13
REPUBLIC OF SOUTH AFRICA
IN THE REGIONAL COURT FOR THE REGIONAL DIVISION OF LIMPOPO HELD AT GIYANI (SCCC)
CASE NO. RW20/2020
In the matter between
THE STATE
Versus
BALDWIN NEVONDWE
JUDGMENT
1. INRODUCTION.
Mr BALDWIN NEVONDWE, an adult male person of 38 years of age (hereinafter referred to as the accused) is facing the following counts:
Count 1: The main count is Corruption, in contravention of section 4(1)(a) read with sections 1, 2, 4(2), 24, 25 and 26(1)(a) of the Prevention and Combating of Corrupt Activities Act 12 of 2004.
The alternative count is Corruption, in contravention of section 10(a) read with sections 1, 2, 4((2), 24, 25 and 26(1)(a) of the Prevention and Combating of Corrupt Activities Act 12 of 2004.
Count 2: The main count is Corruption, in contravention of section 4(1)(a) read with sections 1, 2, 4(2), 24, 25 and 26(1)(a) of the Prevention and Combating of Corrupt Activities Act 12 of 2004.
The first alternative count is Corruption, in contravention of section 10(a) read with sections 1, 2, 4(2), 24, 25 and 26 of the Prevention and Combating of Corrupt Activities Act 12 of 2004
The second alternative count is Theft.
In both counts the State alleges that the accused unlawfully accepted a gratification of amounts of money from the complainants, respectively, for his own benefit or any other person, in a manner that amounted to a violation of a legal duty or set of rules.
In the second alternative count to Count 1 the State alleges that the accused unlawfully and intentionally stole money belonging to or in possession of the complainant.
2. PLEA PROCEEDINGS
The accused pleaded not guilty to counts 1 and 2, main and alternative counts.
As a basis of his defence, he denied to have committed any of the alleged offences.
No admissions were made.
3. EVIDENTIAL MATERIAL
The following evidential materials were adduced in the trial:
3.1. The State adduced viva voce evidence of the following witnesses:
Mr Madala Thomas Rathogwa,
Warrant Officer, now Captain Rudzani Ephraim Makananise,
Mr Latisani Ben Mulaudzi,
Mrs Livhuwani Francinah Muthavhini,
Captain Malose Ledwaba, and
Captain Azwinndini Moses Makhavhu.
The State also adduced the following documentary evidence:
Exhibit “A”: A written statement made to the police by Mr Madala Thomas Rathogwa,
Exhibit “B”: Another statement by Mr Madala Thomas Rathogwa,
Exhibit ”C”: A statement by Mr Latisani Ben Mulaudzi,
Exhibit “D”: A certified copy of proceedings in Magistrate’s Court case number TL200/2016 ,
Exhibit ‘E’: A statement by Mrs Livhuwani Francinah Muthavhini,
Exhibit “F”: A certified copy of a R200-00 note,
Exhibit “G”: A statement by Captain Malose Ledwaba,
Exhibit “H”: A birth certificate of Mr Mutheiwana Alfred Tshiguvho,
Exhibit “I”: Statement by Mr Mutheiwana Alfred Tshiguvho,
Exhibit “J”: Application in terms of section 252A, Act 51 of 1977, as amended,
Exhibit “K”: Another application in terms of section 252A, Act 51 of 1977, as amended,
Exhibit “L”: Authorisation in terms of section 252A, Act 51 of 1977, as amended, by the Director of Public Prosecutions,
Exhibit “M”: Statement by Captain Rudzani Ephraim Makananise, and
Exhibit “N”: Copy of a progress report regarding an application in terms of section 252A, Act 51 of 1977, as amended.
After the State closed its case, the defence applied, in terms of section 174 of the Criminal Procedure Act 51 of 1977, for the discharge of the accused in all counts.
The State opposed the application.
I refused the application, having found that there was sufficient evidence against the accused that he committed the offences in the two counts.
3.2. The defence adduced oral evidence of the accused, Mr Hlengani Alvicent Makondo and Mr Mawela Ndou.
4. SUMMARY OF THE EVIDENTIAL MATERIAL
4.1. STATE CASE
The complainant in count 1, Mr Madala Thomas Rathogwa testified that the accused is known to him in connection with this case. He been unknown to him.
On 25 October 2016 he was at Tshitale Magistrate’s Office for court appearance after having been charged for insulting another person. The accused called him to the Public Prosecutor’s office, and therein told him that he had to pay an amount of R500-00 because the case was serious. He told the accused that he only had R300-00 at home. The accused told him to go home and collect the R300-00, and gave him his cell phone number so that he would call him on his return. On his way out of the premises, Mr Rathogwa came across police officer Masindi, the Investigation Officer in the case, who enquired how things transpired. Mr Rathogwa told him that he was told to pay an amount of R300-00.
Mr Rathogwa also testified that the accused told him to pay R500-00 so that the case would be cancelled. Police officer Masindi told him to come to his office in the morning of the following day.
Mr Rathogwa came across Mr Latisani Ben Mulaudzi, who was known to him, on the road on his way home. Mr Mulaudzi took him home in his motor vehicle.
Mr Rathogwa took R300-00 from his house, and telephonically informed the accused that he had the R300-00. The accused said they would meet at a bridge. Mr Rathogwa went to the bridge, where he met the accused. The bridge is approximately 500 metres from Tshitale Magistrate’s Office.
Mr Rathogwa gave the accused the R300-00, and thereafter left with Mr Mulaudzi. Mr Mulaudzi was in his vehicle when Mr Rathogwa gave the money to the accused. The accused did not give him proof that he gave him the R300-00. He did not request any proof because he was happy that the case had been disposed of. The accused told him to bring the balance of R200-00 the following day.
In the morning of the following day Mr Rathogwa went to police officer Masindi. The latter called other police officers, Captains Makananise and Ledwaba. Mr Rathogwa told police officer Masindi that he had given the accused an amount of R300-00 at the bridge. Captains Makananise and Ledwaba showed him an original R200-00 note.
On the day arranged, the accused telephonically called Mr Rathogwa and enquired about his whereabouts. Mr Rathogwa told the accused that he was at a fuel station at Mulima.
Captains Makananise and Ledwaba arrived and parked their vehicle near the fuel station. The accused arrived in a white State-owned Nissan vehicle, alighted and approached Mr Rathogwa. The accused was a passenger in the vehicle, driven by another person.
Mr Rathogwa gave the accused an amount of R200-00, and took off his hat. Captains Makananise and Ledwaba had told him to take off his hat after giving the accused the money. The two police officers approached the accused and talked to him. Mr Rathogwa left, and did not witness what later transpired there.
He further testified that he later learnt that his case had been cancelled. When
Mr Rathogwa was cross-examined by the defence, he said that the police obtained one statement from him. A trial-within-a trial was held to determine if more than one statement was obtained from him. The court ruled that it was established that two statements were obtained from him. As a result, the defence was permitted to cross-examine him on the contents of the two statements. Mr Rathogwa thereafter testified that he told the police officer who took his statement the reason for him to have given money to the accused.
He also testified that, when the police gave him R200-00, they did not tell him that the accused would be trapped. He realised on his own that a trap was being planned. He denied that he telephonically called the accused. It was the accused who called him.
Mr Latisani Ben Mulaudzi (count 1) testified that accused was known to him because the two of them stayed at neighbouring villages. The complainant in count 1 was also known to him. On 25 October 2016 he telephonically called the complainant, and they arranged to meet at Tshitale Magistrate’s Office. He drove his vehicle there, and met the complainant at the gate of the premises. The complainant told him that an amount of money was needed in court, as he had been told to pay a fine. The complainant then requested him to take him home in his vehicle, in order to take the money. Mr Mulaudzi drove his vehicle towards the direction of the complainant’s house. The complainant alighted at the bridge, and later came back from his house and found him in the vehicle. The complainant told him he was going to meet a certain male person to whom he would hand the money. Mr Mulaudzi thereafter saw the complainant meeting a male person. He saw the complainant handing over something to the male person. After the meeting, Mr Mulaudzi asked the complainant about the identity of the person to whom he had given money. The complainant said he had given the money to Mr Nevondwe. Mr Mulaudzi also testified that when he saw the complainant walking towards the male person, who he said was the accused, the complainant was holding money in his hand. When the complainant walked back to him, he was no longer holding the money. There was no obstruction between him, the accused and the complainant. He was at a distance of approximately 12 to 15 metres from the accused and the complainant.
Mrs Livhuwani Francinah Muthavhini (count 2) testified that her late brother, Mr Mutheiwana Alfred Tshiguvho, was arrested by the police for an alleged criminal offence on 24 October 2016. She accompanied him to Tshitale Magistrate’s Office, the following day, 25 October 2016. They entered the Public Prosecutor’s office. The Public Prosecutor was Mr Makondo, who enquired how much money they had. She told him she had R800-00 in her possession. Mr Makondo enquired if she had R1000-00, and she said she did not. He said he would not talk to her any further as she did not have enough money, and would call another person to attend to them. He then called out the name Nevondwe. Mr Nevondwe, the accused, entered Mr Makondo’s office. Mr Makondo told the accused that Mrs Muthavhini and her late brother were there to make a payment regarding a criminal case, and that the accused should arrange the payment. The accused told the late brother that the criminal charge was serious, and that he could be imprisoned for a long time. The three of them were in another office at that stage. The accused enquired how much money Mrs Muthavhini had in her possession, and she said she had R800-00. The accused said he would take R600-00 for “cold drink”, and that they should not disclose anything to anyone. Mrs Muthavhini then put R800-00 on a table. The accused took R600-00, put R200-00 on top of the police docket, and R600-00 in his jacket pocket. The accused then took them to the office of the Clerk of the Court, Mr Ndou. Mrs Muthavhini handed the police docket and the R200-00 to Mr Ndou. The accused had earlier given her the police docket. Mr Makondo, the Public Prosecutor, came and told the accused he was needed in court. Mr Makondo took the police docket, and said Mrs Muthavhini should make the payment in the cash hall. Mrs Muthavhini went to the cash hall and paid the amount of R200-00, and was issued with a receipt. After they left the office, her late brother said they had been swindled, in that they only paid R200-00, and the accused took R600-00. Later, her late brother made a report about what transpired to police officer Masindi. Police officer Masindi advised them to lay a charge.
Mrs Muthavhini also testified that the accused had been unknown to her before she met him at Tshitale Magistrate’s Office.
Captain Malose Ledwaba testified that he was stationed at the Directorate of Priority Crimes Investigation unit (DCPI), SAPS, Polokwane, with 30 years’ service in the SAPS. He was on duty on 27 October 2016 when the complainant in count 1 telephonically told him that he had a complaint regarding a Public Prosecutor who demanded R500-00 from him, so that his case would be cancelled. The complainant in count 1 also told him that he had paid an amount of money to the Public Prosecutor, Mr Nevondwe, and that a balance was R200-00 was outstanding. Captain Ledwaba requested his police colleague, Captain Makananise, who was with him, to communicate further with Mr Rathogwa as there were some language barriers. Captain Makananise and Mr Rathogwa were Tshivenda speaking, and Captain Ledwaba was Sepedi speaking.
After receiving the complaint from Mr Rathogwa, Captain Ledwaba decided to open an enquiry docket. He applied for authorisation to make use of a trap or undercover operation in terms of the provisions of section 252A of the Criminal Procedure Act 51 of 1977, as amended. He gave Captain Makananise an amount of R200-00, and requested him to make a copy thereof. A copy of the original R200-00 note was certified as a true copy of the original. They then travelled to the Tshitale area. Captain Ledwaba further testified that Captain Makananise made the first section 252A, Act 51 of 1977, as amended application, and because of some errors made the second one.
They met the complainant in count 1 at Tshitale, where Captain Makananise searched him, and did not find any money in his possession. They parked their vehicle at a certain spot, and told Mr Rathogwa that he should take off his hat after the suspect demanded money and he had handed that to him.
Captain Ledwaba then saw a white Nissan Hardbody double cab vehicle coming to a halt. A male person alighted from the vehicle, clad in a black trouser and a white shirt. The vehicle drove away. The passenger who alighted, the accused, was communicating on his cell phone. Captain Ledwaba kept watch of Mr Rathogwa and the accused, and saw the former taking off his hat. He approached the accused and greeted him, introducing himself as a police officer. Captain Makananise approached them. Captain Ledwaba searched the accused, and found an amount of R200-00 in his pocket. He compared the original R200-00 note against the copy in his possession, and found that they matched. The accused said he was not a Prosecutor, but an Interpreter at Tshitale Magistrate’s Office. Captain Ledwaba enquired what the R200-00 he found in the accused’s pocket was meant for, and the accused did not offer a satisfactory response. He informed the accused he was placing him under arrest for corruption, and read his constitutional rights to him.
Captain Ledwaba also testified that the original R200-00 note was later used in another police operation, as police are allowed to use the same money in several operations, in case of emergency operations. Under cross-examination by the defence, he said that he did not find an amount of R36-00, but R200-00 in possession of the accused. The accused had been unknown to him. He asked the accused if he was the Prosecutor, and the accused said he was not, and that the person he was looking for was Mr Makondo. He also testified that the authorisation to set up a trap or undercover operation from the office of the Director of Public Prosecutions required that they should submit progress reports. He denied that he told the accused that if he did not say anything about Mr Makondo, he would die for things he did not know. Mr Makondo was unknown to him.
The State intended to adduce hearsay evidence. The hearsay evidence was admitted in terms of the provisions of section 3(1)(a) of the Law of Evidence Amendment Act 45 of 1988, in that the defence agreed to the admission thereof. The hearsay evidence pertains to a written statement obtained by the police from the late Mr Mutheiwana Alfred Tshiguvho by Captain Azwinndini Moses Makhavhu.
Captain Rudzani Ephraim Makananise (count 1) testified that he is stationed at the Directorate of Priority Crimes Investigation (DPCI) unit, Thohoyandou, SAPS with 17 years’ experience. In 2016 he was stationed in Plolokwane. The accused has been known to him since his arrest. He was the investigation officer of the case. On 26 October 2016 he was with his colleague, Captain Ledwaba when they received information that a person demanded money from another person. Captain Makananise telephonically communicated with the complainant in count 1, Mr Madala Thomas Rathogwa, who told him that an official at Tshitale Magistrate’s Office demanded money from him. Mr Rathogwa also told him that he gave the official part of the money and there was a balance outstanding. Captains Makananise and Ledwaba decided to set up a trap or undercover operation. Authorisation was applied for and obtained from the Director of Public Prosecutions in terms of the provisions of section 252A, Act 51 of 1977, as amended. They later met the complainant in count 1 at Tshitale. Captain Makananise searched him, and did not find any amount of money in his possession. He gave him R200-00, and told him to take off his hat immediately after having given the target the money. Captain Makananise parked his vehicle, and kept watching and monitoring at some distance from where the complainant in count 1 was standing. He then saw a white Nissan Hardbody vehicle emerging. The vehicle stopped, and the accused alighted. The vehicle drove away. The accused and Mr Rathogwa stood next to each other, talking. Captain Makananise then saw Mr Rathogwa taking out money and handing that to the accused. Mr Rathogwa took off his hat. Captains Makananise and Ledwaba approached the accused. Captain Ledwaba searched the accused, and took R200-00 from his trouser pocket. Captain Ledwaba compared the R200-00 note found in the accused’s pocket against a copy thereof. Captain Ledwaba then placed the accused under arrest, and informed him about his constitutional rights.
Captain Makananise further testified that he compiled progress reports of the operation and handed them to the police coordinator, Captain Mahlatsi, for them to be forwarded to the Director of Public Prosecutions.
Before cross-examining Captain Makananise, the defence challenged the admissibility of the evidence obtained as a result of the trap or undercover operation. The grounds furnished by the defence were, firstly, that in the setting of the trap or undercover operation the conduct went beyond providing an opportunity to commit an offence, and secondly, that Captain Makananise informed the agent, Mr Madala Thomas Rathogwa, to meet with the target, the accused, thirdly, that Captain Makananise failed to submit a progress report to the Director of Public Prosecutions as required, fourthly, that the two applications for authorisation differed materially, and fifthly, that Captains Ledwaba and Makananise were not in possession of the original R200-00 note when they testified in this trial.
The court held a trial-within-a trial in accordance with the provisions of section 252A (6) of Act 51 of 1977, as amended, in order to adjudicate, as a separate issue in dispute, whether the evidence obtained should be excluded in terms of section 252A (3).
In the trial-within-a trial, Captains Makananise and Ledwaba, Mr Madala Thomas Rathogwa and the accused testified. After the parties’ respective cases in the trial-within- a trial were closed, they addressed the court on the merits. I ruled that the conduct in the setting of the trap or undercover operation did not go beyond providing an opportunity to commit an offence. Reasons for the ruling were given. In the result, the evidence obtained as a result of the trap or undercover operation in terms of section 252A Act 51 of 1977, as amended, was admitted.
Thereafter, Captain Makananise was cross-examined by the defence. He further testified that the progress report, which he wrote on 27 October 2016, has been kept in the coordinator’s office. The authorisation of the trap or undercover operation was for the period 26 October 2016 to 10 November 2016. He also testified that one side of the copy of the R220-00 note was certified as a true copy of the original, and the reverse side was not, because it did not have a serial number thereon.
Captain Makananise further testified that he commissioned Mr Rathogwa’s and Captain Ledwaba’s respective statements, as he was not aware, as contended by the defence, that according to Sub-Regulation 7(1) of the Regulations Governing the Administering of An Oath or Affirmation, promulgated under the Justices of the Peace and Commissioners of Oaths Act, 16 of 1963, a Commissioner of Oaths may not administer an oath or affirmation relating to a mater in which he or she has an interest.
After the close of the State case, the defence applied for the discharge of the accused in both counts, main and alternative counts, in terms of section 174, Act 51 of 1977. The State opposed the application. Th court refused the application, having found that there was evidence on which a reasonable person might convict the accused on both counts.
4.2. DEFENCE CASE
The accused testified that he did not meet, see nor talk to Mr Madala Thomas Rathogwa, the complainant in count 1, on 26 October 2016, and that he met him for the first time at Tshitale Magistrate’s Court on 27 October 2016. On the day(27 October 2016, he was with Mr Alvicent Makondo, the Public Prosecutor at Tshitale Magistrate’s Court. They travelled to Giyani together in a motor vehicle driven by Mr Makondo. Mr Makondo was going to see the late Mr Mukhari, then Cluster Manager, Language Services. On their way back, the accused received a cell phone call from an unknown person, who enquired if he was employed at Tshitale Magistrate’s Office. The accused replied that he was employed there. The caller requested to see him, and the accused agreed, as he did not have a problem in meeting that person. Later, the person called again, using a different cell phone number, and enquired where the accused was. The accused enquired why he used two different cell phone numbers to call him, and he replied that both numbers were his. The accused told him he should not be concerned, and that he would call him when he reached the Tshitale area. The caller called him for the third time, and enquired where the accused was. The accused told him he was still on the way, and would call him later. The accused alighted from Mr Makondo’s vehicle at Tshitale, next to a tavern, and telephonically called Mr Custer Ramathuthu, and requested him to bring his laptop. While waiting for Mr Custer Ramathuthu, the accused telephonically the person who had earlier called him thrice, and enquired where he was. The person said they should meet next to Mulima Royal Fuel Station. The accused then walked towards Mulima Fuel Station. As he did not know the attire of the person he was going to meet, he enquired about that from him. The other person described his attire to the accused. Vhasa, a taxi driver, emerged and invited the accused to board his taxi. The accused turned down the offer, and said he was waiting for someone else. He eventually met the male person at the entrance of Mulima Royal Fuel Station. The accused and the other person greeted each other. A sedan motor vehicle emerged in a hurry, and a male person alighted therefrom. The said male person approached the accused and grabbed him, informing him that he was arresting him for corruption. The man introduced himself as Captain Ledwaba from the Hawks. Another male person approached the accused, and said he was Captain Makananise. Captain Ledwaba handcuffed and searched the accused, and found an amount of R36-00 in his bag. Captain Ledwaba enquired if he was Mr Makondo, the Prosecutor, and the accused said he was not Mr Makondo, but Mr Nevondwe, an Interpreter. Captain Makananise took out a copy of a R200-00 note, saying that it was a copy of the original R200-00 note found in possession of the accused. The accused denied that a R200-00 note was found in his possession. When he was being conveyed to Tshitale Police Station, Captains Ledwaba and Makananise told him that he should tell them everything about Mr Makondo, the Prosecutor. He told them that all he knew was that Mr Makondo was his work colleague, and nothing else. When they were at Tshitale Police Station, he was taken to police officer Masindi’s office, where the original R200-00 note and a copy thereof were placed in an exhibit bag, and was told the serial numbers matched. Captains Ledwaba and Makananise then took him to Botlokwa Police Station. On the way, Captain Makananise told him that if he did not say anything about Mr Makondo, he would die for something he did not know.
The accused also testified that his constitutional rights were not explained to him. He denied that he received any amount of money from Mr Rathogwa, the complainant in count 1. He also denied that he demanded any amount of money from any person. His cell phone was accessible to members of the community where he stayed, as he used to do errands for them.
Regarding count 2, the accused testified that the late Mr Mutheiwana Alfred Tshiguvho was unknown to him. On 25 October 2016 he met the late Mr Tshiguvho and his sister, Mrs Muthavhini at Tshitale Magistrat’s Office, where the Magistrate requested him to go and call Mr Makondo, the Prosecutor. The accused found Mr Makondo, Mrs Mutheiwana and her late brother in his office. Mr Makondo requested him to take them to Mr Ndou’s office, for payment of admission of guilt fine. Mr Ndou was the Clerk of the Court. The accused took them to Mr Ndou’s office, and the latter told him Mr Makondo did not write the amount of the admission of guilt fine in the police docket. The accused then went back to Mr Makondo’s office, where the latter told him he was needed in court. The accused left Mrs Muthavhini and her late brother in Mr Ndou’s office, and went to court. He also testified that on the day he met him, Mr Rathogwa took off his hat when they greeted each other.
The second defence witness, Mr Hlengani Alvicent Makondo, testified that he is the Control Public Prosecutor at Tshitale Magistrate’s Office. On 27 October 2016 he travelled, in a vehicle, to Giyani Magistrate’s Office with the accused. He went there to see the Senior Public Prosecutor. They also travelled together back to Tshitale. On their way back, the accused communicated over the cell phone. Because the motor vehicle radio was on, he did not hear what was being talked about. The accused alighted next to Denga’s tavern at Tshitale, and said another person would take him home in his vehicle.
Regarding count 2, Mr Makondo testified that what he remembered was that an admission of guilt fine of R200-00 was paid, after he fixed it. He handed the charge sheet to the accused. The accused in that matter, his sister and the accused in the instant case then walked out of his office towards the office of the Clerk of the Court. He learnt that the R200-00 admission of guilt fine was paid.
The third defence witness, Mr Mawela Ndou, testified that he is the Clerk of the Criminal Court at Tshitale Magistrate’s Office. Regarding count 2, he attended to the matter involving an accused person and his sister who came to his office with the accused in the instant case. The accused in the instant case was in possession of the charge sheet. As the amount of the admission of guilt fine was not written on the charge sheet, Mr Ndou referred them back to the Public Prosecutor. Thereafter the charge sheet was brought back to him, with the amount R200-00 written thereon, and he took it to the cash hall for payment. He also took Mrs Muthavhini and her late brother to the cash hall.
After the defence closed its case, the proceedings were postponed for the parties to prepare heads of argument. The heads of argument were filed in due course. The court expresses its gratitude in this regard. The State argued for the conviction of the accused on both counts, and the defence argued for an acquittal.
5. ISSUES NOT IN DISPUTE (COMMON CAUSE FACTS)
The following issues are common cause between the parties:
5.1. That the accused, as in October 2016, was employed by the Department of Justice as an Interpreter at Tshitale Magistrate’s Office.
5.2. That on 27 October 2016 the accused and Mr Madala Thomas Rathogwa, the complainant in count 1, engaged in telephonic conversations.
5.3. That on 27 October 2016 the accused and Mr Madala Thomas Rathogwa, the complainant in count 1, met next to Mulima Royal Fuel Station, Tshitale, in the Regional Division pf Limpopo.
5.4. That on 27 October 2016 Captains Malose Ledwaba and Rudzani Ephraim Makananise approached the accused and arrested him next to Mulima Royal Fuel Station, after having set up a trap or undercover operation in terms of section 252A, Act 51 of 1977, as amended.
5.5. That on 27 October 2016 Captain Ledwaba searched the accused and found an amount of money in his possession.
5.6. That on 25/10/2016 the accused was in the Prosecutor’s office with Mrs Livhuwani Francina Muthavhini and her late brother Mr Mutheiwana Alfred Tshiguvho.
5.7. That Mrs Livhuwani Francina Muthavhini paid an admission of guilt fine in the amount of R200-00, on behalf of her late brother.
5.8. That the late Mr Mutheiwana Alfred Tshiguvho had been facing a criminal charge at Tshitale Magistrate’s Court, and
5.9. That the accused was a public officer in the employ of a State department, the Department of Justice.
6. FACTS IN DISPUTE
It is in dispute between the State and the defence that:
6.1. The accused demanded any amount of money from Mr Madala Thomas Rathogwa, the complainant in count 1,
6.2. The accused received any amount of money from Mr Madala Thomas Rathogwa,
6.3. Captain Malose Ledwaba retrieved an amount of R200-00 from the accused’s pocket,
6.4. The accused demanded an amount of money from Mrs Livhuwani Francina Muthavhini and her late brother,
6.5. The accused received an amount of money from Mrs Livhuwani Francina Muthavhini and her late brother for his personal use.
7. THE BURDEN OF PROOF
It is trite that in a criminal trial the State bears the onus to prove the guilt of the accused beyond reasonable doubt. There is no obligation on the accused to convince the court of the truthfulness of any explanation which he/she may tender. If his/her version is reasonably possibly true, he/she is entitled to be acquitted even if his/her explanation may be improbable (see S v V 2000(1) SACR 453 (SCA) at 455 A-B). The State’s version in the instant case is evaluated against this salutary test. The legal question for determination is whether the State has proved the guilt of the accused beyond reasonable doubt.
In S v Van der Meyden 1999 (1) SACR 453 (SCA) Nugent J indicated that the evidence must establish the guilt of the accused beyond reasonable doubt, which will be so only if there is at the same time no reasonable possibility that an innocent explanation which has been put forward might be true.
In R v Mlambo 1957 (4) SA 727 (A), the Supreme Court of Appeal, then known as the Appellate Division, per Malan JA stated as follows (at 738 A-B): “There is no obligation upon the Crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary man, after mature consideration, comes to the conclusion that there exists no doubt that an accused has committed the crime charged. He must, in other words, be morally certain of the guilt of the accused. An accused’s claim to the benefit of doubt, when it may be said to exist, must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences, which are not in conflict with or outweighed by the proved facts of the case”.
In S v M 2006 (1) SACR 135 (SCA) Para. 189 the Supreme Court of Appeal said that: “the point is that the totality of the evidence must be measured, not in isolation, but by assessing properly whether in the light of inherent strengths, weaknesses, probabilities and improbabilities on both sides the balance weighs so heavily in favour of the State that any reasonable doubt about the accused’s guilt is excluded”.
In Shackell v S (2001) 4 ALL SA 279 the Supreme Court of Appeal indicated that a court does not have to be convinced that every detail of an accused’s version is true, and that if the accused’s version is reasonably possibly true in substance the court must decide the matter on the acceptance of that version.
In S v Ntsele 1998 (2) SACR 178 (SCA) it was stated that proof beyond reasonable doubt does not mean beyond a shadow of doubt, and if there is only a remote possibility in the accused’s favour which can be dismissed with the sentence “of course it is possible, but not in the least possible”, the case is proved beyond reasonable doubt.
8. EVALUATION OF THE EVIDENCE
The evidence of the witnesses in the two counts will be evaluated in turns.
In S v Chabalala 2003 (1) SACR 134 (SCA), para. 15 the following was stated, ‘The correct approach is to weigh all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities on both sides, and having done so to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused’s guilt”.
Regarding what happened in the office between the complainant in the first count, Mr Madala Thomas Rathogwa and the accused, the complainant is a single witness. Section 208 of the Criminal Procedure Act 51 of 1977 provides that an accused may be convicted of any offence on the single evidence of a competent witness, but it is a well-established judicial principle that the evidence of a single witness must be approached with caution, and it has to be clear and satisfactory in every material aspect.
The Supreme Court of Appeal, then known as the Appellate Division, in S v Sauls and Others 1981 (3) SA 172 A at 180 E-G indicated that caution must not be allowed to displace the exercise of common sense. The same sentiment was expressed in S v Artman 1968 (3) SA 339 (A) at 341 B-C. In S v Janse Van Rensburg 2009 (2) SACR 216 (C) it was said that the evidence of a single witness must not only be credible, but must also be reliable.
Corroboration of the evidence of a single witness is one of the safeguards to remove the danger of a miscarriage of justice. For the purpose of the cautionary rule, corroboration means evidence independent of the single witness himself or herself which confirms his or her evidence in a material respect implicating the accused (S V Hlapezula and Others 1965 (4) SA 439 (A) at 440).
In the present case, the complainant in the first count, Mr Madala Thomas Rathogwa, says that the accused had been unknown to him before he met him at Tshitale Magistrate’s Office. Mr Rathogwa testified that the accused solicited an amount of R500-00 from him so that the criminal charge against him would be cancelled. He went home and collected an amount of R300-00 and handed that to the accused next to a bridge. Thereafter the accused told him to bring the balance of R200-00 the following day. The following day Mr Rathogwa handed over the R200-00 to the accused, after a trap or undercover operation had been set by the police.
Mr Rathogwa did not show any bias or prejudice towards the accused. There are no material contradictions or inconsistencies in his evidence. That his written statements made to the police, Exhibits “A” and “B” do not include everything that transpired does not, on its own, result in him being an untruthful witness. The Supreme Court of Appeal in S v Mafaladiso en Ander 2003 (1) SACR 583 (SCA) stated that the final task of a court is to weigh up the previous statement of a witness against oral evidence to consider all the evidence and to decide whether it was reliable or not. In S v Bruiners en Ander 1998 (2) SACR 432 (E) it was stated that the purpose of a police statement is to obtain details of an alleged offence so that a decision can be made whether to institute a prosecution or not, and the statement of a witness is not intended to be a precursor to that witness’ evidence in court. It was therein also stated that the statement is usually a summary of what a police officer was told by the witness and is expressed in a language or in terms usually used by the police officer and not necessarily by the witness. It was also indicated in Mafaladiso en Ander that the fact that discrepancies occur between a witness’ evidence and the contents of that witness’ police statement is not unusual nor surprising. In S v Govender and Others 2006 (1) SACR 322 (E) it was pointed out that it should always be borne in mind that police statements are, as a matter of common experience, frequently not taken with the degree of accuracy and completeness which is desirable. In S v Mkohle 1990 (1) SACR 95 (A) at 98 F-G it was stated that contradictions per se do not lead to the total rejection of a witness’ testimony, and that it may simply be indicative of an error. In S v Webber 1971 (3) SA 754 (A) it was said that the court weighs the evidence of a witness, considers its merits and demerits, and having done so, will decide whether it is trustworthy, and whether, despite the fact that there are shortcomings, defects or contradictions in the testimony, it is satisfied that the truth has been told.
In the instant matter, Mr Rathogwa’s version that he met the accused next to a bridge was corroborated by Mr Latisani Ben Mulaudzi. Mr Mulaudzi testified that Mr Rathogwa requested him to take him home in his motor vehicle, for him to take money that was required at Tshitale Magistrate’s Office. He took him home, and later took him to the bridge. At the bridge, he saw the accused extending his arm towards Mr Rathogwa. Later, Mr Rathogwa told him that he had given money to the accused. Mr Mulaudzi was not forthright in his evidence pertaining to his prior knowledge of the accused, but this on its own does not lead to the total rejection of his evidence.
I also do not find material contradictions in the evidence of Captains Ledwaba and Makananise. The accused had been unknown to them prior the day of the trap or undercover operation regarding the first count. They did not show any bias or prejudice towards the accused. The shortcomings in their written statements do not, on their own, result in them being untruthful. Nothing much turns on the fact that the original R200-00 note was used in another operation, and was not made available in this trial. They testified that in emergency operations the same money may be used.
Mr Madala Thomas Rathogwa, Mr Latisani Ben Mulaudzi and Captains Ledwaba and Makananise are found to be to be honest and credible witnesses.
Turning to the defence version, the Supreme Court of Appeal in S v Shackell 2001 (2) SACR 185 (SCA) stated that an accused’s version cannot be rejected merely because it is improbable, and that it can only be rejected on the basis of inherent probabilities if it can be said to be so improbable that it cannot reasonably possibly be true. In the instant matter, the defence version in the first count is that the accused denies that he told the complainant, Mr Madala Thomas Rathogwa that he should give him an amount of R500-00 in order to get rid of the criminal charge against him. The accused admitted that he communicated on several occasions on the cell phone with the complainant, who had been unknown to him. On his own version, the accused did not enquire why the caller, Mr Rathogwa, kept on calling him while he was in the vehicle oh his way from Giyani Magistrate’ s Office. According to the accused, Mr Rathogwa used two different cell phone numbers in calling him. He agreed to meet the unknown caller, although he did not know what the meeting was about. It is it improbable that the accused, a court interpreter at that stage, would agree to meet an unknown person, without knowing the purpose of the meeting. As a court official, the accused would be reluctant to meet an unknown person, who is said to have used two different cell phone numbers to call him.
On the accused’s version, was he not concerned that the unknown caller would meet him and probably discuss a matter related to his office or court?
The evidence of the two other defence witnesses, Mr Hlengani Alvicent Makondo and Mr Mawela Ndou does not take the defence case any further. Their evidence does not deal with the aspect whether they witnessed any transaction between the complainants and the accused or not.
As regards the second count, the court does not find any contradictions nor inconsistencies in the evidence of Mrs Livhuwani Francina Muthavhini. Her late brother’s written statement was admitted as hearsay evidence in terms of the provisions of section 3(1)(a) of the Law of Evidence Amendment Act 45 of 1988. In the statement, admitted as Exhibit “I,” the late Mr Mutheiwana Alfred Tshiguvho stated that in an office, a person that he said was a prosecutor enquired if he admitted the charge, and he said he did. That person also enquired if he had an amount of R1000-00 to pay for the case, and he replied that he only had R800-00. In the near-by office, another person took the R800-00, of which he put R600-00 in his pocket and handed back R200-00 for payment of admission of guilt fine. The person said the R600-00 was for buying cold drink.
Mrs Muthavhini was forthright and coherent when she testified, and is found to be a honest and credible witness.
Regarding the defence version, the accused says he was sent by the Magistrate to go and call the Prosecutor, Mr Hlengani Alvicent Makondo. He went to Mr Makondo’s office, and therein found Mrs Livhuwani Francina Muthavhini and her late brother. Mr Makondo requested him to hm to take them to Mr Ndou’s office for payment of admission of guilt fine. He left them in Mr Ndou’s office and went to court.
As regards how the complainant in count 1 came to know the accused’s cell phone number, the accused’s version is that he, the accused, used to do errands for members of the community, and he did not have any issue in sharing his cell phone number with anyone. He also says that many people used to call him on his cell phone. The accused’s version in this regard is improbable that it cannot reasonably possibly be true.
9. FACTUAL FINDINGS
The following factual findings are made:
Regarding the first count:
9.1. The State witnesses are truthful and credible.
9.2. There are no material contradictions nor inconsistencies in the State case.
9.3. The defence version is improbable that it cannot reasonably possibly be true.
9.4. It as been established that the accused gave the complainant his cell phone number when they arranged to meet.
9.5. It has been established that the accused demanded an amount of R500-00 from the complainant.
9.6. It has been established that the complainant gave the accused money on two occasions, totalling R500-00.
9.7. The evidence established that the police found an amount of R200-00 in the accused’s pocket, and it matched with a copy thereof.
Regarding the second count:
9.8. The State witnesses are truthful and credible.
9.9. The defence version is improbable that it cannot reasonably possibly be true.
9.10. It has been established that the accused took and placed in his pocket an amount of R600-00.
9.11. It has been established that an amount of R200-00 was paid as admission of guilt fine.
10. THE LAW APPLICABLE
The offence of Corruption relating to public officers in contravention of section 4 (1) (a) of the Prevention and Combating of Corrupt Activities Act 12 of 2004 consists in the direct or indirect accepting or agreeing or offering to accept any gratification from another person, whether for the benefit of himself or herself or for the benefit of another person, in order to act, personally or by influencing another person so to act, in a manner that amounts to the illegal, dishonest, unauthorised, incomplete, biased or … the exercise , carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation, that amounts to the abuse of a position of trust.
11. VERDICT
The version of the State in counts 1 and 2 is accepted, and that of the defence rejected as improbable and false beyond reasonable doubt.
There is overwhelming evidence against the accused. The guilt of the accused has been proved beyond reasonable doubt. All the prerequisites of the offence of Corruption in contravention of section 4 (1) (a) of the Prevention and Combating of Corrupt Activities Act 12 of 2004 are present.
The State proved beyond reasonable doubt that the accused received gratification in the form of sums of money from the respective complainants for his own benefit in order to act in a manner that amounted to the illegal, dishonest, or unauthorised exercise, carrying out performance of his powers, duties or functions that amounted to the violation of a legal duty or a set of rules.
In the result,
The accused, Mr Baldwin Nevondwe, is found guilty as follows:
Count 1: Guilty of the main count of Corruption, in contravention of section 4 (1) (a) read with sections 1, 2, 4 (2), 24, 25, 26 (1) (a) of the Prevention and Combating of Corrupt Activities Act 12 of 2004.
Count 2: Guilty of the main count of Corruption, in contravention of section 4 (1) (a) read with sections 1, 2, 4 (2), 24, 25, 26 (1) (a) of the Prevention and Combating of Corrupt Activities Act 12 of 2004.
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P.V. Mudau
Regional Magistrate
APPEARANCES
On behalf of the State : Adv M.L. Mothupi
Instructed by : Director of Public
Prosecutions, Polokwane
On behalf of the defence : Mr A.E. Mudau
Legal Aid South Africa,
Giyani, Tzaneen
Date handed down : 06 June 2023
Dates heard : 23/08/2021; 20/10/2021;
09,10/02/2022;08,09,10,14,
22,29,30/03/2022;16,19/05/
2022;20,21,22,23/06/2022;
30,31/08/2022;12/09/2022;
25/10/2022;12/12/2022;
06/06/2023
Cited documents 3
Act
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Dispute Resolution and Mediation
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Peace and Security
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