S v Chokwe and Others (96/03) [2005] ZANWHC 12 (27 January 2005)

IN THE HIGH COURT

OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO.: 96/03

In the matter between:

BENJAMIN CHOKWE First Appellant

THOMAS NGOBENI Second Appellant

PATRICK MONYAMANE Third Appellant

and

THE STATE Respondent

JUDGMENT

GURA J

[1] The three appellants (hereinafter referred to as the accused), all members of the South African Police Services, were convicted of corruption and sentenced to five years imprisonment each by the Regional Court of Odi. They now appeal to this Court against their convictions and resultant sentences.

[2] Five state witnesses testified at the trial. Mr Samson Gumede, the complainant, gave the following account: On 12 February 2000 he received a phone call from Accused 3 who wanted to see him in connection with his (Samson’s) City Golf car. Later that day Accused 2 and 3 arrived at his place of work and told him that they suspected his car to be stolen. He denied this. Accused 2 told complainant that they would impound the car until he could give them R2000-00 to release it. He promised to raise the money.

[3] At around 16h30 on the same day, Accused 1, 2 and 3 called at complainant’s place again. They impounded the complainant’s car (“the Golf”). They took complainant along to Thutanang Police Station. Complainant then phoned Isaac Matshego to bring the money. He promised to do it but there was an incessant delay. Accused 1 phoned Isaac from his cellular phone. He talked to him and then gave the phone to complainant. Accused 1 then instructed complainant to ask Isaac why he was not coming. According to complainant, Isaac said he was on his way.

[4] When darkness fell, complainant was taken out of the Jetta car into an office. Accused 3 telephoned and talked to Isaac about his delay. Thereafter Accused 3 gave the phone to complainant to talk to Isaac. The latter kept on saying that he was on his way. Suddenly, Accused 3 received a phone call and thereafter they left. They drove away in the police Jetta car to meet Isaac at Molapo Maseku Street, between Winterveldt and Soshanguve. Accused 1 was the driver. Accused 3 sat next to him. Complainant sat behind the driver whilst Accused 2 sat behind Accused 3.

[5] At Molapo Maseku they saw Isaac’s car stationary. They parked just in front of him, the two cars facing each other. Isaac alighted from his vehicle and went to talk to Accused 3 through the car window. He told Accused 3 that he had brought the money and they should release the Golf. Accused 3 asked him “Where is the money?”. Isaac went back to his car to fetch it. He gave the money to Accused 1. At that stage the roof light of the police car was on. Unbeknown to the four occupants of the Jetta car, two detectives, being Inspector Sere and Sikho were hiding at the back seat of Isaac’s car. They then came out and warned the three Accused that they were under arrest. Accused 1 threw the money out through the window. There was gun fire. Heaven knows why no one was injured. Accused 3 disappeared under the cover of darkness. Accused 1 and 2 were arrested.

[6] Isaac Matshego testified that on the date in question complainant telephoned him to say that the police had impounded his car. At around 17h00 he received a call from Sonio who said that complainant had been arrested. He (Sonio) said that the police wanted R2000-00 before they could release complainant. Later that day Sonio and Ebrahim came to Isaac. They gave him the cellular phone numbers of one of the accused because they had asked that Isaac should call them.

[7] He dialled the numbers and the phone was given to complainant. The latter urged Isaac to give him R2000-00 because the police wanted it. These three (Isaac, Sonio and Ebrahim) reported to Inspector Sikho who then telephoned the Anti-Corruption Unit of the South African Police Services (SAPS). Inspector Sere from the Anti-Corruption Unit then joined them at Mabopane Police Station.

[8] The police did not have official money to operate a trap. Isaac was then sent out to collect money at his house. On the way to his house, Isaac received a call from Inspector Sere who told him to expect a call from “those people”. Two minutes later, he received a call from “the people who wanted the money”. They said they are the people who are with complainant. He told them that he was at a friend’s place at Morula View still trying to accumulate money.

[9] Arriving at his house he took several envelopes containing money out of the safe. On his way back he received another call from the people who wanted the money. He told them that he was filling petrol at Walter’s Garage. The sealed envelopes were opened at Mabopane Police Station by Ebrahim, Sonio, Inspectors Sere and Sikho. The total amount was R800-00. He told “those people” that he was afraid to meet them at the police station because they would probably arrest him. They agreed to meet at Molapo Maseku road. They drove off, Isaac being with Sonio and Ebrahim in his car whilst Inspector Sere was travelling with Inspector Sikho and another person. On the way these people phoned Isaac again. This time, they wanted to know the identity of his car. He told them that Samson knows it. Isaac then stopped and told Inspector Sere. Ebrahim then got off the car and the two Inspectors got into the back seat of Isaac’s car. Inspector Sere’s car vanished.

[10] At the cross-roads of Molapo Maseku, Isaac received yet another call from those people. They wanted to know where he was. A car then emerged from his front. It drove and passed them and it later re-emerged from their front again. It stopped just in front of his car. Park lights of both vehicles were on. He walked to the left side of that car. Its roof light was on. Accused 1 was the driver of this car, Accused 2 and Samson were on its back seat. Accused 3 was next to the driver on the front seat. He peeped through the window and Accused 3 asked him where was the money. He told him that he wanted to check first if Samson was there.

[11] He went back to his car, fetched the money and gave it to Accused 1. Infact, when he inserted his hand through Accused 3’s window, both Accused 1 and 3 stretched their hands for the money. He went back to his car. The two Inspectors approached the accused and there was gun fire sound. Accused 3 ran away.

[12] The next three witnesses, Sonio Masiu, Jonas Sere and Orphan Siko corroborated the version of the previous witnesses. Both Sonio and Sere say that Accused 1 threw the money out of the window when he saw the two detectives. Sere further says it is Accused 3 and Sikho who fired shots.

[13] The three accused testified in their defence. Their versions can be summarised as follows: Accused 1 is a captain and was a shift supervisor that day. Accused 2 is a reservist constable and Accused 3 is a sergeant. All three were attached to the Motor Vehicle Theft Unit. Accused 2 and 3 suspected the Golf to be stolen. They (Accused 2 and 3) impounded it and asked the complainant to bring the motor vehicle registration documents by 14h00. He did not. They arrested him. Accused 1 was not involved in the investigation of this case. All he did was to assist in conveying Accused 2 and 3 in his car because there were no official cars.

[14] After their arrival at the police station complainant phoned Isaac who promised to bring the motor vehicle registration documents. Around 19h00 they drove to Mabopane to fetch the motor vehicle registration documents from Isaac. At the intersection of Block JJ and HH complainant identified a car as that of Isaac. They stopped. Isaac came to talk to Accused 3. The latter asked him where were the motor vehicle registration documents. He went back to his car to fetch them. Suddenly two armed men emerged from his car and arrested them. Accused 3 hit on the run. Accused 1 was asked where is the money as he was being searched. Accused 1 says their arrestors picked up the money from the ground.

[15] Despite some contradictions on the evidence of the state, the Regional Court Magistrate found that the five witnesses had corroborated each other. The account given by the accused was rejected as not being reasonably possibly true. Counsel for the accused attacked the finding of the trial court on the following grounds:-

- firstly: the contradictions in the witnesses’ evidence with regard to the exact amount which was used in the execution of the trap;

secondly: the contradictions in the evidence of the state witnesses with regard to the visibility at the scene;

thirdly: the contradictions in the witnesses’ evidence with regard to whether accused 1 threw the money out of the window of the motor vehicle.

The amount of money used in the trap

[16] The evidence of the state is that the accused demanded an amount of R2000-00. The police could not raise this money. Isaac was personally requested to assist after he indicated that he had money at home. That money was nothing near R2000-00. The reason why the accused were not given R2000-00 in accordance with their request is simply that no one could raise it. The exact amount which Isaac brought is a subject of controversy. The other witnesses say it was R800-00, but Sere says it was R1000-00. According to Sere, he wrote the serial numbers of these bank notes in his pocket book. As he was busy doing so “those people” insisted that they must hurry up. Then he stopped writing and they left. It was after he wrote the serial numbers of bank notes which made R800-00 in total. He says he kept R200-00 in his pocket. In my view, no other witness except Sere would be more authentic as regards the exact amount of money which was used. He is the only one who wrote it down. He had the advantage of referring to the pocket book entries at the trial. After a lapse of months and years, who can recall the exact amount which was used if this was not in writing?.

The identity of the trap money

[17] The next issue is the identity of the trap money. This money was not handed in at the trial. Sere’s pocket book was however handed in, the serial numbers of the bank notes appeared therein. His evidence (and this has not been challenged at the trial) is that after the arrest of the accused, he compared the bank notes numbers with those written in his pocket book. They tallied.

The visibility at the scene of crime

[18] All state witnesses corroborated each other on the fact that there was an appolo light, some distance from the scene. The contradictions centre around whether the headlights or the park lights of the two cars and/or the roof panel light of the jetta car were on. Four of the state witnesses testified that both cars had their lights on and the jetta car had its roof light also on. Only the first state witness, Samson, says only the roof light of the jetta car was on. The evidence is overwhelming to prove that there was some form of artificial light at the scene.

Did anyone see accused 1 throw the money out through the window?

The question arises whether anyone did see accused 1 throwing money out of the window. Sere confirmed that he saw him do that. Samson gave two versions; in his statement to the police he said the police told him that accused 1 threw the money out. In court he said that he just saw accused 1 waving his hand. Isaac testified that as Siko and Sere approached the jetta car, he saw accused 1’s hand moving. Later he said that he saw money flying at the driver’s side. The trial court found that accused 1 received the money from Isaac and that he threw it out of the window when he saw that trouble was on his way. The court further found that the real and only reason why the accused drove to the scene of crime was to receive the bribe, they had failed to make a single entry in the police books about the arrest or the charge against Samson. They had not charged him. However, they were convinced that the Golf was stolen. The trap money was found at the right side of the car. It was the same police trap money which he had received from Isaac. I am not convinced that the trial court was wrong in these factual findings.

[20] I have stated earlier that notwithstanding the contradictions on the version of the state, the trial court was satisfied, and so am I, that the truth had been told. On the date in question several telephone calls were received by the state witnesses demanding the payment of R2000-00 for the liberty of Samson. These were many telephone calls. The callers, at some stage talked to a detective to bring the money. These callers claimed to be with Samson at the time of the call. A police trap was then organised on the basis of these requests.

[21] If these three accused are not guilty then it means this: some men totally unconnected to the accused, phoned the witnesses for the state demanding R2000-00 for the release of Samson. A deal was then struck between the state witnesses and these men. An agreement was made that the money would be delivered at Molapo Maseku road. Within two minutes before these men arrived at the scene they checked Isaac’s whereabouts by means of a telephone. Having identified Isaac’s car, these men parked in front of him. Unfortunately, when the money was handed over, it was handed to innocent people as the men who demanded R2000-00 for the whole day were not at the scene. In my view, this is a rare coincidence. It is highly improbable that it can happen in this way.

[22] Accused 3 ran away being under the impression that they were being attacked by thugs. He walked to his house, got into his bed and slept. He never reported to the police that his colleagues and a suspect were under attack. The following day, after sunrise, accused 3 walked to work without reporting that he left his colleagues under attack the previous night. This unusual conduct of accused 3 is yet another confirmation that he never ran away from thugs but from detectives who had just identified themselves. All these telling improbabilities led the trial court to the conclusion that the versions of all the accused were not reasonably possibly true.

[23] I am therefore of the view that there is no merit in this appeal. The conviction of all the accused is justified by the weight of the evidence of the state.

SENTENCE

[24] Counsel for the accused submitted that the trial court erred in overemphasising the seriousness of the offence and the deterrent effect of the sentence. She referred us to the following cases where lesser sentences were imposed:-

S v Newyear 1995(1) SASV 626(A); S v Mogotsi 1999(1) SACR 604 (WLD) and S v Davids 1998(2) SACR 313 (CPD). All these cases except one (Davids) were considered by the trial court before imposing sentence.

[25] Newyear was a constable in the South African Police Narcotics Bureau. After a conviction of corruption he was sentenced to seven years imprisonment of which two years were suspended. On appeal, the sentence was altered to four years imprisonment of which two years were suspended. He had 25 years service in the Force. He received four tyres in exchange for the withdrawal of a case of dealing in mandrax. Mogotsi was a 30 year old traffic officer who received a bribe of R100-00 and cancelled a traffic summons. He was sentenced to four years imprisonment of which two years were suspended. The sentence was not altered on appeal and the court remarked:-

“Although the sentence was somewhat higher than the court itself would have imposed, it did not induce a sense of shock and in the absence of a misdirection the court could not interfere on appeal”.

Davids, a prison warder, aided a prisoner, who was serving nine years in jail, to escape. He was promised R5000-00 plus a BMW car. At the time of the commission of the offence, Davids was 21 years old and at the time of his sentence he was 24 years old. On appeal, he was sentenced to two years imprisonment.

[26] Counsel argued before us that the present sentence was “buite verhouding met vonnisse wat in soortgelyke sake deur hierdie en ander howe opgelê word.” It is in the discretion of the trial court to impose sentence and each case must be decided on its own merits. The following remarks by Rumpff HR are apposite here:-

“By appél is dit van belang dat, wanneer daar beweer word dat die landdros of Regter ʼn mistasting begaan het, daar nie op denkbeeldige mistastings gesteun word net om te bevind dat die Appélhof die vonnis kan verander nie. Soiets wek geen vertroue by die landdros of Regter wat die saak verhoor het nie en het buitendien geen oortuigingskrag nie. Daarom word so dikwels deur ʼn Appélhof gesê dat hy self ʼn ander vonnis sou opgelê het maar in die besondere geval nie kan ingryp nie.”

(S v Holder 1979(2) SA 70 (AA) at 75C)

[27] Accused 1 is a 46 years old, married and has two minor children. His wife is unemployed. He is presently on suspension and a disciplinary hearing is pending against him. He has no income presently. Previously he had a heart operation. The seriousness of his heart problem is unfortunately not clear to me. He is 23 years in the force and a captain by rank. Accused 2 is a reservist constable, aged 38. He is married and has three children. His wife is unemployed. Accused 3 is a sergeant who is 40 years old. He has two minor children with his unemployed wife. He has since been declared medically unfit for duty. His monthly pension is R1800-00.

[28] Corruption rears its ugly head in every corner of the public sector. It is high time that courts should send a clear message that offenders will not be handled with velvet gloves. The seriousness and prevalence of this offence calls for direct imprisonment without an option of a fine. In meting out sentence, I think it is appropriate to take into account also the possible offence for which bribery was received. Had he been charged, Samson Gumede would have faced a charge of theft of a motor vehicle or possession of a stolen vehicle. This offence is serious and prevalent and goes to the core of the economy of South Africa. Anything which can be done to assist car owners and the insurance industry in this regard, must be done immediately.

[29] Sentences which are imposed by courts should keep pace with the incidence of crime. What was a good sentence in 1995 may not necessarily be a fitting sentence nine years later. Especially if regard is had to the prevalence of the offence nowadays. I bear in mind that prison warders, unlike police officers and detectives, are at the end of the criminal justice conveyer belt. If a corrupt prison warder assists a prisoner to escape, a simple audit will reveal that one prisoner has absconded. This is not the case with corrupt police officials who keep a blind eye on crime and criminality. It is difficult to detect that a police official has taken a bribe from a suspect instead of arresting him/her for car theft. One needs a proper police trap to unearth this evil. This difference, between a prison warder and a police official should play a vital role on sentences of corrupt officials.

[30] The personal circumstances of all the accused are almost the same. The Regional Court magistrate was therefore justified in not differentiating between the sentence imposed on the three accused. I find nothing in the sentence which warrants an interference by this Court.

[31] In the result, the following order is made:-

The appeal by all the accused against their convictions and sentences is dismissed.

Consequently their convictions and sentences are confirmed.

SAMKELO GURA

JUDGE OF THE HIGH

COURT

I agree

R.D. HENDRICKS

DATE OF HEARING : 29 October 2004

DATE OF JUDGMENT : 27 January 2005

COUNSEL FOR APPELLANTS : Adv. C.J. Zwiegelaar

COUNSEL FOR RESPONDENT : Adv. G.S. Maema

ATTORNEYS FOR APPELLANTS : H.J. Groenewald Attorneys

C/O Adv. C.J. Zwiegelaar

Kelgor House

14 Tillard Street

MAFIKENG