S v Lachman

• Jurisdiction: South Africa
• Judge: Mthiyane JA, Van Heerden JA and Griesel AJA
• Judgment Date: 15 March 2010
• Hearing Date: 19 February 2010
• Docket Number: 432/09
• Citation: 2010 (2) SACR 52 (SCA)
• Court: Supreme Court of Appeal
• Counsel: BP Geach SC for the appellant. N Henning (DPP, Grahamstwon and Bloemfontein) for the State.

Griesel AJA:

[1] The appellant was convicted in the regional court, sitting in East London, on a charge of corruption in contravention of s 1(1)(b) of the I Corruption Act 94 of 1992. [1] The essence of the charge was that, whilst employed as an auditor in the East London office of the South African Revenue Service (SARS), the appellant corruptly attempted to solicit a

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bribe from a certain Mr Kwame Mokoena as a reward for assisting the A latter to make his tax problems 'go away', which actions constituted an excess of his powers or a neglect of his duties as such auditor.

[2] After his conviction, the appellant was sentenced to five years' imprisonment of which two years were conditionally suspended. His appeal to the Eastern Cape High Court, Grahamstown, against the B conviction and sentence was unsuccessful, hence this further appeal against his conviction, [2] which comes before us with leave granted by this court.

Factual background C

[3] The evidence of Mokoena was that he was at all material times the owner of a business entity styled Investorex trading as Kwasaka Agencies. He was registered with the East London branch of SARS as a vendor liable to pay Value Added Tax (VAT). His file at SARS was attended to by the appellant in his capacity as auditor, together with another auditor, a certain Ms Sabrina Taylor. D

[4] On 23 September 2003 Mokoena received a telephone call from the appellant who sought certain details relating to Mokoena's tax affairs. Mokoena made an appointment to see the appellant at the SARS offices later that same day to discuss the matter. At the interview, the appellant pointed out to Mokoena that he had not submitted his tax returns and E that SARS had decided to conduct an audit of his business affairs. Mokoena was accordingly requested to submit certain further information to SARS.

[5] Shortly after the interview, on his arrival at home, Mokoena received F an anonymous text message (commonly referred to as an 'SMS', an abbreviation for 'short message service') on his cellphone, emanating from a cellphone with the number 0726786492. The message was to the following effect: 'I can help you with your tax affairs, you have got problems and I can help you with your tax affairs.' Mokoena was instructed by the anonymous author not to call the number from which G the SMS was sent, but to reply only via SMS as it was dangerous to talk over the telephone, with the sender working at SARS.

[6] Later that evening Mokoena received further SMSs from the same cellphone number, one advising him that he would only have to pay SARS the amount of R10 000 in order to get all his books with SARS up H to date, and another one requesting him to pay R60 000 'in order to make [his] problems with the Receiver disappear'. After commenting to

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A his wife that the person was playing a game with him, and that he did not know what it was all about, he sent an SMS in reply to the effect that he only had R30 000 available. The response thereto was to the effect that, 'I am doing you a favour, that's only half the amount and I am doing you a favour'.

B [7] The following day Mokoena received a further SMS, enquiring when he would have the money available. He decided to ignore this SMS, as also further SMSs he received that day. A few days later he received a fax from the SARS offices, co-signed by Ms Taylor and the appellant, requesting a list of his assets and his banking and other details. Receipt C of the fax was followed by another SMS to the following effect: 'I work at SARS; nobody can help you but me. Not even your accountant can help you.' A further SMS followed shortly afterwards, enquiring whether Mokoena had received the fax.

[8] Mokoena subsequently had another meeting with the appellant at the D SARS offices during which the appellant informed Mokoena that the Special Investigating Unit of SARS intended to charge him and secure a criminal conviction for tax evasion. The appellant highlighted the seriousness of the matter. Within 20 or 30 minutes of his leaving the SARS offices Mokoena received another SMS that canvassed the same aspects that had been raised with him by the appellant during the earlier E meeting. Mokoena described his bemusement at these events as follows:

'And by this time I was just very, very, very suspicious as to how things were developing. Every time I received a fax, I'd get an SMS. Every time I received a call or I spoke to somebody, I'd receive an SMS.'

F [9] The SMSs continued thereafter, Mokoena stating that in total he probably received more than 200 of them over a period of just over three weeks. All the SMSs emanated from the same cellphone number.

[10] On Monday, 13 October 2003, Mokoena received a further SMS instructing him to pay R20 000 or 'the deal was off', thus leaving him to face the consequences of the investigation by the Special Investigating G Unit. By this time, according to Mokoena, he realised that he could not trust anybody at SARS 'as I felt as though I was either being framed or trapped or pressured into something'. He accordingly consulted his attorney, who advised him to enlist the services of a private investigator.

H He thereupon approached Mr Tyrone Power, a private investigator, who advised him to 'play along' with the author of the SMSs while Power undertook to contact SARS.

[11] Matters came to a head on the morning of Thursday, 16 October 2003, when Mokoena received a further SMS instructing him to deliver I the R20 000 to the author at the offices of SARS in East London. Mokoena drew R20 000 in notes, whereafter he, together with his attorney, Mr Malusi, met Power at the latter's office. There Power introduced him to Captain Buys and Inspector McIntyre of the Organised Crime Unit of the South African Police Service, who had in the interim been contacted by Power. Whilst he was with Buys at Power's J office, Mokoena received a further series of SMSs asking whether he had

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the money ready. Upon ultimate confirmation by Mokoena that the A money was available, he was instructed by the anonymous author via SMS to place the money in an envelope addressed to 'Mr Nkula c/o Riette Fellows', marked 'Private and Confidential', and to deliver the envelope to the reception desk at the SARS offices, the receptionist to be informed that the envelope had to be taken to Ms Fellows' desk. Buys B accordingly marked an envelope as instructed and placed the money in the envelope. At the suggestion of Buys, only R5000 was placed in the envelope, instead of the R20 000 demanded in order to reduce the risk of the money being lost. Prior to placing the money into the envelope, the relevant notes (or at least some of them) were photocopied in Power's office so as to facilitate later identification. C

[12] Buys then set about making arrangements for the operation to be carried out. Thus he enlisted the services of Malusi's driver to deliver the envelope at the SARS reception desk; he arranged for a member of Power's staff to video the delivery of the envelope and the collection D thereof by whomever came to collect it; he secured permission from Ms Perks, a member of the investigative personnel of SARS, for Buys and McIntyre to station themselves inside the SARS building before the delivery and collection of the envelope took place. He also applied telephonically to the relevant police official for the necessary permission to conduct a covert operation, which was duly authorised. E

[13] On arrival at the SARS offices Buys and McIntyre took up position in a storeroom, from which vantage point they had a view of the passage between the appellant's office and the stairway leading down to the ground floor and the reception area. A further police officer, Inspector F Mbiko, was stationed in the reception area for the purpose of witnessing the delivery and collection of the envelope. An employee of Power with a concealed video camera was with him. Power and Mokoena remained in Power's car, which was parked in the street outside the SARS building.

[14] In due course Malusi's driver entered the SARS building with the G envelope, approached Ms Cousins, the SARS employee on duty at the reception desk, and advised her that he had come to drop off an envelope for Ms Fellows. Ms Cousins had earlier been alerted by the appellant that an envelope would be dropped off later that morning for either him or Ms Fellows. Upon arrival of the envelope, Ms Cousins accordingly H telephoned the appellant to advise him of this fact. The appellant came down to the reception area and Ms Cousins pointed out the man who was still holding the envelope. The appellant simply collected the envelope and immediately returned to his office upstairs. On the way, Mbiko followed him, calling out to him to stop, but he simply carried on I walking. He went into the office of Ms Fellows, who to his knowledge was not at work that day, and left the envelope on her desk. On exiting from that office he was confronted by Buys and McIntyre. They retrieved the envelope from Ms Fellows' office and informed the appellant that he was suspected of corruption. The appellant was searched and a...