000.00 he could get the lady to cancel the speed infringement, as he and the lady wanted something and he would be free to go. The appellant made a phone call seemingly to the lady. As Mr Karim was with his wife and children who were seated at the back of the car and crying, and feeling intimated by the appellant and the threat of arrest, he gave him R2000.00, which he cannot recall where it came from and left for home in Klerksdorp. He did not report the incident to the authorities that day as they left for home to discuss the incident with his father in law, Farouk Dangor of Speedy Car Sales, who called an attorney.

 

[17]  During September 2017 whilst driving the same vehicle which has a personalised number plate, and with his family in the vehicle, he was again pulled over by the appellant who alleged that he was once again driving over the speed limit. He insisted that he was not and on this occasion the appellant simply allowed him to leave. A statement was eventually obtained from him after Mr Dangor made contact with the HAWKS.

 

[18] As with Mr Pillay, cross examination of Mr Karim was very extensive. The gist of the cross examination of Mr Karim was that the appellant was indeed assigned a BMW with a personalised J[....] number plate, on 4 June 2017 and assigned to do duty in the Rustenburg area, on 11 June 2017 he was not on duty, 18 June 2017 he was on duty and assigned a bakkie and on 25 June 2017 he was once again not on duty. Mr Karrin remained adamant that he was stopped by the appellant driving a BMW on a Sunday in June 2017.

 

[19]  Mr Rameez Minty testified that on 4 November 2017 at around 13h00pm he was on his way to Johannesburg driving on the N12. Being a car dealer, he could not recall the type of vehicle he was travelling in. He was pulled over by a police officer identified as the appellant Mr Bhayat, who emerged from behind him. He thinks he had a run in with him before this day, but that day stood out. The appellant alleged that he was speeding, which speed was recorded in his vehicle and in another office or something to that effect. For that speed record to be removed, the appellant informed, he would have to do something for him. When he indicated that he did not have any cash with him, that he was in rush to get to Johannesburg and that if he wanted anything he could come to EB Motors on the Monday as he was the owner of the dealership to which the appellant agreed. According to Mr Minty he said what he did because he knew he was speeding and would not be given a ticket or be arrested if he gave something to the appellant.

 

[20]  He was allowed to leave and continue his journey to Johannesburg. On the Monday he received a phone call from someone by the name of Steve if not mistaken at around 16h00 who told him that he was there to collect the money on behalf of the appellant, for what happened on Saturday. He went outside and handed over R2000.00 he thinks, to the said Steve.

 

[21]  Some time later on a date he could not recall, he received a call from Farouk Dangor of Speedy Car Sales who enquired from him if something like this had happened to him and he relayed similar incidents to him, including those of Messrs Pillay and Karim. He later furnished a statement about the incident to the police. He could not recall the finer details of the incident when led by the prosecutor.

 

[22]  As with the previous witnesses cross examination was protracted with the gist thereof being that the appellant did not stop Mr Minty as he was in Potchefstroom and therefore could not have stopped him as he alleges.

 

[23]  The State further called Ms Anamasi Intati Tshope, the Chief Provincial Inspector at the North West Provincial Traffic Department. Ms Tshope testified that she knows the appellant who worked under her command at Potchefstroom. Ms Tshope was led on an occurrence book held at her office. In respect of an entry dated 5 May 2017, she testified, inter alia, that a Mazda BT 50 double cab motor vehicle with registration number J[....] [....] North West with kilometre reading 222634 was issued to the appellant by himself as shift leader and returned with a kilometre reading of 222926.

 

[24]  In respect of an entry dated 4 November 2017, she testified, inter alia, that the appellant reported on duty at 12h00 and a Ford Focus motor vehicle with registration number RTM 00 North West was issued to him. All the members who had booked on duty were to conduct stop and check duty at Wolverand on the N12 with visible patrol. On 5 November 2017 the appellant reported on duty at 14h00 with the same vehicle issued to him and Provincial Inspector (PI) Makwena was assigned to do duty with him.

 

[25]  Under cross examination, Ms Tshope was directed to an entry in the occurrence book for 5 May 2017, which showed that the appellant who was on duty with PI Mokwena, at the testing station, which would be in Potchefstroom along the N12, between 07h15am and 10h0am. Ms Tshope noted that there had to be at least 4 checkpoints for the day, but there was only one, which would mean the appellant and PI Makwena went off duty at 10h00am. When alerted to the time off duty being recorded as 15h30pm, Ms Tshope was interrupted when she testified that they would have had to travel along the N12 which stretches from Potchefstroom to Wolmaransstad.

 

[26]  Ms Tshope further confirmed that there was no Mazda BT 50 with a J[....]3 registration and the appellant was not driving such a vehicle on 5 May 2017. When confronted with an occurrence book for June 2017, Ms Tshope confirmed that of the 4 Sundays in June 2017, an entry on 4 June at 09h00am shows that, inter alia, the appellant was on duty and issued with a BMW J[....] 8[....]W. At 14h00pm an entry was made that the appellant had to go to Rustenburg for administration. On 11 June 2017 and 25 June 2017, the appellant was not on duty. On 18 June 2017, the appellant was on duty and issued the Mazda BT 50 J[....] 9[....]W.

 

[27]  That concluded the case for the State.

 

[28]  The appellant’s version is essentially a bare denial of any involvement in any of the three charges proffered against him. It accords with the version put to the state witnesses. The defence case can succinctly summarised as follows. The appellant was employed by the Department of Safety and Transport in the North West Province, as a Provincial Inspector (colloquially referred to as a traffic officer) for 19 years at the time of the respective incidents.

 

[29]  In respect of count 1, the appellant testified that on 5 May 2017, he was on duty with PI Mokwena and conducted what he called cellphone operations at the Potchefstroom Testing Station which entailed the issuing of infringement notices for use of cellphones during driving. This operation was conducted from 07h00am until 10h00am. The appellant finished work at 15h30pm on the said day. An official vehicle with registration J[....] [....] was issued to himself that day which travelled 292 kilometres on the said date. The appellant denied having any contact with Mr Pillay on 5 May 2017 in the Klerksdorp area and denied that he was in the Klerksdorp area on the said day.

 

[30]  In respect of count 2, the appellant testified that he was not on duty on 11 and 25 June 2017. On 4 June 2017 he was on duty from 14h00pm issued with a BMW with registration number J[....] [....]. On that day he was instructed by Ms Tshope to travel to Rustenburg to attend to administrative work. On 18 June 2017 he was similarly on duty and issued with a Mazda BT 50 with registration number J[....] [....]. He denies having had any contact with Mr Karim in June 2017.

 

[31] In respect of count 3, the appellant testified that he reported on duty on 4 November 2017 at 12h00pm. He was assigned to do stop and go and visible patrol duty on the N12 with his colleague PI Mokwena. They arrived at Wolverand at around 16h00pm that day. He denied pulling over Mr Minty between 12h00pm and 13h00pm on the said day as he was not in the Klerksdorp area. He was similarly on duty with PI Mokwena on 6 November 2017 conducting stop and go duty in the Potchefstroom area. He denies receiving any money from either Mr Minty or PI Mokoena on that day.

 

[32]  The appellant did not dispute the withdrawal of R5000.00 in two tranches of R3000.00 and R2000.00 by Mr Pillay on 5 May 2017, but maintained it was not for him. As to the incident of June 2017, the appellant testified that he was reprimanded for not completing the occurrence book in detail but claimed that he was trained in that regard. As to the infringement notice issued at Wolverand for disregarding a robot, where there is in fact no robot, the appellant explained that it could have been issued in Potchefstroom.

 

[33]  The evidence of Ms Emily Sithole did not advance the defence case insofar as she only confirmed a call from a person whom she did not know reporting the officers who had reported on duty on 4 November 2017.

 

[34]  According to Mr Stefaans Masusu Sekete, a PI with 5 years’ service, he reported on duty at 12h00 on 4 November 2017, assigned to do stop and check and visible patrol duties at Wolverand. He reported to Ms Sithole telephonically at 12h55 with six other officers that he reported on duty.

 

The test of appeal - conviction

 

[35]  It is trite that a court of appeal will not lightly interfere with the factual and credibility findings of the trial court. The powers of a court of appeal to interfere with “the findings of fact of a trial court are limited… ln the absence of demonstrable and material misdirection by the trial court, its findings of fact are presumed to be correct and it will only be disregarded if the recorded evidence shows them to be clearly wrong.” See S v Mkohle 1990 (1) SACR (A) at 100e; S v Francis  1991 (1) SACR 198 (A) at 204c-e, S v Monyane and Others 2008 (1) SACR 543 at paragraph [15].

 

Comparative case law

 

[36]  In S v Mahlangu and another[1], the Supreme Court of Appeal in dealing with an appeal against conviction and sentence by two police officers, under the previous Corruption Act, Act 94 of 1992, interpreted section 1(1)(b) of the said Act, which is in the main similar to section 3 of the present Prevention and Combatting of Corrupt Activities Act. The Supreme Court of Appeal dealt with the said section, which is apposite, as follows:

 

“[11]   Section 1(1)(b)(i) and (ii) reads as follows:

 

‘1   Prohibition on offer or acceptance of benefits for commission of act in relation to certain powers or duties . . .

 

(b)  upon whom any power has been conferred or who has been charged with any duty by virtue of any employment or the holding of any post or any relationship of agency or any law and who corruptly receives or obtains or agrees to receive or attempt to obtain any benefit of whatever nature which is not legally due, from any person, either for himself or for anyone else, with the intention –

 

(i)      that he should commit or omit to do any act in relation to such power or duty, whether the giver or offeror of the benefit has the intention to influence the person upon whom such power has been conferred or who has been charged with such duty, so to act or not; or

(ii)  to be rewarded for having committed or omitted to do any act constituting any excess of such power or any neglect of such duty, whether the giver or offeror of the benefit has the intention to reward the person upon whom such power has been conferred or who has been charged with such duty, so to act or not, shall be guilty of an offence.’

 

[12]  The appellants contended that ‘[t]he power or duty to institute a prosecution and to terminate such prosecution, either by withdrawing charges or by stopping a prosecution falls . . . exclusively within the prerogative of the National Director of Public Prosecutions and those specifically appointed by the National Director’. They argued further that Makhamba was not charged and that he would not be charged therefore they could not have ‘intended to withdraw a case or, for that matter, to arrest him.’

 

[13]  The common cause evidence is that Mahlangu and Rametsi are police officers who have the power to investigate a criminal complaint. They, therefore, have been charged with a duty to investigate alleged criminal offences, in this case the shooting incident involving Makhamba. The allegation is that they demanded money from Makhamba for them to withdraw the case. Makhamba had by that time not been charged with an offence. ‘Withdrawal of the case’ could therefore only have been intended to mean and could only have been understood to mean ‘termination of the investigation’. The termination of the case is an act ‘in relation’ to a duty with which the appellants had been charged. It follows that, if the evidence of the state is accepted, all the statutory requirements for a contravention of s 1(1)(b)(i) have been proved.

 

Discussion

 

[37]  The appellant submits that in respect of the convictions in general that the court a quo erred in finding that “In view of the totality of evidence the Court finds the version by the defence as improbable and false and as such the Court rejects the version by the defence.” Alternatively that the court a quo erred in not accepting the version of the appellant as being reasonably possibly true.

 

[38]  The powers of a court on appeal in a criminal matter must be exercised mindful of the onus in a criminal matter. A plethora of decisions from the Supreme Court of Appeal and High Courts can be found in this regard. The appellant relies on S v Shackell 2001 (4) SA 1 (SCA) at paragraph [30] and S v Van der Meyden 1999 (1) SACR 447 (W). For purposes of the present appeal, the following decisions are apposite. In R v Mlambo  1957 (4) SA 727 (A), at 738 A-C where Malan JA said:

 

“In my opinion, there is no obligation upon the Crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man after mature consideration comes to the conclusion that there exists no reasonable doubt that the accused has committed the crime charged. He must in other words, be morally certain of the guilt of the accused. An accused’s claim to the benefit of the doubt that may be said to exist must not be derived from speculation but must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable influences which are not in conflict with, or outweighed by the proved facts of the case.”

 

 And

 

 S v Phallo and Others  (1999) (2) SACR 558 (SCA) at 562g to 563e, where Olivier JA in approving the dictum in R v Mlambo, and with reference to the English decision of Miller v Minister of Pensions [1937] 2 All EL 272 (KB) at 373h, said:

 

“(T)he evidence must reach the same degree of cogency as required in a criminal case before an accused person is found guilty. That degree is well settled. It need not reach certainty, but must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the cause of justice. If the evidence is so strong against a man to leave only a remote possibility in his favour, which can be dismissed with a sentence “of course it is possible, but not in the least probable”, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

 

[39]  The versions put forward in the State case is diametrically opposed to that of the appellant. The Supreme Court of Appeal re-affirmed the approach to the evidence of the State against an accused’s conflicting version in S v M 2006 (1) SACR 135 (SCA) at paragraph [189] as follows:

 

“[189] The magistrate at this stage pointedly alerted himself to the proper approach to assessing whether the State's case has been proved beyond reasonable doubt when measured against an accused's conflicting version. He quoted from S v Mbuli 2003 (1) SACR 97 (SCA) at 110 and S v Chabalala  2003 (1) SACR 134 (SCA). These cases in turn refer to S v Van Aswegen 2001 (2) SACR 97 (SCA), in which the strictures against ‘compartmentalisation’ of evidentiary considerations expressed in S v Van Tellingen 1992 (2) SACR 104 (C) and S v Van der Meyden 1999 (1) SACR 447 (W)  (1999 (2) SA 79) were endorsed. The point is that the totality of the evidence must be measured, not in isolation, but by assessing properly whether in the light of the inherent strengths, weaknesses, probabilities and improbabilities on both sides the balance weighs so heavily in favour of the State that any reasonable doubt about the accused's guilt is excluded.”

 

[40]  The appellant next assails the finding by the court a quo that Messrs Pillay, Karim and Minty were reliable and credible witnesses which is inextricably linked to the witnesses having been single witnesses in respect of each of the alleged incidents. It is trite that the provisions of section 208 of the Criminal Procedure Act 51 of 1977 apply to the evidence of a single witness in so far as it provides that:

 

 “208     Conviction may follow on evidence of single witness

 

 An accused may be convicted of any offence on the single evidence of any competent witness.”

 

[41]  The appellant relies on an extract from the South African Law of Evidence: DT Zeffert, AP Paizes at page 181-182 where the authors with reference to R v Mokoena 1932 OPD 79 at 80 say:

 

“Appellant courts have often said that the trier of fact should in general not be too ready to rely on the evidence of a single witness. The following passage from the judgment of De Villiers JP in R v Mokoena 1932 OPD 79 at 80:

 

“the uncorroborated evidence of a single competent and credible witness is no doubt declared to be sufficient for a conviction by section 284 of Act 31 of 1917 (now section 208 of the CPA), but in my opinion that section should only be relied on where evidence of a single witness is clear and satisfactory in every material respect.”

 

[42]  In S v Otto (A858/2014) [2016] ZAGPPHC 605 (19 April 2016), a decision subsequently confirmed on appeal to the Supreme Court of Appeal reported as S v Otto (988/2016) [2017] ZASCA 114 (21 September 2017), Petersen AJ ( as he then was) said the following in respect of section 208 of the CPA and cautionary rules:

 

“[18] Cautionary rules are rules of practice (so called judge-made rules) calling on the adjudicator of fact to warn himself to be cautious when evaluating evidence which experience has shown to require circumspection… They are no more than guidelines in the evaluation of evidence. In S v J 1[....]6 (1) SA 88 (LA) 89F-H and S v Snyman 1[....]8 (2) SA 5[....] (A) 585H the Court remarked that: “... the exercise of caution should not be allowed to displace the exercise of common sense”. On the approach to the evidence of a single witness, the dictum of De Villiers JP in R v Mokoena, often misconstrued, is often relied upon. The dictum has its origins in the following passage: “Now the uncorroborated evidence of a single competent and credible witness is no doubt declared to be sufficient for a conviction by [the section], but in my opinion that section should only be relied on where the evidence of a single witness is clear and satisfactory in every material respect(my emphasis). Thus the section ought not to be invoked where, for instance, the witness has an interest or bias adverse to the accused, where he has made a previous inconsistent statement, where he contradicts himself in the witness box, where he has been found guilty of an offence involving dishonesty, where he has not had proper opportunities for observation, etc.”

 

[19]  A historical overview of the dictum highlights that a common sense approach to the dictum is called for. In R v Nhlapo the court placed the dictum in context, adding what De Villiers JP said at 17: “it does not mean . . . that an appeal must succeed if any criticism, however slender, of the witness’ evidence were well-founded”. Broome JP was critical of the dictum “as a proposition of law” in R v Abdoorham, finding it “entirely unhelpful”. He accepted that a court “may be satisfied that a witness is speaking the truth notwithstanding that he is in some respects an unsatisfactory witness”. Macdonald AJP in R v J held the view that the cautionary rules are “no more than guides, albeit very valuable guides, which assist the court in deciding whether the Crown has discharged the onus resting upon it”, adding that “the exercise of caution should not be allowed to displace the exercise of common sense” and once a judicial officer has anxiously scrutinised the evidence of a single witness he should not be “swayed by fanciful and unrealistic fears”… In S v Teixeira the court stressed that, in evaluating the evidence of a single witness, “a final evaluation can rarely, if ever, be made without considering whether such evidence is consistent with the probabilities”….”

(my emphasis)

 

[43]  Lastly, on the issue of single witnesses, the following was said in the corruption appeal of S v Mahlangu and another, supra:

 

“[20]   The appellants contended that the trial court as well as the court below disregarded the cautionary rules applicable to single witnesses and traps. The trial court was further criticized for the way it dealt with credibility and probability issues.

 

[21]    Section 208 of the Criminal Procedure Act 51 of 1977 provides that:

 

‘An accused may be convicted of any offence on the single evidence of any competent witness.’

 

The court can base its finding on the evidence of a single witness as long as such evidence is substantially satisfactory in every material respect or if there is corroboration. The said corroboration need not necessarily link the accused to the crime (See S v Hlongwa 1991 (1) SACR 583 (A), Stevens v S [2005] 1 All SA 1 (SCA) para 17 and S v Artman 1[....]8 (3) SA 339 (A) at 341A-B).

…

[23]    The magistrate may not have pertinently used the phrases ‘cautionary rule’; and ‘evidence of a trap’ but did caution himself that ‘[t]he court must consider the evidence in it’s totality. The court must consider the probabilities and improbabilities of both the state case as well as the defence case. The court must consider the credibility of all witnesses. In addition thereto the court must also consider whether the state has succeeded in proving the guilt of each of the two accused separately and (inaudible) from each other’.

 

It is, therefore, disingenuous to argue that the trial court disregarded the cautionary rules applicable to single witnesses and traps. The magistrate considered the conspectus of the evidence and weighed the pros and cons and made a judiciously considered judgment.”

 

[44]  The appellant in respect of the witnesses Messrs Pillay, Karim and Minty highlights purported contradictions in their evidence, which if classified correctly may at most constitute inconsistencies. It is trite that the evidence of a witness cannot simply be rejected on the basis of purported contradictions or inconsistencies. As Nestadt JA stated in S v Mkohle 1990 (1) SACR 95 (A) at 98E-F that:

 

“…contradictions per se do not lead to the rejection of a witness’ evidence. As Nicholas J, as he then was, observed in S v Oosthuizen 19[....] (3) SA 571 (T) at 576B-C, they may simply be indicative of an error. And at 576G-H it is stated that not every error made by the witness affects his credibility; in each case the trier of facts has to make an evaluation; taking into account such matters as the nature of the contradictions, their number and importance and their bearing on the other parts of the witness’s evidence’. In the present case the trial as well as the court a quo did exactly that. It was simply an honest mistake from an imperfect witness.”

 

[45]  It is against the aforesaid background that this Court must consider the present appeal.

 

[46]  The appellant submits that the court a quo erred and misdirected itself in finding that the state witnesses “were reliable and credible witnesses” that “the Court cannot find that any of the state witnesses harboured any negative feelings or vengeance towards the accused in order to implicate him falsely…”. The appellant contends that on the contrary that the witnesses were not reliable and credible witnesses and that their evidence was not satisfactory in every material respect. These submissions are predicated on the following aspects of the evidence of the witnesses.

 

[47]  In respect of Mr Pillay his evidence is assailed on the basis, inter alia, that he thinks the appellant was driving a Mazda BT50 with personalized number plate J[....]3 because he testified that he looked at the number plate when pulled over by the appellant and when the appellant drove off. Mr Pillay was challenged as being an argumentative witness when it was brought to his attention that no such vehicle existed at the time of the incident. The reliability of Mr Pillay’s evidence on the vehicle is further questioned on the basis of the evidence of Ms Tshope who testified that the appellant was not issued with such a vehicle on the day of the incident but with a Mazda BT 50 double cab motor vehicle with registration number J[....] [....]W.

 

[48]  Mr Pillay is further challenged as being an evasive witness who could not recall the time of the incident, the time he left Boksburg and/or arrived in the Klerksdorp area or the time he withdrew money from an ATM. Mr Pillay’s credibility is called into question for reporting the incident to Mr Dangor rather than the police. Premised on these submissions the appellant contends that Mr Pillay suffered from “selective memory”, was not a “reliable and credible witness” and did form the intention to implicate the appellant in the commission of the offence.

 

[49]  In respect of Mr Karim his evidence is assailed on the basis that he was not able to give detailed evidence, that he in fact was not able to identify a date or an approximate time of the alleged incident and was not sure about the payment effected on the day of the alleged incident. As with Mr Pillay, he was also challenged on why he reported the incident to Mr Dangor and not the police. On this basis the appellant contends as with Mr Pillay that Mr Karim could not have been found to be a reliable witness.

 

[50]  Mr Minty’s evidence is assailed on the basis that he could not identify the place where he was stopped along the N12, whether Potchefstroom, Stilfontein or Klerksdorp, that he was unable to identify the vehicle he was travelling in that he became argumentative over reporting the incident to Mr Dangor and for these reasons he was not a credible and reliable witness, being unable to give detailed evidence.

 

[51] A golden thread which runs through the evidence of Messrs Pillay, Karim and Minty is that the officer who approached them wore a name badge on which was inscribed Z Bhayat. Each of the witnesses were stopped by the person wearing the name badge Z Bhayat, who emerged from a vehicle with a personalised number plate commencing with the words “J[....]”, which is used by the North West Provincial Traffic Police.

 

[52]  Save for the appellant denying that he was involved in these incidents and the less than perfect recollection and memory of the affected witnesses, it cannot be disputed that such incidents transpired as testified to by the witnesses. The court a quo, in my view, was correct in finding that the witnesses had no reason to falsely implicate the appellant. Logically, if that were so, a more rehearsed version of evidence would have been expected from them. Whilst they are alleged to have been argumentative in their evidence, this does not detract from the fact that they did not attempt to tailor their evidence when confronted with inconsistencies highlighted to them. It appears common cause in the absence of any evidence challenging same, that the only Provincial Inspector in the North West Province and more particularly from Potchefstroom, with the same initial and surname is the appellant. Mr Minty spoke of a Steven who collected R2000.00 cash from his business premises on 6 November 2017. A Steven Mokwena, Provincial Inspector, was on duty with the appellant on 4 November 2017. Similar fact evidence is found in the modus operandi in the stopping of the witnesses who were driving luxury motor vehicles along the N12 by alleging they had been speeding, calls being made to remove records of such speeding and the payment of money without issuing infringement notices. In respect of Mr Pillay, it is inescapable that he made withdrawals of two amounts at Matlosana Mall which on his evidence he handed over to Z Bhayat in a folder presented to him. As to the identity of the alleged perpetrator, Mr Pillay was not challenged on his opportunity for observation. Mr Pillay had face to face contact with the appellant when stopped, when the purported calls were made and when he had to hand over the R5000.00 cash. Whatever inconsistencies were pointed out in their evidence was clearly attributable to imperfect recollection and the elapse of time since the incidents until trial in the court a quo. Nothing turns on their credibility in reporting the incidents to Mr Dangor and not the police. In respect of the incident of 5 May 2017, the only issue on the vehicle is the registration number which differs. The appellant maintains that he was on duty at Potchefstroom Testing Station, but the kilometres travelled with the vehicle he assigned to himself, contradicts that he could only have been where he claims to have been only.

 

[53]  I have had regard to the evidence in its totality in considering the grounds of appeal against the convictions and conclude that there is no merit in the appeal against the convictions. The appeal against the convictions accordingly stands to be dismissed.

 

Sentence

 

[54]  The appellant assails the effective term of six (6) years imprisonment as over-emphasizing the nature and seriousness of the offence of corruption. In the heads of argument of Counsel for the appellant, nothing is said pertinently in challenging the sentence imposed.

 

[55]  It is trite that sentencing is pre-eminently a matter for the discretion of the trial court. In S v Malgas 2001 (2) SA 1222 Marais JA, said the following in this regard:

 

“[12]   The mental process in which courts engage when considering the questions of sentence depends upon the task at hand. Subject of course to any limitations imposed by the legislature or binding judicial precedent, a trial court will consider the particular circumstances of the case in the light of the well-known triad of factors relevant to sentence and impose what it considers to be just and appropriate sentence. A court excising appellant jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellant court is of course entitled to consider the question of sentence afresh. In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellant court is large. However, even in the absence of material misdirection, an appellant court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellant court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate.” It must be emphasised that in the latter situation the appellant court is not at large in the sense in which it is at large in the former. In the latter situation it may not substitute the sentence which it thinks appropriate merely because it does not accord with the sentence imposed by the trial court or because it prefers it to that sentence. It may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned. No such limitation exists in the former situation.”

 

[56]  More recently in Hewitt v S  [2016] ZASCA 100 at paragraph [8] it was said:

 

“It is a trite principle of our law that the imposition of sentence is the prerogative of the trial court. An appellate court may not interfere with this discretion merely because it would have imposed a different sentence. In order words, it is not enough to conclude that its own choice of penalty would have been an appropriate penalty. Something more is required; it must conclude that its own choice of penalty is the appropriate penalty and that the penalty chosen by the trial court is not. Thus, the appellant court must be satisfied that the trial court committed a misdirection of such a nature, degree and seriousness that shows that it did not exercise its sentencing discretion at all or exercised it improperly or unreasonably when imposing it. So, interference is justified only where there exists a “striking” or “startling” or “disturbing” disparity between the court's sentence and that which the appellant court would have imposed and in such instances the trial court’s discretion is regarded as having being unreasonably exercised.”

 

[57]    As to sentencing in matters of corruption, in S v Mahlangu and another, the Supreme Court of Appeal said:

 

“[25]   ... It is trite that corruption is a serious offence especially when committed by police officers. These are the people appointed to protect society and enforce the law...The trial court stated, correctly, that the fact that the amount paid was relatively small should not be over-emphasized.

 

[26]    In my judgment, the sentence imposed is not unreasonable... The money was not recovered because Mahlangu fled with it. Corruption has plagued the moral fibre of our society to an extent that to some it is a way of life. There is a very loud outcry from all corners of society against corruption which nowadays seems fashionable. Some even go as far as stating that corruption is rendering the state dysfunctional. It is the courts that must implement the penalties imposed by the legislature. It is also the courts that must ensure that justice is not only done but also seen to be done. The trial court considered all the aggravating and mitigating factors and came to the conclusion that an effective imprisonment of 4 years was appropriate. In the circumstances of this case, I agree.

 

 [27]   The appeal against both conviction and sentence is dismissed.”

 

[58]  In the unreported judgment Mpofu and another v S CA01/2020 (17 March 2022) where a sentence of six (6) imprisonment was imposed on appeal on one count of corruption, this Court said the following:

 

“[27]   The sentence imposed in S v Mahlangu and another was pursuant to the 1992 Corruption Act. Corruption in our society, particularly by law enforcement officers has continued unabated and, I may add, has sadly become an entrenched way of life for some law enforcement officers.

 

[59]  The appellant’s personal circumstances were addressed from the bar as follows in the court a quo. He was born on 25 August 1988 and was 44 years old at the time of sentencing. He completed Grade 12. He is divorced and has four (4) children who at the time were aged 19, 16, 15 and 13 years old respectively. The 19 and 16 year old boys lived with the appellant as they were not on good terms with their mother’s boyfriend and the younger girls with their mother in Vryburg. The court a quo gave due consideration to the best interest of the 16 year old child at the time with due reference to S v M [2007] ZACC 18; 2008 (3) SA 232 (CC), in considering the imposition of a custodial sentence.

 

[60]  The court a quo further considered the fact that the appellant was employed as a Provincial Inspector (traffic officer) by the Department of Community Safety and Transport at Potchefstroom and had been employed as such for twenty (20) years, earning R12 800.00 per month at the time of sentence. The dismissal of the appellant from his employment was said to be imminent at the time.

 

[61]  The court a quo correctly found that appellant clearly demonstrated no remorse for his actions in the face of a very serious crime (corruption) which impacted on prospects of rehabilitation. The mitigating factors inherent in the personal circumstances of the appellant were weighed against the prevalence and seriousness of the crime of corruption and the interests of society, where society expects protection from the police rather than being subjected to the treatment of the kind the complainants had to experience in this matter. The court a quo in my view did not misdirect itself in imposing an effective term of six (6) years imprisonment by ameliorating the impact of what could have been considered a harsh sentence otherwise. The appeal against sentence accordingly stands to be dismissed.

 

Order

 

[62]  In the result the following order is made:

 

The appeal against the convictions and sentence is dismissed.

 

 

A H PETERSEN

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

I agree

 

S S MAAKANE

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

APPEARANCES:

 

For the Appellants:                         Adv JJ Gerber

Instructed by:                                 Jan Ellis Attorneys

 c/o Loubser-Ellis and Associates INC

 127 Provident Street

 Padcro House

 Mmabatho

 

For the Respondent:                      Adv K Phetlhu

Instructed by:                                 The Director of Public Prosecutions

 MegaCity Complex

 East Gallery

 3139 Sekame Road

Mmabatho

 

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