S v Van der Westhuizen

• Jurisdiction: South Africa

S v Van der Westhuizen
1974 (4) SA 61 (C)

1974 (4) SA p61

Citation	1974 (4) SA 61 (C)
Court	Cape Provincial Division
Judge	Baker J
Heard	May 22, 1974
Judgment	May 22, 1974

Flynote : Sleutelwoorde

Criminal law — Bribery — Law of stated — Acceptance of a reward by a public official — That State suffered no prejudice irrelevant to the existence of the crime but mitigatory in effect — Sentence — Factors which Court should take into consideration — Detailing of. B

Headnote : Kopnota

It is a crime for an official to accept money in return for doing his duty. It is immaterial that the solicited action is in the public interest: it is contrary to public interest to secure a public benefit by bribery.

The accused, a public official and duly appointed servant of the State in the employ of the South African Railways and C Harbours, had been charged with bribery in that he had exercised his general influence with the management of the Administration in favour of one B and others for which he had been rewarded. He pleaded guilty to the charge but submitted that his conduct had not prejudiced his employer.

Held, that prejudice was irrelevant to the existence of the crime of bribery.

Held, further, however, that the fact that the accused's conduct did not harm the State financially nor result in his suppressing information which should have gone to his superiors was mitigatory in effect.

D The law of bribery stated and the factors which the Court should take into consideration in imposing sentence on a public officer in the above circumstances detailed.

Case Information

Criminal trial on a charge of bribery. Facts not material to this report have been omitted.

J. H. Liebenberg, S.C. (with him A. M. Kruger ), for the State. E

A. Mendelow, Q.C. (with him C. W. Rosenthal ), for the accused.

Judgment

Baker, J.:

The accused in this case is charged with the crime of bribery, in that, during May 1970 to September 1973, and at F Cape Town and Johannesburg, he being a public officer and duly appointed as a servant of the State in the employ of the South African Railways and Harbours Administration, acting in concert and common purpose with Faros & Co. (Pty.) Ltd., Faros Shipping Enterprises (Pty.) Ltd., John Babaletakis, Nicholas Georgeu, Johannes Ludewikus Ceronie and Adriaan De Lange Swart, G unlawfully and corruptly received from the said Faros & Co. (Pty.) Ltd., and/or Faros Shipping Enterprises (Pty.) Ltd., and/or John Babaletakis and/or Nicholas Georgeu the amount of R21 750 or thereabouts, as gifts, rewards or consideration, as inducement to do or forbear to do acts, or for having done or forborne to do acts in the exercise of his official functions, to wit the undermentioned acts, namely:

Exercising his general influence with the management of the Administration in favour of Faros & Co. (Pty.) Ltd., Faros Shipping Enterprises (Pty.) Ltd., John Babaletakis and Nicholas Georgeu.

He pleaded guilty to the charge as set out above and this plea was accepted by the State, and consequently he was found guilty of the charge as I have set out.

1974 (4) SA p62

Baker J

The facts as admitted by counsel for the State and the accused are the following:

[The learned Judge set out the admitted facts and continued.]

The accused admitted in the statement, already mentioned, that A he was instrumental in opening the door to negotiations between Babaletakis and the senior officials of the Administration.

The State's case against him is that he exercised such influence as he had with his superiors in favour of Babaletakis and his company. In the result, the State charged the accused with only one count of bribery in that he received the amounts B stated in the indictment as a reward for having used what influence he had, with the management of the South African Railways and Harbours in favour of Babaletakis and his company. It is a general allegation, not a series of compartmented allegations of corruption.

The plea of guilty by the accused, therefore, amounts to this:

C That he admits to having accepted bribes totalling R21 750 as a reward for assisting Babaletakis -

(1)

by using such influence as he had with the Administration;

(2)

by taking part in a meeting which resulted in the hire of a ship on a long term basis;

(3)

D by passing on general information to Babaletakis of the shipping requirements of the Railway Administration; and

(4)

by advising Babaletakis to offer the Administration a second ship for the transport of coal.

Throughout, the accused insisted that his conduct had not prejudiced the South African Railways and Harbours, and, E indeed, the State did not submit otherwise. I return to this aspect later.

He also insisted that he had never suppressed information that should have been given to his superiors in order to advance the interest of Faros, and I did not understand Mr. Liebenberg, for the State, as contesting this. The accused further said that he F never thought he would be guilty of bribery by accepting money, provided he did nothing to favour Faros. I return to this later, also. He was obliged to concede in cross-examination that, by going to Faros alone for the second ship, and by not having gone to all brokers for this vessel, he had assisted Faros in getting a very substantial profit, his share being very considerable; but he says that his only G dereliction of duty here lay in not "testing the market".

Now, the law on bribery in so far as it is of interest here can be very shortly stated:

Bribery is a most serious crime. It is common cause here that the accused is guilty of a very serious crime - his own H counsel correctly...