S v Mosesi

• Jurisdiction: South Africa
• Judge: Jajbhay J and Berger AJ
• Judgment Date: 04 February 2009
• Citation: 2009 (2) SACR 31 (W)
• Docket Number: A 994/2004
• Hearing Date: 04 February 2009
• Counsel: Appellant in person. AL Loots for the State.
• Court: Witwatersrand Local Division

Jajbhay J:

[1] The appellant was charged on one count of extortion in the regional court held at Hillbrow on 26 November 2001. The appellant pleaded C not guilty to the charge and did not offer a plea explanation in terms of s 115 of the Criminal Procedure Act 51 of 1977. The appellant was convicted on a lesser charge of attempted extortion by the learned magistrate. He was sentenced to pay a fine of R10 000 or three years' imprisonment. The present appeal is in respect of the conviction.

D [2] The particulars of the charge against the appellant were set out as follows:

'That the accused is guilty of the crime of extortion.

In that upon or about the 10th day of March 2000 and at or near Johannesburg in the Regional Division of the Southern Transvaal, the E accused did unlawfully and intentionally inspire fear in the mind of John Kungwone by threatening not to register his wife as a director of a team named Mobosone Young Masters unless the said John Kungwone paid to him the sum of R1500 and did by means of such threat unlawfully and intentionally extort and obtain from the said John Kungwone the sum of R1000.'

F [3] At the commencement of the trial the State led the evidence of the complainant, Mr Kungwone. Immediately after the prosecutor had indicated that he did not have any further questions for this witness, the record indicates the following:

G 'Prosecutor: As the court pleases. The state has got no further questions.

Court:(Indistinct) give me the definition of the crime of extortion?

Prosecutor:Your worship, extortion it is whereby one instils a fear in the mind of another person that if you do not give me such, then the other person who is in power will not return the favour which H is intended.

Court:And what do you say is the definition of corruption?

Prosecutor:Corruption, your worship, it is where a person who is in power, it differs with extortion, can I just go . Corruption is where a person to whom power has been conferred, or who has been charged with any duty, by virtue of any employment, holding I of any office, or relationship of agency, or by law, wants money from a person to commit or omit to do any act in relationship to his powers or duty.

Court:I am just going to take a brief adjournment. I would like the defence to argue those as well. (Over to C2)

J Court adjourns. Court resumes.

Jajbhay J

Court:The evidence is this (indistinct) South African Criminal A Law & Procedure volume 2, I also have (indistinct) . . . a book by Verschoor. The definition of extortion in Hunt on page 693 is as follows:

"Extortion consists in taking from another some advantage by intentionally and unlawfully subjecting him to B pressure which induces him to submit to the taking.''

The essential elements are these:advantage, intention, pressure, unlawful subjection to pressure and inducement.

Prosecutor:That is correct, your worship.

Court:Good, on page 696, the following: C

''Pressure. There must be something in the nature of a threat, something which is intended to inspire fear and which does inspire fear. There is no (indistinct) . . . of the kind of threats which will suffice. The threat may be for example bodily harm, damage to property, arrest or prosecution, defamation, dismissal, civil proceedings or D inconvenience. The threat may be expressed or implied by words or conduct. It is submitted that the test is not objective.''

If there is no pressure, a crime may be fraud, corruption or something else, but not extortion. The difficulty the court has is E here: that there is no indication of any threat or pressure or anything of that kind.'

[4] The appellant argued...