Pangela v S (A83/2020) [2021] ZAFSHC 143 (21 May 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Appeal No: A83/2020

In the matter between:

ISHMAEL

PANGELA

Appellant

and

THE

STATE Respondent

CORAM: MATHEBULA J et

NEKOSIE AJ

JUDGMENT BY: NEKOSIE, AJ

HEARD ON: 21 MAY 2021

DELIVERED ON: The judgment was handed down electronically by circulation to the parties` legal representatives by email and release to SAFLII on 21 May 2021. The date and time for hand down is deemed to be 21 May 2021 at 12h00.

[1] The appellant was convicted on 25 July 2019 in the Regional Court, Bloemfontein, of contravention of Section 3(a)(i)(aa) read with Sections 1, 2, 24, 25, 26(1)(a) of the Prevention and Combatting of Corrupt Activities Act, no. 12 of 2004. He was sentenced to 36 months imprisonment which was wholly suspended conditionally for 5 years. He now appeals against his conviction only.

[2] The Appellant's Notice of Appeal and the record of pleadings in this matter were filed out of time, with the result that the appeal has lapsed. In his quest to resuscitate it, he filed a substantive application to that effect. The State did not oppose the condonation application. The Appellant is making a compelling case for the order to be granted. The non-compliance with the rule is condoned and the appeal is reinstated.

[3] The salient facts of the matter are that the appellant was the investigating officer of the case wherein the complainant was assaulted and robbed. After the complainant was discharged from hospital he made an appointment to meet with the appellant at Mimosa Mall in Bloemfontein. The purpose of the meeting was for the complainant to give his statement to the Appellant. The meeting took place as planned. The appellant`s colleague, Mr Vinger, was present but it appears that at the critical time was sent to fetch a document, to wit a J88, from Park Road Police station.

[4] It was alleged that during this meeting the complainant gave the appellant R1 000-00 advance of what would be a total of R4 000-00 to expedite the investigation of his case. The complainant’s employee referred to as Mr Mahlobonke was present. He, on instruction of the complainant went to withdraw R2 000-00, a R1 000-00 of which he, Mahlobonke, received and the other R1000-00 was given to the appellant.

[5] The appellant denied receiving any money from the complainant. The appeal therefore centres on whether or not the trial court erred in finding that the complainant handed the money to the appellant or not.

[6] The trial court`s decision is based on her findings of credibility in respect of the respective witnesses, including the appellant. It is trite that the Appeal Court has limited power to interfere with findings of credibility by the trial court because the trial court has the advantage of seeing, hearing and appraising witnesses.[1]

[7] In a well-reasoned judgement the trial court, with reference to S v Chabalala[2] adopted the correct approach in her evaluation of the evidence as a whole and cannot be faulted in this regards.

[8] With the evidence of the complainant being crucial to proving the guilt of the accused the magistrate evaluated his evidence with a great degree of caution. She considered all the corroboration for his evidence. Amongst others she considered the fact that it was common cause that the meeting took place. The witness was able to recall what the respective people present had for breakfast. He was corroborated by Mahlobonke whose presence was never disputed until the appellent came to testify. The magistrate also considered the fact that the witness exonerated Mr Vinger, the colleague of the appellant, who was previously an accused in the matter, when he testified that Mr Vinger seemed puzzled when the money was handed to the appellant.

[9] The conflict between the versions of the state witness and the defence witness was correctly adjudicated with reference to S v Janse Rensburg[3]. She found numerous contradictions between the defence witnesses indicative of their attempt to mislead the court and rightly rejected their version.

[10] The view was advanced to the court that the complainant was dissatisfied with the manner in which the appellant handled his case and concocted the version of handing over of money to the appellant to cause him trouble. This does not correlate with the fact that the complainant only made reference of his dissatisfaction with the investigation to the appellant`s superior officers. He only informed them about the money after he consulted an attorney and learned that he should not have to pay any money to expedite the investigation of a criminal complaint.

[11] Counsel for the appellant raised a point about the failure of the trial court from treating the complainant as an accomplice. It was not the case of the Appellant in the trial and neither was it one of the grounds of appeal relied upon. I find no merit in this argument. In the event that I am wrong in this regard, in the context of the Act, the complainant would be a co-perpetrator and could not be an accomplice.

[12] On consideration of all the evidence I cannot find any misdirection or irregularity by the trial court that could warrant interference by this court. In consequence the appeal stands to be dismissed.

I will therefor make the following order:

1. The appeal against the sentence is dismissed.

NEKOSIE,

AJ

I concur

MATHEBULA J

For the appellant:

Adv. K Mohono

Instructed by:

Mokomo Attorneys

Bloemfontein

For the respondent: Adv SM Mthethwa

Office of the Director of Public

Prosecutions: Bloemfontein

[1] S v Francis 1991(1) SACR (A) at 204

[2] S v Chabalala 2003(1) SACR 134 (SCA) at p139 I-J

[3] S v Janse van Rensburg 2009(2) SACR 216 (C)