(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the appeal between:

and

DOLAMO AJ.
[1] The Appellant was convicted in the Regional Court on his plea of guilty in terms of section 112 (2) of the Criminal Procedure Act 51 of 1977 (the “Act”) on one charge of contravention of section 4 (1) (a) of the Prevention and Combating of Corrupt Activities Act 12 of 2004 (“Corrupt Activities Act”), and one charge of contravention of section 4 (a) of the Drugs and Drug Trafficking Act 140 of 1992. On 18 November 2012 he was sentenced to three years imprisonment of which 1 year was suspended for 5 years. The two counts were taken together for purposes of sentence. The Appellant thereafter remained in custody serving the aforesaid sentence until 14 December 2011 when he was granted bail in the sum of RIO 000-00 pending appeal. This was after a successful application for leave to appeal his sentence.

[2] The factual matrix in this matter can be gleaned from the detailed charge sheet as well as the Appellant’s statement in terms of section 112 (2) of the Act. These were briefly as follows: During December 2010 W/O Wessels applied for and obtained authorisation to conduct an operation in terms of section 252 A of the Act to entrap Correctional Service officials who were smuggling drugs into the Malmesbury Prison. For this purpose he approached one Zola Baba and tasked him with the duty to request the Appellant, a warden at the prison, to smuggle 10 Mandrax tablets to an inmate in the prison. He also booked out R1 500-00 in case, made copies of these notes and handed them to Baba with instructions to act as an agent. This was on 5 March 2011. On the same day and following an earlier telephonic conversation, the Appellant approached Baba and asked him whether he was “Peter” and whether he had something for him. Baba confirmed that he was Peter and had something for him. He handed to Appellant the 10 Mandrax tablets whereupon the Appellant demanded R1 000-00. Baba gave him R1 000-00 from the marked notes. The appellant was shortly thereafter confronted and arrested by W/O Wessels. His attempts to dispose of the drugs failed as Wessels was able to intercept him. Wessels also found in his possession the R1 000-00 notes which he got from Baba.

[3] In his written plea explanation the Appellant admitted that at all relevant times, he was a member of and employed by the Department of Correctional Services as a warden, stationed at Malmesbury Prison and as such a public officer and a person who was party to an employment contract as defined in section 1 of the Corrupt Activities Act. He confirmed that he received the Mandrax tablets as well as R1 000-00 on the understanding that he was to smuggle these into the prison, and that once the drugs were through the prison’s security system, somebody would collect them from him. He also admitted the lawfulness of the trap which was in accordance with the prescripts of section 252 A of the Act. He furthermore admitted to the wrongfulness of his conduct and his intention to act as he did fully conscious of the wrongfulness thereof.

[4] The Appellant’s conduct fell under the ambit of Sections 3 and 4 (1) (a) of the Corrupt Activities Act. These sections state and I quote :

(a) accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person; or
(b) gives or agrees or offers to give to any other person any gratification, whether for the benefit of that other person or for the benefit of another person,
in order to act, personally or by influencing another person so to act, in a manner -
(i) that amounts to the -
(aa) illegal, dishonest, unauthorised, incomplete, or biased; or
(bb) misuse or selling of information or material acquired in the course of the, exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other illegal obligation;
(ii) that amounts to -
(aa) the abuse of a position of authority;
(bb) a breach of trust; or
(cc) the violation of a legal duty or a set of rules;
(iii) designed to achieve an unjustified result; or
(iv) that amounts to any other unauthorised or improper inducement to do or not to do anything, is guilty of the offence of corruption.
Part 2: Offences in respect of corrupt activities relating to specific persons

[5] In the determination of sentence the learned Magistrate considered the Appellant’s

corruption, the interests of society whilst at the same time accommodating the personal circumstances of the Appellant.

[10] Taking all the relevant circumstances into consideration I am of the view that a sentence of three years imprisonment in terms of section 276 (1) (i) of the Act would be an appropriate sentence.
[11] I would accordingly on appeal order as follows:
1) The appeal against sentence is upheld;
2) The sentence imposed by the trial court is set aside and substituted with the following sentence:

M.J. DOLAMO
Acting Judge of the High Court

I agree and it is so ordered.
Y S MEER 
Judge of the High Court