S v Phillips

• Jurisdiction: South Africa
• Citation: 2017 (1) SACR 373 (SCA)

S v Phillips
2017 (1) SACR 373 (SCA)

2017 (1) SACR p373

Citation	2017 (1) SACR 373 (SCA)
Case No	370/2016; [2016] ZASCA 187
Court	Supreme Court of Appeal
Judge	Leach JA, Tshiqi JA, Zondi JA, Schoeman AJA and Schippers AJA
Heard	November 11, 2016
Judgment	December 1, 2016
Counsel	AB Booysen for the appellant.; GC Nel for the state.

Flynote : Sleutelwoorde

Corruption — Sentence — Section 26(1)(a)(ii) of Prevention and Combating of B Corrupt Activities Act 12 of 2004 — Provision not limiting court's sentencing discretion by prescribing fine as first option.

Corruption — Sentence — Police officer demanding money from complainant C to avoid arrest on false charge — First offender with prospects of rehabilitation sentenced to four years' imprisonment.

Headnote : Kopnota

The appellant was a 35-year-old constable in the South African Police Service who had been convicted in a regional court of soliciting and accepting a D bribe in contravention of s 4(1)(a)(i)(aa) of the Prevention and Combating of Corrupt Activities Act 12 of 2004 (the Act). He was a first offender who was married with three children and had nine years' flawless service. The offence involved the manufacture of a charge of drinking in public against a university student whom he arrested but later released after soliciting a bribe of R900. He was sentenced to seven years' imprisonment of which two years were suspended. An appeal to the High Court against E the sentence was dismissed. In the present appeal it was contended that s 26(1)(a)(ii) of the Act limited the trial court's sentencing discretion by prescribing as a first option a fine, and, as a second, imprisonment, and the trial court ought therefore to have first considered imposing a fine rather than direct imprisonment.

The court rejected the appellant's contention and held that, having regard to the F legislative history, context and purpose of the Act, the legislature had not intended to restrict the sentencing discretion of the trial court but rather made it clear that public officers who were convicted of corruption could be dealt with harshly. Section 26(1)(a)(ii) clearly left it in the hands of the sentencing court to impose either a fine or a period of imprisonment. (Paragraph [11] at 377c–d.) G

2017 (1) SACR p374

As to a proper sentence, the court A held that the trial court had placed undue emphasis on deterrence and failed to give due consideration to the appellant having prospects of rehabilitation and becoming a useful member of society. In the circumstances an appropriate sentence would be one of four years' imprisonment, which would serve as an adequate deterrent to other police officers who might be tempted to supplement their income with corrupt activities. (Paragraphs [19]–[20] at 379b–e.)

Cases cited B

F v Minister of Safety and Security and Others 2013 (2) SACR 20 (CC) (2012 (1) SA 536; 2012 (3) BCLR 244; [2011] ZACC 37): referred to

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): dictum in C para [18] applied

S v Berliner 1967 (2) SA 193 (A): dictum at 200E – H applied

S v Mahlangu and Another 2011 (2) SACR 164 (SCA) ([2011] ZASCA 64): dictum in para [26] applied

S v Mogotsi 1999 (1) SACR 604 (W): referred to

S v Mtsi 1995 (2) SACR 206 (W): referred to

S v Narker and Another 1975 (1) SA 583 (A): considered D

S v Newyear 1995 (1) SACR 626 (A): referred to.

Legislation cited

The Prevention and Combating of Corrupt Activities Act 12 of 2004, s 26(1)(a)(ii): see Juta's Statutes of South Africa 2015/16 vol 1 at 2-651.

Case Information

AB Booysen for the appellant. E

GC Nel for the state.

An appeal from a decision in the Gauteng Division, Pretoria (Kubushi J and Masango AJ), dismissing an appeal against a sentence imposed in a F regional magistrates' court for corruption.

Order

The appeal against sentence succeeds. The sentence imposed by the trial court is set aside and substituted with the following:

'The accused is sentenced to four years' imprisonment, antedated to G 20 June 2012.'

Judgment

Zondi JA (Leach JA, Tshiqi JA, Schoeman AJA and Schippers AJA concurring):

H [1] The appellant, a constable in the South African Police Service, was convicted in the regional court, Pretoria, of soliciting and accepting a bribe of R900 in contravention of s 4(1)(a)(i)(aa) read with ss 1, 2, 4(2), 24, 25 and 26(1)(a) of the Prevention and Combating of Corrupt Activities Act 12 of 2004 (the Act). He was sentenced to seven years' I imprisonment, two years of which were conditionally suspended for five years. The appellant unsuccessfully appealed against this sentence to the Gauteng Division (Kubushi J and Masango AJ). This appeal against sentence only is with special leave of this court.

[2] On 16 July 2010 at about 01h00 near Hatfield Square, Pretoria, J the appellant arrested one John Carlisle (the complainant), a student at

2017 (1) SACR p375

Zondi JA

the University of Pretoria, for allegedly drinking in public. The A complainant was placed in the back of a police van and driven about 200 metres to the Brooklyn Police Station. There he was left locked in the back of the police van for a while before the appellant came to him and demanded payment of R2000 in cash which the appellant said was a fine the complainant had to pay in order to avoid going to jail. B

[3] The complainant informed the appellant that he did not have such an amount on him and said that he could raise only R1200. The appellant then took the complainant to the nearest ATM to withdraw cash, but the complainant was only able to withdraw R900 in cash. The appellant accepted the R900 from the complainant and released him. Thereafter C the appellant conveyed the complainant to his girlfriend's residence. Later that day the complainant, feeling aggrieved by the appellant's conduct, opened a case of bribery against the appellant at the Brooklyn...