THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 370/2016

In the matter between:

LEBOGANG PHILLIPS
APPELLANT

and

THE STATE
RESPONDENT

Neutral Citation: Phillips v The State (370/2016) [2016] ZASCA 187

(1 December 2016)

Coram:
Leach, Tshiqi, Zondi JJA and Schoeman and Schippers
AJJA
Heard:
11 November 2016
Delivered:
1 December 2016
Summary:
The Prevention and Combating of Corrupt Activities Act
12 of 2004 does not limit the penal discretion of the sentencing court:
sentence of a fine not appropriate for a public officer convicted of
contravening s 4(1)(a)(i)(aa) of the Act: failure by the trial court to have regard
to all relevant considerations constitutes a misdirection warranting
interference with the sentence imposed.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from Gauteng Division of the High Court, Pretoria (Kubushi J and
Masango AJ, sitting as a court of appeal).
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, ante-dated to 20 June
2012.’
______________________________________________________________

JUDGMENT
______________________________________________________________

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

[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’ 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 the
appellant arrested one John Carlisle (the complainant), a student at the
University of Pretoria for allegedly drinking in public. The 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.

[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 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 Police Station. The appellant was
arrested and subsequently charged with corruption.

[4] The trial court accepted the version of the complainant that he indeed
did not consume alcohol in public and that the charge against him was
unfounded, and convicted the appellant. It appeared that the appellant was a
first offender in relation to the offence of corruption, was 35 years old at the
time and had had nine years’ flawless service in the South African Police
Service. He is married and has three children. As a result of the conviction he
lost his employment. It appeared further that the appellant admitted to the
correctional supervision officer during the interview to have committed the
offence. The trial court found that the appellant’s personal circumstances in
the light of the gravity of the offence did not constitute mitigating factors. The
court below endorsed the findings of the trial court and dismissed the appeal
against sentence.

[5] It is trite that a court exercising appellate jurisdiction cannot, in the
absence of material misdirection by the trial court, assess the appropriateness
of the sentence as if it were the trial court and then alter the sentence arrived
at by that court, simply because it disagrees with it. To do so, would be to
usurp the sentencing discretion of the trial court. But where material
misdirection has been demonstrated, an appellate court is not only entitled,
but is duty-bound to consider the question of sentence afresh to avoid an
injustice.

[6] At the hearing of the appeal it was submitted by the appellant that s
26(1)(a)(ii) of the Act, unlike s 3 of the repealed Corruption Act 94 of 1992
(Corruption Act), limits the trial court’s sentencing discretion by prescribing as
a first option a fine and a second one, imprisonment. The effect of that
limitation, argued the appellant, is that the sentencing court should consider
first imposing a fine rather than direct imprisonment. He argued that under the
old Corruption Act, the sentencing court enjoyed a wide penal discretion and
for that reason it is unhelpful to rely on cases such S v Mahlangu & another
[2011] ZASCA 64; 2011 (2) SACR 164 (SCA) which were considered under
the Corruption Act.

[7] Section 4(1)(a)(i)(aa) which deals with offences in respect of corrupt
activities relating to public officers is contained in Chapter 2, Part 2 of the Act.
It reads:
‘(1) Any─
(a)
public officer, who directly or indirectly, 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)
. . .
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)
. . .
exercise, carrying out or performance of any powers, duties or functions arising out of
a constitutional, statutory, contractual or any other legal obligation;
. . .
is guilty of the offence of corrupt activities relating to public officers.’

[8] Section 26 deals with penalties. Subsection (1) provides as follows:
‘(1) Any person who is convicted of an offence referred to in─
(a)
Part 1, 2, 3 or 4, or section 18 of Chapter 2, is liable─
(i)
. . .
(ii)
in the case of a sentence to be imposed by a regional court, to a fine or to
imprisonment for a period not exceeding 18 years; or’ (My emphasis)
(iii)
. . .

[9] The question is whether s 26(1)(a)(ii) has the effect contended for by
the appellant. That question turns on a proper interpretation of the relevant
section of the Act. The interpretative exercise must be conducted in
accordance with the established approach set out in Natal Joint Municipal
Pension Fund v Endumeni Municipality1 para 18, This exercise involves
ascertaining the proper meaning and effect of the statutory language used,
viewed in context and with reference to the apparent purpose to which it is
directed, and having regard to the material known to the lawmaker.

[10] The Act repealed the Corruption Act and, with exception of s 34(2),
came into operation on 27 April 2004. The purpose of the Act, among others,
is ‘[T]o provide for the strengthening of measures to prevent and combat
corruption and corrupt activities; to provide for the offence of corruption and
offences relating to corrupt activities; . . .’. There is no doubt that corruption
and corrupt activities undermine constitutional rights and further ‘endanger the
stability and security of societies, undermine the institutions and values of
democracy and ethical values and morality, jeopardise sustainable
development, the rule of law and credibility of governments. . .’.2 Milton South
African Criminal Law and Procedure Vol III Statutory Offences3 states that the
preamble to the Act specifically provides that part of the rationale for replacing
the 1992 formulation of the offence of corruption with the 2004 version, is that
it was deemed ‘desirable to unbundle the crime of corruption, in terms of
which, in addition to the creation of a general, broad and all-encompassing
offence of corruption, various specific corrupt activities are criminalized.’

[11] In my view, having regard to the legislative history, context and the
purpose of the Act, by enacting the Act the legislature did not intend to restrict
the sentencing discretion of the trial court. On the contrary, the provision of
the section makes it clear that the legislature intended that public officers who
are convicted of corruption may be dealt with harshly. That objective could be
frustrated if one were to read s 26(1) in a manner contended for by the

1 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA
593 (SCA).
2 Long title of the Act.
3 At D3 3-4.

appellant. It is clear that the provision of s 26 leaves the sentence in the
hands of the sentencing court to impose either a fine or a period of
imprisonment.

[12] It was further submitted by the appellant that the trial court misdirected
itself by failing to consider other sentencing options, such as periodical
imprisonment in terms of s 285 of the Criminal Procedure Act 51 of 1977 (the
CPA) or a correctional supervision sentence in terms of s 276(i)(h). However,
the trial court carefully considered other sentencing options and concluded
that because of the seriousness of the crime and interests of society, direct
imprisonment was an appropriate sentence. Based on the consideration of all
the relevant facts, this conclusion cannot be faulted.

[13] In the case of S v Narker & another 1975 (1) SA 583 (A) Holmes JA
(Muller JA and Corbett JA concurring) observed at 586B:
‘1. Bribery is a corrupt and ugly offence striking cancerously at the roots of justice
and integrity, and it is calculated to deprive society of a fair administration. In general,
courts view it with abhorrence; . . . see R. v Chorle, 1945 A. D. 487 at pp. 496 - 7;
and Limbada v Dwarika, 1957 (3) SA 60 (N).’

[14] This Court in S v Mahlangu para 26 held:
‘Corruption has plagued the moral fibre of our society to an extent that, to some, it is
a way of life. There is a very loud outcry from all corners of society against corruption
which nowadays seems fashionable. Some even go as far as stating that corruption
is rendering the State dysfunctional. It is the courts that must implement the penalties
imposed by the legislature. It is also the courts that must ensure that justice is not
only done, but also seen to be done. The trial court considered all the aggravating
and mitigating factors and came to the conclusion that an effective imprisonment of
four years was appropriate. In the circumstances of this case, I agree.’
I fully agree with these sentiments.

[15] In the present case the appellant’s conduct was egregious. He
manufactured a case against the complainant for the purposes of soliciting a
bribe. The appellant used threats to inspire fear in the complainant’s mind in
order to induce the complainant to pay him R900. He abused his position as a

public officer and, as if this was not enough, he pleaded not guilty and
advanced a defence which he knew was hopeless. He showed no remorse.
The appellant violated the complainant’s constitutional right4 to freedom and
security under s 12(1) and the right to have his inherent dignity respected and
protected under s 10. In the circumstances, having regard to the serious
nature of the offence, direct imprisonment was called for. There is also no
merit in the appellant’s submission that if the State had intended to argue for a
heavy sentence it should have charged him with extortion which is more
serious than corruption.

[16] It was further submitted by the appellant that an effective term of seven
years’ imprisonment is disproportionate to the crime, the personal
circumstances of the appellant and the interests of society. In contending for
a lesser sentence, counsel referred us to cases of S v Newyear 1995 (1)
SACR 626 (A); S v Mtsi 1995 (2) SACR 206 (W); S v Mogotsi 1999 (1) SACR
604 (W). It is unnecessary to analyse these decisions, the facts of which are
materially different to the present. Each case must be decided on its own
relevant facts and circumstances. What these decisions do show, however, is
that law enforcement officers who abuse their positions for corrupt benefits
can expect little sympathy from the courts. After all, s 205(3) of the
Constitution records that the objective of the police service is ‘to prevent,
combat and investigate crime, to maintain public order, to protect and secure
the inhabitants of the Republic and their property, and to uphold and enforce
the law’. In order to ensure that these objectives are reached, it is necessary
to deal firmly with police officials who are in breach of their obligations under
this section, and to warn their colleagues that actions of the sort the appellant
committed will not be tolerated.

[17] The issue therefore is whether it can be said that the trial court
exercised its judicial discretion improperly or whether the sentence it imposed,
is disturbingly inappropriate. In my view, the trial court placed undue
emphasis on deterrence. It held that ‘in this type of an offence that deterrence

4 F v Minister of Safety and Security & others [2011] ZACC 37; 2012 (1) SA 536 (CC).

must also be strongly considered and will come to the fore . . . because of the
fact that . . . everyone must be made aware of the consequences of an
offence . . .’.

[18] While that is no doubt true, for the reasons I have just mentioned,
deterrence is indeed one of the objects and purpose of criminal punishment,
the three other aspects of sentencing, namely prevention, rehabilitation and
retribution are also important. Offenders should not be sacrificed on the altar
of deterrence.

[19] As I have mentioned in para [4] of this judgment the appellant was 35
years old at the time of the commission of the offence concerned, and married
with three children. The appellant has a National Diploma in Education
(Commerce) which he obtained before he joined the South African Police
Service. When these facts are looked at cumulatively, they serve to
demonstrate that the appellant does have prospects of rehabilitation and
correction, and becoming a useful member of society and a sentence to be
imposed, must also be informed by these considerations.

[20] It is therefore clear that in the determination of what an appropriate
sentence would be, the trial court misdirected itself by over-emphasizing the
factor of deterrence and thereby failed to give adequate weight to all other
relevant considerations. This is a factor which justifies this Court to interfere
with the sentence. Furthermore the sentence of seven years’ imprisonment,
albeit two years of which was suspended, is unduly severe.  In my view, I
consider a sentence of four years’ imprisonment to be appropriate, and would
be an adequate deterrence to other police officers who may be tempted to
supplement their income by corrupt activities. There is sufficient disparity
between that sentence and the sentence imposed to oblige this Court to
interfere.5

5 S v Berliner 1967 (2) SA 193 (A) at 200E-H.

[21] Although the appellant is currently free on bail, the altered sentence
should be ante-dated under s 282 of the Criminal Procedure Act 51 of 1977 to
20 June 2012, the date he was sentenced in the trial court, for him to enjoy
the benefit of imprisonment already served.

[22] In the result, the following order will issue:
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, ante-dated to 20 June
2012.’

________________
D H ZONDI
JUDGE OF APPEAL

APPEARANCES:
For appellant:
A B Booysen

Instructed by:

Du Toit Attorneys, Capital Park

SMO Seobe Attorneys Inc, Bloemfontein

For respondent:

G C Nel

Instructed by:

Director of Public Prosecutions, Pretoria

Director of Public Prosecutions, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM
The Registrar, Supreme Court of Appeal
DATE
1 December 2016
STATUS
Immediate

Phillips v The State (370/16) [2016] ZASCA … (1 December 2016)

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal.

Today the SCA upheld an appeal by Lebogang Phillips against sentence of 7 years’
imprisonment, two years of which were suspended on a charge of contravening
section 4(1)(a)(i)(aa) of the Prevention and Combating of Corrupt Activities Act, 2004
(Corruption).

The evidence revealed that in the early hours of 16 July 2010 near Hatfield Square,
Pretoria, Mr Phillips, the then police officer, arrested the complainant, a student at
the University of Pretoria, for allegedly drinking in public.

Despite his denial of wrong doing the complainant was placed in the back of a police
van and driven to the Brooklyn Police Station. There he was left locked in the back of
the police van for a while before Mr Phillips came and demanded payment of R2000
in cash, which he said was a fine the complainant had to pay in order to avoid going
to jail. As the complainant did not have such an amount immediately available on
him. Mr Phillips took him to the nearest ATM to withdraw cash. The complainant
managed to withdraw R900 and gave it to Mr Phillips. Mr Phillips accepted it and
released the complainant. Later that day the complainant opened a case of bribery
against Mr Phillips at the Brooklyn Police Station. Mr Phillips was arrested and
subsequently charged with corruption. The trial court found that the charge against
the complainant was unfounded and convicted Mr Phillips. It sentenced him to seven
years’ imprisonment which was confirmed on appeal by the Gauteng Division of the
High Court, Pretoria.

In a further appeal, the SCA reduced the sentence to four years’ imprisonment. It
found that the trial court had misdirected itself by over-emphasising the factor of

deterrence. The SCA considered that the sentence of four years’ imprisonment was
appropriate and would be an adequate deterrence to other police officers who may
be tempted to supplement their income by corrupt activities.

---ends---