THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No:  96/2008
No precedential interest

In the matter between:

SIPHO BONGINKOSI MSANE                                            FIRST APPELLANT
ROBERT LIJUVWANI KONE                                         SECOND APPELLANT

v

THE STATE                                                                                 RESPONDENT

Neutral citation: Msane v The State (96/2008) [2008] ZASCA 118
(26 September 2008).

Coram:
Lewis, Mlambo and Cachalia JJA

Heard:
27 August 2008

Delivered:
26 September 2008

Summary:
Criminal law – attempt – appropriate sentence. Sentence –
duplication of punishment.

_______________________________________________________________

ORDER
_______________________________________________________________

On appeal from: High Court, Johannesburg (Goldstein and Khampepe JJ
sitting as Full Court).

The appeal succeeds and the order of the Johannesburg High Court is
set aside.

In its place the following order is substituted:

The appeal against sentence succeeds and the sentence imposed by
the Regional Court is altered to read:

‘(i)
On count one the accused are sentenced to four years’
imprisonment of which one year’s imprisonment is suspended for a
period of five years on condition that they are not convicted of extortion
or of a contravention of the Prevention and Combating of Corrupt
Activities Act 12 of 2004, during the period of suspension.

(ii)
On count two the accused are sentenced to one year’s
imprisonment which is ordered to run concurrently with the sentence
imposed on count one.’

______________________________________________________________

JUDGMENT
______________________________________________________________
MLAMBO JA (LEWIS and CACHALIA JJA CONCURRING):

[1] The appellants were convicted by the Johannesburg Regional Court of
extortion and the unlawful possession of 17 ecstasy tablets.1 On the extortion
count they were sentenced to four years’ imprisonment one of which was

1 In terms of s 4 of The Drugs and Drug Trafficking Act 140 of 1992 it is an offence to be
found in possession of a substance decreed dangerous and dependence producing.

suspended for five years on condition that they were not convicted of extortion
or of a contravention of s 1(1) of the Corruption Act 94 of 1992 committed
during the period of suspension. On the drugs related count they were
sentenced to one year’s imprisonment. The sentences on the two counts were
ordered to run consecutively, resulting in an effective four year imprisonment
sentence.

[2] In an appeal to the Johannesburg High Court the extortion count was
altered to one of an attempt. That court (Goldstein and Khampepe JJ), did
not, however, interfere with the sentence imposed, hence this appeal with
leave of this court.

[3] The facts very briefly are that the appellants, a sergeant and constable
respectively, attached to the Hillbrow Crime Intelligence Unit of the South
African Police Services (SAPS) had apprehended the complainant, Ms Susan
Schesser, on a routine patrol, and found 17 ecstasy tablets in her possession.
They arrested her but demanded that she pay them an amount of R4 000 on
receipt of which they would drop charges and return the ecstasy tablets to
her. She agreed to make the payment and arranged to do so the following
day.

[4] However, Schesser decided to report the incident to the Anti Corruption
Unit of the SAPS which decided to entrap the appellants using her as bait.
She was provided with marked money and instructed to meet the appellants
at their rendezvous to hand over the money. Schesser met the appellants as
arranged and as she was about to hand the money over to them, a police
vehicle happened to pass by not far from them. The appellants became
suspicious and instructed her to follow them to another area where the
handover would be done. As they drove off members of the Anti Corruption
Unit pounced and on searching the appellants’ vehicle found the 17 ecstasy
tablets in their motor vehicle and arrested them.

[5] It is not in dispute that upon their arrest the appellants had not yet
taken the money from Schesser. They could therefore not be convicted of

extortion proper, and the court a quo was correct in altering that conviction to
one of an attempt. That court, however, did not alter the sentence imposed by
the regional court. The issue now before us is whether the alteration of the
conviction should have resulted in a decreased sentence as contended by the
appellants.

[6] The court a quo did not elaborate on any reason it may have had for
refusing to interfere with the sentence. In this regard the court a quo,
apparently as an afterthought, as it had already dismissed the appeal, stated
simply: ‘Of course there is the one aspect, and that is that we have now
corrected the conviction by reducing it from one of extortion to one of
attempted extortion, but in my view that does not justify reducing the
sentences’.

[7] The submission advanced to us on the appellants’ behalf in this regard
is that in imposing sentence on count one their personal circumstances,
especially the fact that they retained their jobs despite these offences due to
their outstanding record as policemen, were not given proper consideration by
the  courts below. Furthermore, so the submission went, as the regional court
had sentenced them based on a completed offence, the alteration thereof to
an attempt by the high court should ‘logically have altered the sentence’.

[8] That, in my view, is not the test. The test, this being an appeal, is
whether in imposing sentence the courts below committed any misdirection
and, if not, whether the sentence is shockingly inappropriate. The nature of
the offence and the particular circumstances of the matter and the personal
circumstances of the offenders remain relevant in the determination of an
appropriate sentence.

[9] The appellants’ criticism of the sentence imposed by the regional court
on count one is that it failed to have regard to all relevant personal factors.
However, I consider that the regional court properly applied its mind to all
relevant factors before imposing the sentence upheld in the court a quo. In
particular that court took account of the personal circumstances of the

appellants, especially that they were both highly regarded members of the
police force and had family responsibilities. The court also took account of the
pre-sentence reports filed on behalf of the appellants recommending non-
custodial sentences. In the final analysis the regional court was of the view
that extortion was a very serious offence and was prevalent in its area.

[10] The second criticism, directed at the high court, is that it should have
reduced the sentence since it found that only attempted extortion had been
committed. In my view, the appellants’ stance in this regard is misplaced.
Generally, as Snyman2 says, a ‘lesser punishment is imposed for attempt
than for the completed crime’. The basis advanced for this view is that ‘from
the viewpoint of the retributive theory of punishment, either no harm or less
harm (compared to the completed crime) has been caused’. Each case must,
however, be decided on its own facts.

[11] In my view moral blameworthiness plays a critical role in the
determination of an appropriate sentence and, extortion, as found by the
regional court, is a very serious offence. This offence, especially when
committed by law enforcement officers, is morally reprehensible. The fact that
we are here dealing with attempted extortion does not detract from the moral
reprehensibility of the appellants’ conduct. Had Schesser not reported the
matter to the Anti Corruption Unit, the appellants’ crime would probably not
have been detected. Clearly the mere fact that the conviction was altered to
an attempt does not make the offence less morally blameworthy, as it would
have had the appellants changed their minds about going ahead with the deal
and not completed the commission of the offence. In my view the sentence
imposed for the attempted extortion does not induce a sense of shock.

[12] During argument we raised the issue whether the sentence imposed on
the drugs possession count should have been ordered to be served
concurrently with the sentence on the attempted extortion count. It is
important in this regard to take account of the fact that the appellants took

2 C R Snyman Criminal Law 5 ed (2008) p 294.

possession of the ecstasy tablets only for the purpose of safekeeping, so to
speak, until they were paid the extortion money. It is also relevant that such
possession was to aid the extortion and as such their conduct constituted in
essence the commission of a single offence. In my view the imposition of
consecutive sentences under these circumstances without due consideration
that one is essentially dealing with one offence amounted to a duplication of
punishment. It is in this respect that the regional court and court below
misdirected themselves. See S v Mathebula 1978 (2) SA 607 (A) at 613D-E
where Trollip JA stated:

‘As stated above, these two crimes must, for purposes of conviction and punishment,
be regarded as separate and distinct. Extreme care was therefore required in the
exercise of the discretionary power to avoid any duplication of punishment in passing
sentence on count 3 . . .’

See also S v Morten 1991 (1) SACR 483 (A) at 485i-j. In these circumstances
a proper exercise of discretion would have dictated that the sentence of one
year’s imprisonment imposed on the drugs count be ordered to run
concurrently with the attempted extortion count. The appeal should, in my
view, succeed to this limited extent only.

The appeal succeeds and the order of the Johannesburg High Court is
set aside.

In its place the following order is substituted:

The appeal against sentence succeeds and the sentence imposed by
the Regional Court is altered to read:

‘(i)
On count one the accused are sentenced to four years’
imprisonment of which one year’s imprisonment is suspended for a
period of five years on condition that they are not convicted of extortion
or of a contravention of the Prevention and Combating of Corrupt
Activities Act 12 of 2004, during the period of suspension.

(ii)
On count two the accused are sentenced to one year’s
imprisonment which is ordered to run concurrently with the sentence
imposed on count one.’

________________
D MLAMBO
JUDGE OF APPEAL

APPEARANCES:
FOR APPELLANT:
E S CLASSEN
INSTRUCTED BY:
DAVID H BOTHA, DU PLESSIS & KRUGER INC;
JOHANNESBURG
SYMINGTON
&
DE
KOK
ATTORNEYS;
BLOEMFONTEIN
FOR RESPONDENT:
P NEL
INSTRUCTED BY:
THE DIRECTOR OF PUBLIC PROSECUTIONS;
JOHANNESBURG

THE DIRECTOR OF PUBLIC PROSECUTIONS;
BLOEMFONTEIN
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:

26 September 2008

Status: Immediate

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.

S B Msane v The State

The Supreme Court of Appeal (SCA) today reversed the order of the Johannesburg High Court confirming an
effective four year sentence of imprisonment imposed on the appellants by the Johannesburg Regional
Court.

The appellants, a sergeant and constable respectively, and attached to the Hillbrow Crime Intelligence Unit
of the South African Police Services, had arrested a woman, S, after they found her in possession of 17
ecstasy tablets. After the arrest they demanded that she pay them R4 000 in return for which they would
return her ecstasy tablets and drop the charge. She undertook to pay them the next day but reported the
matter to the Anti Corruption Unit of the SAPS, who decided to entrap the appellants using her as bait.

As S was about to hand the money to the appellants they became suspicious when a police vehicle went
past, and instructed her to follow them to another area where the handover would be done. Shortly
thereafter, but before the handover, members of the Anti Corruption Unit confronted them and arrested them
for extortion and being in possession of the ecstasy tablets.

The Johannesburg Regional Court convicted the appellants on two counts, extortion and the illegal
possession of drugs. It sentenced them to four years’ imprisonment on the extortion count and one year on
the drug possession count. One year of the four was suspended on certain conditions but the sentences
were to run consecutively.

On appeal to the Johannesburg High Court the extortion conviction was altered to an attempt, but the
sentences were not interfered with. The SCA found that the alteration of a conviction from a completed
offence to an attempt did not in itself warrant imposition of a lesser sentence. The SCA found that the facts of
each case dictated what sentence was to be imposed in each case. The court ruled that it could find no
misdirection regarding the sentence imposed on the attempted extortion count.

The SCA, however, considered that the two offences were committed in pursuit of one object. This, found the
SCA, required that when it came to imposing sentence punishment should not be duplicated. The SCA found
that both the regional and high courts had erred in not ordering that the sentences run concurrently.

The SCA thus ordered that the one year’s imprisonment imposed on the drugs count be concurrently with the
attempted extortion count.