S v Setlholo

• Jurisdiction: South Africa
• Citation: 2017 (1) SACR 544 (NCK)

S v Setlholo
2017 (1) SACR 544 (NCK)

2017 (1) SACR p544

Citation	2017 (1) SACR 544 (NCK)
Case No	CA & R 60/14
Court	Northern Cape Division, Kimberley
Judge	Tlaletsi J and Phatshoane J
Heard	December 13, 2016
Judgment	March 3, 2017
Counsel	CF van Heerden for the appellant.; CG Jansen for the state.

Flynote : Sleutelwoorde

E Corruption — Sentence — Police officer soliciting bribe from person who had been lured into fake illicit diamond transaction — Fact that perpetrator a police officer an aggravating factor — Sentence of 10 years' imprisonment confirmed on appeal.

Headnote : Kopnota

The appellant, a 23-year-old police officer, appealed against his sentence of 10 years' imprisonment imposed for corruption and fraud, his appeal against the convictions previously having been dismissed. The convictions came about as a result of his participation in a misrepresentation to a complainant who was the potential client in an illicit diamond sale. The appellant and his cohorts pretended to the complainant at the crucial moment that they were part of a police trap and that he would be arrested G and charged for the offence, but could avoid this by paying them R50 000. The appellant accompanied the complainant to an ATM where the latter drew R10 000. An arrangement was made that he would later pay a further R40 000 and be provided with the police docket. The complainant, however, approached the police and the appellant was arrested when he received the rest of the money. It was contended for the appellant that the H sentence of 10 years' imprisonment for a youthful offender such as him was excessive.

Held, that the appellant had been fortunate in that the trial magistrate had not taken into account the minimum-sentencing regime, which required a minimum sentence of 15 years' imprisonment if no substantial and compelling circumstances were found to exist, as there was no reference in I the charge-sheet to the applicability of that sentencing regime, nor was any mention made of it at the commencement of the trial. (Paragraph [13] at 550b–e.)

Held, further, that the fact that the appellant was a police offiicer was an aggravating factor as he was supposed to be vigilant and protect the community against crime. There could be no doubt that the corrupt and J fraudulent activities in the present case had been carefully planned.

2017 (1) SACR p545

The appellant had played a significant role in the execution of the bogus A police operation and had had ample opportunity to reconsider his actions. He was a gainfully employed public servant and there had been no need for him to engage in any fraudulent and corrupt activities. The sentence was furthermore not out of kilter with the sentence that the court itself would have imposed and there were accordingly no grounds for the court to interfere with the sentence on appeal. (Paragraphs [20]–[21] at 552d–f.) B The appeal was dismissed.

Annotations:

Cases cited

Reported cases

Director of Public Prosecutions v Mngoma 2010 (1) SACR 427 (SCA): dictum in para [11] applied

S v Tshoga 2017 (1) SACR 420 (SCA): dictum in para [22] applied C

S v Kasselman en 'n Ander 1995 (1) SACR 429 (T): distinguished

S v Kibido 1998 (2) SACR 213 (SCA): dictum at 216g – i applied

S v Klaasen 2015 JDR 0766 (ECG): compared D

S v Mahlangu and Another 2011 (2) SACR 164 (SCA) ([2011] ZASCA 64): compared

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220; [2001] ZASCA 30): dictum at 478d – g applied

S v Mogale 2010 JDR 1510 (GNP): compared

S v Mogotsi 1999 (1) SACR 604 (W): distinguished

S v Moswathupa 2012 (1) SACR 259 (SCA): referred to

S v Mtsi 1995 (2) SACR 206 (W): distinguished E

S v Newyear 1995 (1) SACR 626 (A): distinguished

S v Pennington and Another 1999 (2) SACR 329 (CC) (1997 (4) SA 1076; 1997 (10) BCLR 1413): considered

S v Rabie 1975 (4) SA 855 (A): referred to

S v Sadler 2000 (1) SACR 331 (SCA) ([2000] 2 All SA 121; [2000] ZASCA 13): referred to. F

Case Information

CF van Heerden for the appellant.

CG Jansen for the state.

An appeal from a sentenced imposed in a magistrates' court for fraud and corruption. G

Order

1.

The appeal is dismissed.

2.

The sentence is confirmed.

3.

The appellant must present himself to the clerk of the regional H court, Kimberley, within 48 hours from date of this order to arrange for him to serve his sentence.

Judgment

Phatshoane J (Tlaletsi J concurring):

[1] On 23 October 2013 the appellant was convicted on one count of corruption and one of fraud in the regional court, Kimberley, by Mr DJ Schneider. On 16 January 2014 he was sentenced to 10 years' imprisonment, three years of which were suspended for a period of five years on certain conditions. The two counts were taken together for purposes of the sentence. J

2017 (1) SACR p546

Phatshoane J

A [2] The appellant had approached this court to appeal his conviction and sentence with leave of the court a quo. On 19 June 2015 we handed down the judgment dismissing the appeal against his conviction. We did not entertain the appeal against the sentence for reasons captured as follows in para 43 of our judgment:

B 'The heads of argument filed by the parties included submissions on sentence. It would appear that this was done under the mistaken understanding that leave to appeal against the sentence had been granted. However, when the judgment of the court a quo on the application for leave to appeal was later made available to this court, at our request, it revealed that the appellant was refused leave to appeal C against his sentence. No attempt was made thereafter by the appellant to obtain leave to appeal against his sentence with the result that the appeal on the sentence is not before us.'

[3] On 11 July 2016 the appellant filed a petition with the Judge President of this division averring therein that the regional magistrate D had in fact granted leave to appeal against the sentence as well. He attached to his petition a letter from the magistrate dated 09 June 2016 which reads in part:

'5.

Die Staatsadvokaat, Adv Barnard en Adv Schreuder [for the appellant] het my op 'n stadium in kamers genader, en my van die situasie ingelig. Ek is versoek om indien moontlik, op 'n spoedeisende E basis die rede vir my beslissing te verkaf.

6.

Aangesien die hele oorkonde reeds by die Hoër Hof was, het ek my handgeskrewe hof-notas op die saak getrek, en daarvolgens my redes vir die toestaan van die aansoek om verlof tot appel ten opsigte van die meriete op skrif gestel. Ek het ewenees volgens die F inligting uit my handgeskrewe notas die afleiding gemaak dat ek die aansoek om verlof tot appel teen die vonnis afgewys het, en dit so op my redes aangedui. Ek is op 'n latere stadium deur Adv Schreuder ingelig dat daardie mening foutief was, en dat ek inderdaad die aansoek om verlof tot appel teen die vonnis toegestaan het. Die advokaat het 'n afskrif van die Streekhof saak-notule G (wat toe nie meer by die Landroshof beskikbaar was nie), aan my aangetoon wat daarop dui dat die aansoek t.o.v die vonnis inderdaad toegestaan was. Ek het hierna die appelregister nagegaan, en dit was inderdaad daar aangedui dat die aansoek om verlof tot appel ook ten opsigte van die vonnis toegestaan was.

7.

Ek wil dus graag hiermee die regstelling doen, en naamlik bevestig dat die aansoek om verlof tot appel ook teen die vonnis toegestaan H was.

8.

Ek wil graag my verskoning aanbied vir die bona fide fout wat ingesluip het.'

[4] On the basis of the aforesaid letter, we heard the arguments in respect I of the appeal against the sentence on 13 December 2016. It is apposite to mention that on 10 September 2015 Erasmus AJ made an order, by agreement...