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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CA 150/04

In the matter between:

EBRAHIM PATEL APPELLANT

AND

THE STATE RESPONDENT

CRIMINAL APPEAL

MMABATHO

MOGOENG JP AND MOKGOATLHENG AJ

JUDGMENT

MOKGOATLHENG AJ:

Introduction

[1] The appellant was arraigned in the Regional Court at Mmabatho on a charge of corruption in that he was accused of having contravened the provisions of section 1(1) (a) read with section 3 on the Corruption Act 94 of 1992. The charge preferred against the Appellant reads as follows:

“Corruption: Giving a benefit. In that on or about 4 December 2003 and at or near Lehurutshe in the Regional District of Western Region the accused did unlawfully and corruptly give to Memory Keolebogile Choane a person 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 office or any relationship or agency or any law a benefit to wit R2 500.00 which is not legally due to the said Memory Keolebogile Choane with the intent to influence the said Memory Keolebogile Choane to commit or omit to do any act in relation to such power or duty to wit: at customs buses would not be allowed to cross the border”.

[2] The Appellant pleaded guilty to the charge. The Appellant’s counsel then handed a written statement in terms of section 112(2) of the Criminal Procedure Act 51 of 1977 incorporating the Appellant’s plea explanation. The Appellant’s section 112(2) written statement states that;

(a) The Appellant admits all the elements of the offence and pleads guilty to the charge.

(b) He did not have the letter from the Department of Trade and Industry certifying that the buses were SABS approved which he knew was required.

(c) The Appellant approached the officer (Memory K Choane) and told him that he did not have the aforegoing certificate and indicated that he would give Memory K Choane something should he be willing to allow the buses to cross the border without the certificate.

(d) It was for the above reason that he eventually gave the money to Memory K Choane.

(e) He knew and appreciated that his conduct was unlawful. The State accepted the plea of guilty.

The Appellant was convicted and sentenced to a term of four years imprisonment.

The Appellant now appeals against the conviction and sentence.

The Grounds of Appeal

Ad Conviction:

[3] The Appellant contends that the charge sheet was defective in that the alleged conduct constituting the purported act of corruption was not properly defined with sufficient particularity.

[4] The act the Appellant is accused of perpetrating does not constitute an act of corruption as envisaged in section (1) (a) of the Corruption Act 94 of 1992.

The State’s Case

[5] The State alleges that although the charge sheet did not properly describe the particular conduct or the essential act constituting the act of corruption, it does not necessarily follow that the charge sheet is defective.

The State avers that upon the reading of the charge sheet as a whole, coupled with the fact that the Appellant gave the custom official Memory Keolebogile Choane the amount of R2 500.00 to allow appellant’s busses to unlawfully pass through the Koffiefontein border post; the only reasonable inference that can be drawn from these facts, is that; the particular conduct constituting the act of corruption is the Appellant giving the custom’s official a benefit that is not due.

[6] The State submits that the omission in the charge sheet is not fatally defective, because such perceived lack of particularity in relation to the conduct constituting the act of corruption can be cured by the application of section 86 (1) and (4) read with section 88 of the Criminal Procedure Act 51 of 1977.

Appellant’s Case

[7] The Appellant states that his section 112(2) written statement is a nullity in law.

(a) The defect relating to the lack of particularity of conduct that constituted an act of corruption vitiates the charge sheet. Such defective charge sheet cannot be cured by the evidence, that is, Appellant’s section 112(2) written statement.

(b) The conviction was bad in law. The learned Regional Magistrate ought to have found that the charge sheet as formulated was fatally defective.

Analysis and Evaluation of Evidence

[8] The essential contention advanced on behalf of the Appellant is that the charge sheet must be quashed, consequently the conviction should be set aside.

In order to evaluate whether the Appellant’s contention has merit it is pertinent and apposite in my view to have reference to the specific provisions of the Criminal Procedure Act 51 of 1977 impacting on the Appellant’s submissions.

Section 112 (2) of the Act provides as follows:-

“(2) If an accused or his legal advisor hands a written statement by the accused into court, in which the accused sets out the facts which he admits and on which he has pleaded guilty, the court may, in lieu of questioning the accused under subsection (1)(b), convict the accused on the strength of such statement and sentence him as provided in the said subsection if the court is satisfied that the accused is guilty of the offence to which he has pleaded guilty: Provided that the court may in its discretion put any question to the accused in order to clarify any matter raised in the statement.”.

Section 88 of the Act provides:-

“Where a charge is defective for the want of an averment which is an essential ingredient of the relevant offence, the defect shall, unless brought to the notice of the court before judgment, be cured by evidence at the trial proving the matter which should have been averred.”.

[10] A Court of Appeal will only allow an amendment that is the curing of the charge sheet by evidence on appeal if it is satisfied beyond a reasonable doubt that the Appellant will not be prejudiced thereby (See R v Rohloff and Others [1953(1)] SA 274 © at 279; S v F 1975 (3) SA 167(T) at 170G). The onus is on the State to prove the absence of prejudice to the accused (See R v Alexander and Others 1936 A-D 445 at 466-1; R v Bruins 1944 AD 131 at 131-5).

[11] The question that arises is whether the failure to allege essential averments with sufficient particularity vitiates the charge sheet and renders it a nullity. The test is whether the Appellant is sufficiently aware of the charge, and whether he has been adequately informed of the case raised against him by the State.

[13] The informal admissions made by an accused in terms of section 112(1)(b) constitute evidential material, the probative value whereof, the court considers together with the totality of the evidence at the end of the trial. In the absence of controverting evidence these informal admissions are then regarded as evidence at the trial.

The primary purpose of the Appellant’s section 112 (2) written statement, which the Appellant signed, is to set out the Appellant’s admissions and the factual basis supporting his plea of guilty (See S v Hlongwane 1979(4) SA 199 (B) at 200B).

In S v Tshivhule & Another 1985(4) SA 48 (V) Van Rhyn J held, that answers given by an accused in response to questioning in terms of section 112(1)(b) may, for the purposes of section 88 be treated as “evidence” capable of curing a defect in the charge.

[14] The charge, (a) amplified by the Appellant’s section 112(2) written statement incorporating a plea of guilty; (b) the admissions relating to the fact that the Appellant gave the customs official an amount of R2 500.00; (c) the fact that the Appellant knew he had to be in possession of the requisite Department of Trade and Industry documentation, (d) the fact that the Appellant’s two buses crossed the border from Botswana into South Africa establishes what the Appellant did unlawfully. These proven facts manifest and constitute the act of corruption (See S v Badenhorst 1991(1) SACR (T) at 623E-G and 625 A-B).

[15] In the premises, the admissions made by the Appellant in terms of his written section 112(2) statement are competent material capable of curing and remeding the charge sheet in terms of section 88 of the Act (S v Nixon 2000(2) SACR (W) 79 at 86).

[16] The remaining question is whether such curative remedy in terms of section 88 of the Act would prejudice the Appellant in the conduct of his defence.

In my view, there was no prejudice caused to the Appellant by the finding that the Appellant’s section 112(2) written statement is competent material capable of remeding the charge sheet in terms of section 88 of the Act, for the following reasons:

(a) The Appellant who was legally represented intended to plead guilty to the offence of corruption;

(b) The Appellant knew and appreciated the charge the State was raising against him;

(c) The Appellant admits being at the Koffiefontein border post and giving Memory Keolebogile Choane an amount of R2 500.00, in order to allow the Appellant to unlawfully import two buses from Botswana into the Republic of South Africa without the requisite documentation.

Consequently the Appellant’s case was always conducted on the basis that he was guilty. The Appellant has therefore suffered no prejudice in the conduct of his defence (See S v Ndaba 2003 (1) SACR (W) 364 at 385 par 114-118).

In the premises, in evaluating the conspectus of the evidence, the Appellant’s plea of guilty, the Appellant’s section 112(2) written statement, resulting in the rectification of the charge sheet, the evidence shows that the appellant was correctly convicted.

The conviction is confirmed.

Ad Sentence

[17] The general principles the Court adopts in an appeal relating to sentence as stated by Nicholas J in R v Rabie 1975(4) SA 855 (A) at 857D-F are the following:

“1. In every appeal against sentence, whether imposed by a magistrate or a Judge, the Court hearing the appeal-

(a) should be guided the principle that punishment is “pre- eminently a matter for the discretion of the trial Court”; and

(b) should be careful not to erode such discretion: hence the further principle that the sentence should only be altered if the discretion has not been “judicially and properly exercised

2. The test under (b) is whether the sentence is vitiated by irregularity or misdirection or is disturbingly inappropriate.”.

[18] The Appellant contends that the learned Regional Magistrate misdirected himself by adopting an incorrect approach, namely that the Regional and the High Court’s attitude in relation to corruption cases, is that imprisonment is the only appropriate sentence.

The Appellant contends that the learned Regional Court Magistrate failed to consider that:

1. the Appellant is a family man with a fixed employment earning R6 000.00 nett per month;

2. the Appellant was a first offender aged 42 years, and is a father of two minor children;

3. the Appellant did not plan to act corruptly, the offence was committed on the spur of the moment when the Appellant was unexpectedly confronted with the prospect of having t to produce the required documents;

4. the Appellant pleaded guilty to the offence and has shown remorse;

5. the learned Magistrate failed to individualise the punishment;

6. the learned Magistrate did not exercise his discretion judicially, his sentence is not just, balanced, equitable, compassionate and appropriate;

7. the learned Magistrate did not attach sufficient weight to the personal circumstances of the Appellant, he overemphasised the seriousness of the offence, the interests of society, the retributive and deterrent aspect without balancing same with the rehabilitative aspect;

8. the learned Regional Court Magistrate failed to consider other alternative forms of appropriate sentencing.

[19] The learned Magistrate misdirected himself when he stated that the nature of the crime is of such considerable importance and significance and so far reaching that sometimes imprisonment might be the only fit and proper sentence.

[20] The learned Magistrate misdirected himself when he stated that the attitude of the courts, specifically relating to corruption cases is that imprisonment is always the only appropriate sentence. It is patent that the Learned Magistrate did not adequately consider the personal circumstances of the Appellant and the relevant facts of this case.

[21] In the premises the sentence of four years is startlingly disproportionate to the circumstances of this case. This disturbingly inappropriate sentence was arrived at by the learned Magistrate by not having exercised his discretion judicially. The Court of Appeal is therefore entitled to interfere with the sentence.

[22] The court views the conduct of the Appellant in corrupting a customs officer in a very serious light. It is trite that since the advent of our constitutional democracy, international criminal syndicates have infiltrated South Africa, and are unlawfully importing illegal substances and goods into the country.

[23] Customs officials are at the forefront of the concerted integrated efforts at preventing these international criminal syndicates from subverting law and order in our country. The Appellant’s conduct viewed under these circumstances was intended to corrupt this vital law enforcement effort.

[24] In this case, it is incumbent upon the Court to accommodate the legitimate expectations of society for a just sentence by imposing a salutary sentence to emphasise the Courts’ view of the seriousness of the offence.

[25] In arriving at an appropriate sentence, the Court has to balance the seriousness of the offence, with the interest of society and the personal circumstances of the Appellant.

[26] The Court is of the view that the personal circumstances of the Appellant, together with the contemporaneous nature of the contravention and the fact that the State only suffered potential prejudice a direct imprisonment sentence is not the only appropriate sentence.

[27] In the Courts’ view a fine taking into consideration the Appellant’s means to afford to pay same can achieve the same deterrent, retributive and rehabilitative objectives if coupled with a prison term.

[28] The Appellant has genuinely shown remorse and contrition and regrets this serious lapse of judgement. There is no evidence that this offence was premeditated. The State has in essence not suffered any financial loss, though there was prejudice suffered by the State in that its custom’s official was potentially corrupted.

[29] In the result the sentence of four years imprisonment is set aside and substituted with the following:

“The accused is sentenced to a fine of R75 000.00 or four years imprisonment.”

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R D MOKGOATLHENG

ACTING OF THE HIGH COURT

I agree

___________________

M T R MOGOENG

JUDGE PRESIDENT

Date of Hearing : 17 SEPTEMBER 2004

Date of Judgment : 02 DECEMBER 2004

For the Appellant : Adv B Roux (SC)

For the Respondent : Adv Moboane

Attorneys for the Appellant : A K Ahmed

Attorneys for the Respondent : State Attorney

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