S v Mahlangu and Another

• Jurisdiction: South Africa
• Court: Supreme Court of Appeal
• Judge: Streicher JA, Shongwe JA and Petse AJA
• Judgment Date: 01 April 2011
• Citation: 2011 (2) SACR 164 (SCA)
• Hearing Date: 18 March 2011
• Docket Number: 497/2010
• Counsel: JF Schaefer for the appellants. N Naidoo (DPP, Johannesburg and Bloemfontein).

Shongwe JA (Streicher JA and Petse AJA concurring):

[1] The two appellants (Mahlangu and Rametsi) were convicted in the regional court, Johannesburg, of a contravention of s 1(1)(b) read with C s 3 of the Corruption Act 94 of 1992 (the Act).They were sentenced to six years' imprisonment, two years of which were suspended for a period of five years on condition that they were not convicted of corruption or extortion committed during the period of suspension. The magistrate refused leave to appeal. They petitioned the Judge President (South Gauteng High Court), where leave was granted. The court below D (Blieden J and Saldulker J concurring) dismissed the appeal against conviction and sentence. However, it granted leave to appeal to this court.

[2] When granting leave to appeal, the court below mentioned that E counsel for the appellants raised a point which was not argued during the appeal. The point related to whether the statutory provisions had been proved or not, and what the consequences thereof were. It also raised the possibility that the appellants may not have been properly represented at the trial, and that the presiding magistrate may have misdirected himself F in convicting them.

[3] The main grounds of appeal raised by the appellants are: (a) the State failed to prove the statutory requirements for the contravention of s 1(1)(b)(i) or (ii) of the Act; (b) the presiding magistrate entered the arena, thereby interfering with the proceedings to the prejudice of the appellants; (c) the legal representative of the first appellant was G confused, incompetent and ill-prepared, to the point of rendering the appellants' trial unfair; and (d) the presiding magistrate disregarded the cautionary rules applicable to a single witness and the evidence of a trap. Regarding sentence, it was contended that the trial court misdirected itself when dealing with the seriousness of the offence and related H mitigating factors.

[4] It is necessary to deal with the factual background. The State's case is that the complainant (Makhamba), a security guard, had shot and killed a suspected robber in self-defence and in defence of property, in 1998. The second appellant (Rametsi) was the investigating officer in I respect of this incident. The first appellant (Mahlangu), also a police officer, usually accompanied Rametsi during his investigation of this matter. In November 2000 Rametsi and Mahlangu visited Makhamba at his place of employment — seeking a statement regarding the shooting, which he gave. On this occasion the two police officers suggested that Makhamba should pay them a sum of R600 in order for them to J withdraw the case. They further threatened to arrest and lock him up if

Shongwe JA

he failed to pay them the money. He indicated that he did not have the A money, but that he would speak to his employer.

[5] Fearing arrest, Makhamba approached his employer and informed him about the appellants' proposition. The employer, in turn, reported the matter to the Anti-Corruption Unit and requested an investigation. Makhamba was again approached by the appellants, and also on one B occasion by Rametsi alone. On that occasion he paid R50 to Rametsi, being all he could afford.

[6] An arrangement was made for the police officers to visit again in January 2001. This arrangement was communicated to the Anti-Corruption C Unit, which then prepared to set up a trap in order to arrest Rametsi and Mahlangu. The Anti-Corruption Unit officers met with Makhamba days before the day of the trap. On the morning of 25 January 2001 Inspector Mothudi, of the Anti-Corruption Unit, arrived at Makhamba's place of employment (a factory), accompanied by other police officers, all in plain clothing. They handed R600, which D was made up of R100 notes, to Makhamba. The arrangement was that he would give the money to Rametsi and Mahlangu, and signal to them by taking his cap off after having handed the money over to the appellants. They would then close in and arrest them. Some of the Anti- Corruption Unit members were stationed inside and others outside the E factory premises. Rametsi and Mahlangu arrived. They were met by Makhamba and entered the factory premises. Mahlangu left them inside the factory premises and returned to the vehicle they had arrived in. He got into the vehicle and waited.

[7] On the factory premises Makhamba took out the money, counted it, F and tendered to hand it to Rametsi — who declined to take it and advised him to take it to Mahlangu, who was still inside the vehicle. Makhamba proceeded towards Mahlangu and handed the money to him. Makhamba then removed his cap — giving a sign to the Anti-Corruption Unit officers, confirming that he had handed the money over as discussed. Inspector Mothudi and other officers immediately G approached Mahlangu. Mothudi produced his appointment card to identify himself but, before he could arrest Mahlangu, Mahlangu sped off. Inspector Mothudi fired a shot at the vehicle's tyres, but missed. As...