S v Narker and Another

• Jurisdiction: South Africa
• Judge: Holmes JA, Muller JA and Corbett JA
• Judgment Date: 26 November 1974
• Citation: 1975 (1) SA 583 (A)
• Hearing Date: 19 November 1974
• Court: Appellate Division

Holmes, J.A.:

This is an appeal against sentence.

C In every appeal against sentence the question is whether it can be said that the trial Court exercised its judicial discretion improperly. When can this be said, bearing in mind that reasonable men may differ in the matter of sentence? In the absence of misdirection or irregularity, a test often applied is whether the sentence appears to the Court of Appeal to be disturbingly inappropriate.

D The first appellant is a Coloured woman, and the second appellant, a Coloured man, is her brother-in-law. Both are of the age of 29 years. They were charged before a regional magistrate in Cape Town with the crime of bribery. They pleaded guilty and were convicted. Each was sentenced to be imprisoned E for three years, of which one year was conditionally suspended. An appeal to the Cape Provincial Division against these sentences failed; but leave was granted to appeal to this Court.

At the time of the bribery the first appellant and her husband had been arrested by Detective Constable Steyn of the South African Police on a charge of possessing 30 bags of dagga for sale, with a weight content of a thousand pounds, in F contravention of sec. 2 (a) of Act 41 of 1971. (The second appellant, who is the brother of the first appellant's husband, was not implicated in that charge).

The gravamen of the case against the appellants was that in November 1972 they corruptly offered Detective Constable Steyn a gift of R20 000 and a motor car to induce him to give G evidence in the dagga trial in such a way that the accused therein (namely, the present first appellant and her husband) would be acquitted. As already mentioned, the appellants pleaded guilty to the charge of bribery; and, indeed, the evidence substantiated the State case and also established that the second appellant paid a deposit of

R5 000 to Steyn, who had already, with commendable integrity, reported the whole matter H to his superior officer.

At the dagga trial the first appellant was convicted and sentenced to imprisonment for ten years, of which four years were conditionally suspended. She said in evidence in the present case, in August 1973, that her sentence in the dagga case was under appeal. As to the sentence imposed on her husband in that case, she said in evidence that he was serving a seven-year sentence.

Holmes JA

In the main, it will be convenient to deal with the two appellants separately in this judgment, for it was argued that the subjective factors relating to them were different and that their degrees of participation and moral blameworthiness were A not the same. By way of prelude, however, certain principles may be indicated, as being common to both of them.

1.

Bribery is a corrupt and ugly offence striking cancerously at the roots of justice and integrity, and it is calculated to deprive society of a fair administration. In general, courts view it with abhorrence; see R. v Chorle, 1945 A. D. 487 at pp. B 496 - 7; and Limbada v Dwarika, 1957 (3) SA 60 (N).

2.

However, this denunciatively emotive description of the crime, although accurate, should not be allowed to transcend all other considerations in arriving at a just and balanced sentence. As was said by this Court C in S. v Kumalo, 1973 (3) S. A. 697 (A. D.) at p. 698A - B -

"Punishment should fit the criminal as well as the crime, be fair to society, and be blended with a measure of mercy according to the circumstances... The last of these four elements is sometimes overlooked."

(My italics).

D This does not mean that the Court arrives at a proper sentence and then reduces it somewhat for mercy's sake. Such a piecemeal approach would be erroneous. Mercy, depending on the circumstances, tempers one's approach to the factors to be considered in arriving at a proper sentence. It has particular relevance in letting the punishment fit the criminal.

3.

E The word "mercy" is here used in its meaning of compassion. There is no...