S v Mofomme
Jurisdiction | South Africa |
Judge | SAM Bagwa J and P Phahlane AJ |
Judgment Date | 09 November 2017 |
Docket Number | A812/2016 |
Court | Gauteng Division, Pretoria |
Hearing Date | 09 November 2017 |
Citation | 2017 JDR 2041 (GP) |
Bagwa J:
The appellant herein was arraigned before the Regional Magistrate's Court, Pretoria North on two counts of corruption and fraud. Count 1 also had seven alternative charges of corruption in relation to acceptance of a benefit.
The appellant pleaded not guilty but was found guilty on both counts 1 and 2 on 31 October 2014.
He was sentenced to eight years imprisonment on count 1 and six years imprisonment on count 2. The sentences were ordered to run concurrently resulting in an effective sentence of eight years imprisonment.
2017 JDR 2041 p2
Bagwa J
The appellant petitioned this court for leave to appeal after leave was refused by the trial court. Leave was granted on petition for the appellant to appeal against sentence only and this is what brings the appellant before us today.
Point in Limine
The appellant and the respondent have made reference to the fact that the record of proceedings is incomplete but they are in agreement that the issue is of no consequence in this appeal due to the fact that the trial court gave a comprehensive judgment regarding the merits and that the trial record in respect of sentence is complete. In line with the decision, therefore, in S v Chabedi 2005 (1) SACR 415 (SCA) I accept that the defects in the record are not so serious that a proper consideration of the appeal is not possible. Accordingly nothing more needs to be said in this regard.
Background
The background facts to this appeal are briefly as follows. During December 2007, one Lieutenant Colonel Breedt (Breedt) received information while stationed at the Magistrate's Court, Pretoria North as a liaison officer that money was being offered to a person to arrange for an accused to be released on bail.
Breedt applied for authorisation to conduct an entrapment in terms of section 252A of the Criminal Procedure Act 51 of 1977. Subsequent thereto, she arranged for entrapment money in the sum of R300.00 which was handed over to one Ziya Patel. She further arranged for a Constable Labuschagne to keep watch over Ziya Patel.
Later, Lieutenant Colonel Breedt observed Ziya Patel, her brother and another witness coming out of the office of the appellant followed by the appellant. Ziya Patel reported that an amount of R400.00 had been handed over to the appellant. The appellant was searched but no money was found on him. Money was however discovered in the office of the appellant behind a steel cabinet. This in a nutshell is
2017 JDR 2041 p3
Bagwa J
the evidence that led to the appellant's conviction for corruption and fraud.
The appellant conceded in his testimony that he had been appointed on 3 December 2007 as a public officer and that in that capacity he was not permitted to receive any money for services rendered in his official capacity.
After his conviction no previous records were proven against the appellant.
The personal circumstances of the appellant were outlined as follows: He was 32 years old at the time of sentence and he had passed grade 12 at school. He had three children aged 14, 9 and 4 at the time and he was maintaining the eldest two children paying an amount of R700.00 per month. He was employed by the Department of Justice from 1 December 2004 and as already alluded to he was a first offender. He earned an income of R3 000.00 per month post deductions.
Comparative Case Law
The appellant makes reference to comparative case law including the case of S v Philips 2017 (1) SACR 373 (SCA) in which the appellant was a 35 year old constable who was a first offender, married with three children. He had received a sentence of 7 years of which 2 were suspended. On appeal his sentence was reduced to 4 years which was deemed an adequate deterrent to...
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