Sipho Bonginkosi Msane and Robert Lijuvwani Kone v The State

The appellants, a sergeant and constable attached to the Hillbrow Crime Intelligence Unit of SAPS, arrested Ms Susan Schesser on a routine patrol and found 17 ecstasy tablets in her possession. Instead of prosecuting her, they demanded R4,000 in exchange for dropping charges and returning the tablets. Schesser agreed to pay but reported the incident to the Anti Corruption Unit of SAPS. She was provided with marked money and arranged to meet the appellants to hand it over. Before the money was exchanged, members of the Anti Corruption Unit arrested the appellants and found the ecstasy tablets in their vehicle. The appellants were convicted in the Regional Court of extortion and unlawful possession of dangerous drugs. On appeal to the High Court, the extortion conviction was altered to attempted extortion, but the sentence was not altered. The appellants were originally sentenced to four years' imprisonment (one year suspended) on count one and one year on count two, to run consecutively.

• Whether the sentence imposed for attempted extortion was appropriate given the alteration of the conviction from completed extortion
• Whether the personal circumstances of the appellants were properly considered in sentencing
• Whether the consecutive sentences imposed for attempted extortion and drug possession amounted to duplication of punishment

The appeal succeeded partially. The order of the Johannesburg High Court was set aside. The sentence on count one (attempted extortion) remained four years' imprisonment with one year suspended for five years on condition. The sentence on count two (drug possession) remained one year imprisonment but was ordered to run concurrently with count one, rather than consecutively. The effective sentence was thus reduced from four years to three years imprisonment.

The binding principles established are: (1) The alteration of a conviction from a completed crime to an attempt does not automatically require a reduced sentence where the moral blameworthiness remains equally high and the only reason for non-completion was detection or intervention by authorities. (2) When multiple convictions arise from conduct that constitutes essentially a single criminal enterprise, with one offence being incidental to or in aid of the other, imposing consecutive sentences without proper consideration amounts to duplication of punishment and constitutes a misdirection. In such circumstances, concurrent sentences are appropriate. (3) In determining an appropriate sentence, courts must consider whether the imposition of consecutive sentences would result in duplication of punishment for what is essentially one criminal act.

The Court made observations about the moral reprehensibility of extortion, particularly when committed by law enforcement officers, emphasizing that such conduct is especially serious given the position of trust held by police officers. The Court also noted that generally lesser punishment is imposed for attempts than for completed crimes from the viewpoint of retributive theory, as either no harm or less harm has been caused, but emphasized that each case must be decided on its own facts. The Court referenced Snyman's Criminal Law text regarding the general principle of lesser punishment for attempts, while demonstrating that this principle is not absolute and must yield to considerations of moral culpability in appropriate circumstances.

This case is significant in South African criminal law for establishing principles regarding: (1) sentencing for attempted crimes, particularly that moral blameworthiness may justify similar sentences for attempts as for completed crimes when the only reason for non-completion was external intervention; (2) the principle against duplication of punishment where multiple charges arise from essentially one criminal enterprise; and (3) heightened culpability and sentencing considerations when crimes are committed by law enforcement officers who abuse their positions of trust. It reinforces the approach in S v Mathebula regarding concurrent versus consecutive sentences to avoid duplication of punishment.