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[2017] ZAWCHC 124
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S v Miller and Others (SS13/2012) [2017] ZAWCHC 124 (4 September 2017)
SAFLII
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Certain
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IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
REPORTABLE
CASE
NUMBER
: SS13/2012
DATE
:
4 SEPTEMBER 2017
In
the matter between:
THE
STATE
and
PHILLIP JAMES
MILLER
Accused
1
WILLEM
JACOBUS VAN
RENSBURG
Accused
2
ADRIAAN GAVIN
WILDSCHUTT
Accused
3
TONY PETER DU
TOIT
Accused
4
JOHANNES EMIL
LIEBENBERG
Accused
5
RODNEY
ONKRUID
Accused
6
STANLEY
SIFISO
DLAMINI
Accused
7
DESMOND DAVID
PIENAAR
Accused
8
GREGORY
ABRAHAMS
Accused
9
JUDGMENT
GAMBLE,
J
:
INTRODUCTION
1.
Haliotis midae
is a species
of mollusc which is found in
the
colder, intertidal coastal waters of the Western and Southern Cape.
Locally known as “
perlemoen
”
or “
perlie
”,
it is universally called abalone. The mollusc consists of a
large circular shell, which resembles a shallow dish,
ideally about
12 to 15 centimetres in diameter, to which is attached through a
thick muscular stem, a slimy, hard, muscular foot
about two to four
centimetres thick. The foot affixes the mollusc, through a
natural suction mechanism, to rocky outcrops
on the ocean floor.
2.
Abalone meat is considered by some to be the ultimate marine
delicacy. It is scarce, difficult to dive out and given the
hard impenetrable nature of its flesh (rather like a piece of old car
tyre), preparation of abalone is an arduous task: each
cook has
a special recipe to bring out the delicate flavour in this otherwise
unappetising piece of marine life.
3. Abalone is a prized delicacy in the
Orient, where, says Wikipedia Online Dictionary, it is served
on special festive occasions
such as weddings and the like.
Some suggest also that it has aphrodisiac qualities. The
popularity of abalone in the
East has led to large quantities of the
mollusc’s muscular food being exported from South Africa from
the 1980’s to
date. The evidence in this case suggests
that the vast majority of these exports have been illegal, resulting
in a state
of collapse and near extinction of the resource, although
local news reports from time to time during the course of this trial,
regarding seizure by the law enforcement authorities of quantity of
abalone, suggest that the poaching of abalone continues unabated
in
the Western Cape. News reports on the News24 Online service
during the currency of this trial (
inter alia
on 27 September
2016, 25 November 2016, 10 March 2017, 1 June 2017, 11 July 2017 and
9 August 2017) indicate that the law enforcement
authorities continue
to seize large quantities of illegal abalone worth many millions of
Rand and make arrests in that regard in
the Western Cape.
THE
ARREST OF THE ACCUSED
4.
The nine accused charged in this matter were arrested, along with a
number of others, in 2006 on statutory charges relating to
the
illegal possession for commercial exploitation of abalone during the
years 2005 to 2006. After a number of appearances
in the
Regional Court, Cape Town, the matter was transferred to this court
for a trial which commenced in 2008 before Erasmus,
J. At that
stage there were 19 accused, about half of whom were represented by
counsel on paid briefs, and the remainder
by the Legal Aid Board.
5.
The proceedings before Erasmus, J, commenced with certain preliminary
points being taken by the accused then before court, and
in some
instances detailed rulings were delivered by that court.
See, for example,
S v Chao & Others
2009(1) SACR 479 (C). During the time that the matter was
before Erasmus, J, one of the accused, Jyeng Chang Ku aka Jerry
Ku,
skipped bail and a warrant for his arrest was issued.
Proceedings before that court were delayed from time to time, as
the
accused hired and fired their legal representatives. There was
some further delay in the matter while the parties awaited
a decision
from the Constitutional Court, relating to the constitutionality of
certain aspects of the Prevention & Organised
Crime Act 121 of
1998 (“POCA”), which evidently impacted on certain of the
charges they faced. See
Savoi and
Others v National Director of Public Prosecutions and Another
2 014(1) SACR 545 (CC). That matter had commenced in the High
Court in Pietermaritzburg in 2012, where a ruling on constitutional
validity had been made, which ruling was confirmed by the
Constitutional Court in March 2014.
6.
Certain of the accused before Erasmus, J, tendered pleas of
guilty, which the State accepted and in respect whereof non-custodial
sentences were imposed. Once the guilty pleas had been disposed
of the trials were separated. The matter was removed
from the
trial roll and remitted to this court’s criminal pre-trial
procedural roll. The matter was eventually sent
to trial before
this Court, sitting with two Assessors, on 10 August 2014.
7.
During the pre-trial phase in 2014, another of the accused, Yu Chen
Chao aka Richard Chao, failed to appear after he had skipped
bail.
Once his bail had been estreated, the matter continued against the
nine accused listed in the indictment. At
the first appearance
before this Court on 10 August 2014, a postponement was
requested for a week to enable the defence and
the State to attend to
certain additional pre-trial issues. When the matter
recommenced on 18 August 2014, accused 7,
Stanley Dlamini, a
citizen of Swaziland, who had evidently returned home in the interim,
failed to appear and the matter continued
in his absence.
Subsequently Dlamini’s bail was estreated after he failed to
return to South Africa.
8. By the time the case against the
remaining accused was ready to proceed, their financial resources had
been depleted by the earlier
proceedings and they were all obliged to
avail themselves of the service of counsel appointed by Legal Aid
South Africa.
Accused 1 was represented by Advocate L Joubert,
accused 2, 4 and 5 by Advocate D A J Uijs SC, accused 3 by Advocate C
Mellor,
who took over when Advocate D Theunissen, who originally
appeared for numbers 3, 8 and 9 was given leave to withdraw on
October
2014, accused 6 by Advocate S Banderker and accused 8 and 9
by Advocate V Fransch (who also took over after the withdrawal
of Advocate Theunissen). The State was initially
represented by Advocates D Greyling and A Heeramun. In August
2016, Ms Greyling was replaced by Advocate J van der Merwe.
The Court wishes to express its sincere thanks to all the
counsel for
the professional and collegial manner in which the matter has been
conducted. The case has been plagued by a
number of unavoidable
systemic delays of the type which are often associated with
protracted criminal trials, involving multiple
accused, and
everyone’s patience has been stretched at times. The
Court would also like to thank at this stage, the
two Assessors who
assisted us throughout the case and in particular the sterling work
done by Mr Vismer in the last couple of weeks
in helping the
preparation of this judgment. We have also been greatly
assisted by the court registrar, the usher, who has
always been there
to help us and the stenographer.
THE
CHARGES PREFERRED AGAINST THE ACCUSED
9. The charges against the accused are
formulated in three broad categories. The first category
relates to contraventions
of POCA, the second category relates to
various contraventions of the Marine Living Resources Act 18 of 1998
(“the MLRA”)
and the third category is fraud.
POCA
CHARGES
10. The POCA charges, based on the
contention that the accused were part of an unlawful enterprise, as
defined under that Act, arise
from the alleged contravention of two
sections of that Act.
10.1 On count 1, accused 1 to 5
were charged with contravening Section 2(1)(f), read with
Sections 1, 2(2) and 3 of
POCA, that is unlawfully managing an
enterprise conducted through a pattern of racketeering activity.
10.2 On count 2, accused 1 to 9
were charged with contravening Section 2(1)(e), read with the
same subsections
of the same Act. The substance of the
charges against them, is that they unlawfully conducted an enterprise
through a pattern
of racketeering or were associated therewith.
MLRA
CHARGES
11.
Approximately half of the 116 charges which the accused collectively
and individually face, relate to contraventions of the
MLRA.
There are five alleged contraventions of Section 18(1) of the MLRA,
read with Sections 1 and 58(1)(b) thereof, and
also read with Section
250 of the Criminal Procedure Act 51 of 1977 (“the CPA”)
i.e. unlawfully operating a fish processing
establishment. I
shall refer to these as the FPE charges.
11.1 Section
18 of the MLRA reads as follows:
“
18.1 No
person shall undertake commercial fishing or small scale fishing,
engage in mariculture or operate a fish processing establishment,
unless a right to undertake or engage in such an activity, or to
operate such an establishment, has been granted to such a person
by
the Minister.”
11.2 In the definitions clause
of the MLRA (Section 1): a fish processing establishment is defined
as:
“
Any vehicle,
vessel, premises or place where any substance or article is produced
from fish by any method, including the work of
cutting up,
dismembering, separating parts of, cleaning, sorting, lining
and preserving of fish or where fish are canned,
packed, dried,
gutted, salted, iced, chilled, frozen or otherwise processed for sale
in or outside the territory of the Republic.”
11.3 Fish is
defined in the MLRA as:
“
The marine
living resources of the sea and seashore, including any aquatic plant
or animal, whether piscine or not, and any mollusc,
crustacean,
coral, sponge, holothurians or other echinoderm, reptile and marine
mammal and includes their eggs, larvae and all
juvenile stages, but
does not include sea birds and seals.”
11.4 On count
3, the FPE charge is said to have been perpetrated by only
accused
1
and 3, and then only as an act of racketeering.
11.5 On
counts 99, 101 and 103, the FPE contraventions are said to have been
perpetrated only by
accused 1
, 3, 6 and 7.
11.6 On count
114, the FPE contravention is said to have been perpetrated only by
accused 1
, 2, 4 and 5.
11.7 The remainder of the counts
under the MLRA are alleged contraventions of Regulation 39(1)(a) of
the Regulations as promulgated
under Government Notice R1111 and
published in Government Gazette 19205 of 2 September 1998, read with
Regulation 1 and 96 of the
said regulations, as issued in terms of
Section 77 of the MLRA (“the MLRA Regs”), read
with Sections 1 and 58
thereof and Section 250 of the CPA,
i.e. unlawfully collecting, keeping, controlling or processing
abalone for commercial
purposes.
11.8
Regulation 39(1)(a) in the aforesaid Government Gazette reads as
follows:
“
No person
shall, except on the authority of a permit:
(a)
Engage in fishing, collecting, keeping or controlling of, or be in
possession of abalone for commercial purposes.”
11.9 On count 4, accused 1 and 3 are
charged with contravening this section of the MLRA Regs only as
an act of racketeering.
11.10 On counts 13,
18, 20, 24, 33, 36, 37, 40, 44 to 47 and 51,
accused 1
,
3, 8 and 9 are charged jointly with contraventions of the MLRA Regs
11.11 On counts 5 to 12, 14 to 17, 19,
21 to 23, 32, 34, 35, 38, 39, 41 to 43, 48 and 49, accused 1, 2, 4,
5, 8 and 9 are charged
jointly with contraventions of the MLRA Regs.
11.12 On counts 100, 102 and 104,
accused 1, 3, 6 and 7 are charged jointly with such
contraventions.
11.13 On count 105, accused 1, 2, 3,
4, 5, 8 and 9 are charged jointly with the contravention of the MLRA
Regs.
11.14 On counts 106 and 109, accused
1, 3, 8 and 9 are charged jointly with such contraventions.
11.15 On counts 107 and 108, accused
1, 2, 4, 5, 8 and 9 are charged jointly with similar contraventions;
11.16 On counts 115 and 116, accused
1, 2, 4 and 5 are charged jointly with similar MLRA Reg
contraventions.
FRAUD
CHARGES
12. The State alleges that the fraud
charges are required to be read with Section 51(2) of the CPA.
The substance of the charges
is that the accused defrauded SARS, more
particularly its Department of Customs & Excise, by failing to
disclose that the product
which was being exported by the enterprise
from South Africa, was a combination of abalone and pilchards as
opposed to just pilchards,
which were disclosed to the customs
authorities in the relevant shipping export documents. The
State alleges that this misrepresentation
occasioned prejudice or
potential prejudice to SARS.
12.1 On
counts 60, 65, 67, 71, 80, 83, 84, 87, 91 to 94, 97 and 98,
accused
1
, 3, 8 and 9 are charged jointly with fraud.
12.2 On counts 52 to 59, 61 to
64, 66, 68 to 70, 72 to 79, 81, 82, 85, 86, 88 to 90, 95 and 96,
accused 1, 2, 4, 5,
8 and 9 are charged jointly with this
offence.
12.3 On counts 110 and 113,
accused 1, 3, 8 and 9 are charged jointly with this offence; and
12.4 On counts 111 and 112,
accused 1, 2, 4, 5, 8 and 9 are charged jointly with this
offence.
For the sake of convenience, it is
noted that the fraud charges effectively mirror the MLRA
contraventions, so that each MLRA charge
has a matching fraud charge.
RESPONSE
TO THE CHARGES AND GENERAL CONDUCT OF PROCEEDINGS
13.
At the commencement of the case, each of the accused pleaded not
guilty to the charges preferred against them. None of
the
accused disclosed the bases of their defences at that stage.
However, during the course of the trial, a number of admissions
were
made by the defence, which admissions were recorded in terms of
Section 220 of the CPA. I shall deal with the particularity
of
those admissions as the need arises during the course of this
judgment.
14. As already averted to, the case
was plagued by a number of unavoidable lengthy postponements
for a variety of reasons,
including illness on the part of all
parties involved in this litigation and a conflict of interest, which
necessitated the appointment
of new counsel for accused 3, 8 and 9,
but eventually the State closed its case on 29 February 2016, the
95
th
day of the trial. When doing so, the State
abandoned certain charges against some of the accused. As a
consequence
thereof, the following accused were acquitted at that
stage of the following charges:
14.1 Accused 1: Charges 5, 6, 7,
8, 9, 49 and 96.
14.2 Accused 2: Charges 4, 5, 6,
7, 8, 9, 10, 49, 57 and 96.
14.3 Accused 3: Charges 13, 18,
20, 27, 60, 65, 67 and 71.
14.4 Accused 4: Charges 5, 6, 7,
8, 9, 10, 49, 57 and 96.
14.5 Accused 5: Charges 5, 6, 7,
8, 9, 10, 49, 57 and 96.
14.6 Accused 8: Charges 5, 6, 7,
8, 9, 49 and 96.
14.7 Accused
9: Charges 5, 6, 7, 8, 9, 49 and 96.
15.
After the close of the State case, counsel for each of the accused
indicated that they had been instructed to apply for their
respective
clients’ discharge in terms of Section 174 of the CPA. By
prior arrangement, the Court did not sit during
the second term of
2016 as I was on long leave which had been postponed a year earlier.
In the result, the matter stood down
until 1 August 2016 to enable
counsel for the defence and the State to prepare detailed written
argument in regard to the discharge
applications. On 15 August
2016, the Court delivered its ruling on the Section 174 application
and the orders made pursuant
thereto are a matter of record. By
way of summary, all of the accused charged with the contravention of
Section 2(1)(f) of
POCA, i.e. the management of an illegal
enterprise, were acquitted while
accused 1
was
acquitted on all the MLRA charges which he faced in relation to the
operation of a fish processing facility. There were
further
acquittals of some of the accused on individual MLRA and fraud
charges, and these also appear from the record and will
not be
repeated now.
THE
STATE CASE
16.
The State led the evidence of some 32 witnesses, a number of whom
were warned as potential accomplices in terms of Section 204
of the
CPA. In addition, hundreds of documents were admitted into
evidence by agreement, while in respect of others, admissibility
was
placed in issue and it was necessary for the Court to rule thereon.
Those rulings, the adjudication of which took up
a fair amount of
court time, are a matter of record and will not be revisited at this
stage.
17. For purposes of this
judgment, I do not intend traversing the full details of each and
every witness’ testimony.
That evidence too is a matter
of record and much of it has been debated in final argument by the
parties, and considered by the
Court in the process of finalising
this judgment. I shall attempt to encapsulate in this judgment
what we consider to be
the essence of the relevant evidence adduced
by the State and it will be conveyed in a narrative form.
THE
MODUS OPERANDI
OF THE ALLEGED JOINT ENTERPRISE
18.
In relying on POCA, the legal implications whereof I shall discuss in
more detail later, the State has alleged that the accused
were
participants in a “joint enterprise” as defined in that
legislation. I consider that it will be useful at
this stage to
describe the
modus operandi
of the alleged enterprise to provide the background for the
discussion regarding its alleged existence and the participation, if
any, of the accused therein. Much of what I shall describe is
covered in the evidence of the Department of Marine & Coastal
Management (“MCM”) officials adduced by the State.
19.
As I have said earlier, abalone is to be found in the intertidal zone
along the coastline of the waters of the Western Cape,
stretching
from Cape Columbine on the Cape West Coast to Cape Agulhas at the
southern tip of the African continent. It is
customarily prized
off the rocks by a diver, using a flat edge instrument like a
screwdriver or a tyre lever, which is swiftly
and deftly inserted
between the rock and the mollusc before it has an opportunity to
cling fast to the rock. Traditionally
these divers were
recreational sportsmen and women, who were allowed to take from the
sea their daily bag limit, as stipulated
in a permit issued by MCM
and its predecessors. Recreational divers were precluded from
selling their abalone to the public
or to the catering industry.
20.
The commercial abalone industry is strictly controlled by MCM
regulation and permit holders are restricted to the number of
individual units they may remove from the sea at any given time.
Whereas recreational divers were required to use conventional
snorkelling equipment to access their catch, commercial divers are
permitted to use compressed air piped to them from a vessel
on the
surface, so as to be able to spend longer periods of time under
water. However, the use of scuba equipment by any
divers to
fish for abalone is absolutely proscribed.
21.
The MCM evidence describes how over time the legal abalone trade
burgeoned. The prime sites for poaching were in the vicinity
of
Cape Hangklip, which is the eastern promontory to False Bay,
eastwards along the coast from Hangklip to Betty’s Bay and
then
Hawston, which lies between Betty’s Bay and Hermanus and from
Gansbaai, which lies across Walker Bay from Hermanus,
along the coast
through Pearly Beach towards Cape Agulhas. Indeed, Hawston and
Gansbaai have become household names associated
with abalone
smuggling. A casual stroller along the coastline would know,
when coming across a large pile of empty abalone
shells on the rocks
in the areas referred to above, that abalone poachers had most likely
been active in the area.
22.
The MCM evidence demonstrated photographically how individual abalone
divers are customarily accompanied by large groups of
local
residents, some of them armed with semi-automatic firearms, as they
make their way to the sea. The apparent approach
of “safety
in numbers” means that the poachers are invariably able to
outsmart and outnumber the MCM officials, of
whom there are
regrettably very few. High powered semi-inflatable boats are
utilised by the poachers to access more remote
spots, and modern day
electronic location equipment is the order of the day. In the
recent News24 report of 9 August
2017, to which I referred
earlier, it is said that a group of more than 120 people set upon and
raided a mariculture facility near
Danger Point where abalone was
being farmed.
23.
Once retrieved from the sea, the abalone is brought ashore and
shucked on the rocks. This involves the removal of the
abalone
from the shell, by inserting a sharp, decent sized knife between the
foot and the shell and severing the connecting muscle.
The
shucked abalone is then placed in large transparent plastic bags,
which are hidden at prearranged points along the coastline
where they
are later picked up by those responsible for the transportation of
the product. From there the abalone’s
long journey
towards the Orient commences.
24.
The plastic bags are loaded into vehicles for transportation through
to their next point of handling. These vehicles are
said to
often travel in an informal convoy, with outriders on the look-out
for law enforcement officers and others bringing up
the rear.
In this process, cell phones and radio equipment, as well as firearms
and fast cars, are indispensible tools of
the trade. So, for
example, the State witness, David Walter le Roux, himself an admitted
link in this train of unlawful procurement,
described to the Court
how he travelled from Cape Town to Somerset West to collect shipments
of abalone from a temporary storage
facility in the garage of a
private home belonging to one, Michael Winter. Presumably that
abalone had been delivered through
the transportation route just
discussed. Le Roux described how he then drove his bakkie
through to the parking lot of a shopping
centre in Bellville, where
it was parked at a prearranged spot, leaving the ignition keys under
the floor mat or the sun visor.
25.
Le Roux told the Court how, after spending an hour or so in a nearby
coffee shop, he would return to his bakkie, which had in
the interim
been driven off, relieved of its cargo and returned to the parking
area with the keys hidden as before. Le Roux
was at pains to
impress upon the Court the need for secrecy and security during the
entire operation and stressed that he was not
to know who was
responsible for the pick up and return of his vehicle.
26.
The next step in the journey was described in detail by Dawid Jacobus
Botha aka Jaco, another accomplice witness, who fell upon
hard times
up country and travelled down to Cape Town, after a promise of work
was made by a relative in Bellville. He was
given a fairly
lucrative job by a family member, as a driver-cum-general assistant
in an informal, illegal abalone processing facility,
run out of a
double garage at a house effectively rented by accused 4 in Kendal
Road in the suburb of Durbanville. Botha
explained how he would
go out and collect a load of abalone stashed in plastic bags on the
back of a parked bakkie near the public
rose garden in Durbanville.
The bags were dropped off at the Kendal Road property and the bakkie
returned to its original
spot.
27.
Botha described how the abalone was thereafter processed in the
garage. Firstly, it was scrubbed to remove the slime,
colloquially referred to as “
melk
”,
which covered the exterior and then hosed down. Thereafter, the
abalone was put in plastic bags, which were packed
into galvanised
metal trays and placed in large chest type deep freezers, where it
was frozen until solid. The frozen block
of abalone was then
tipped out of the tray and slotted into a cardboard box - A standard
type cardboard ordinarily used for the
export of 10kg packs of
pilchards - the trays having been custom made so as to allow the
frozen contents to fit snugly into the
10kg boxes. When a
sufficient number of boxes of frozen abalone had been packed, the
cargo was loaded on to a one ton Nissan
Hardbody bakkie and
transported through to a cold store facility, initially in Maitland
and later in Brackenfell Industria, where
it was temporarily housed.
28.
From Maitland, and later Brackenfell Industria, said Botha the boxes
were taken through to a large commercial cold store facility
in Cape
Town Harbour, where they were delivered to a company known as V&A
Cold Storage. For the sake of convenience,
I shall refer
hereafter simply to this facility as V&A. On arrival at
V&A, the boxes of abalone, bearing a stamp
marked “BAIT”,
were palletised, i.e. they were loaded on to a wooden pallet and
partially concealed by 10kg boxes of
genuine pilchards, before being
enclosed with plastic wrap. For transport from the temporary holding
facility at Maitland to V&A,
use was made of a larger vehicle,
described as a 1.3 ton Kia, which Botha collected from commercial
premises in the light industrial
area north of Cape Town known as
Montague Gardens.
29.
Certain loads arrived at the V&A palletised, while those that
were not, were palletised on the loading bay outside the cold
store,
given that the cold store refused to accept product that was not
palletised. After the temperature had been checked
by V&A’s
quality control officer, using a probe, the pallets were then booked
into the V&A facility, often with the
assistance of accused 8,
Desmond Pienaar, with each pallet being individually tagged by
staff from the cold storage facility,
using a computer generated
bar-coded adhesive label. Thereafter the pallets were stored in
one of the large freezer rooms
operated by V&A. The pallets
could be readily located by the staff of V&A at any stage after
storage, by virtue of
a computerised system, which recorded the
details on the bar-coded label and which reflected, through a
numbering system, exactly
where in the cold store the product had
been stored. So at any given time, the person for whom the
product had been stored
could arrive at V&A and ask for a pallet
marked, say XYZ 123 to be retried from the store and made
available for onward
transmission to its destination, for example, in
a refrigerated ocean container, on a container vessel.
30.
Before the frozen abalone could be so exported by sea, it had to be
inspected by officials from a government agency known as
the
Perishable Products Export Control Board (“PPECB”).
These officials were required to ensure the integrity
of the
container and the product from a freezing point of view and ensure
its suitability for export generally. It was said
that any
product that was not adequately frozen below minus 12C could not be
loaded into the container for export. In addition,
documentation had to be completed for transfer of the product from
the cold store to the quayside and the eventual loading thereof
on
board the relevant container vessel bound for the East.
31.
To that end, a pre-cooled refrigerated container was taken by truck
to V&A, where the frozen pallets were retrieved from
the cold
store and loaded into the container. To ensure that the abalone
was not located near the doors of the container,
where it might have
been seen by the PPECB inspector, the pallets containing mixed boxes
of abalone and pilchards, were loaded
first into the container, and
then only so as to partially fill the container. The remainder
of the container was then filled
up with pallets containing boxes of
various fish products, but generally 10kg boxes of pilchards.
These boxes of pilchards
were used so as to “plug up the gaps”,
so that if the doors of the container were opened by the PPECB
inspector, or
any law enforcement official, they would encounter only
boxes of frozen pilchards.
32.
Once the container had been filled, it was transported to the
container basin in the Cape Town docks by road, from where it
was
kept in what is known as a stack, until the necessary documentation
had been obtained, after which it was loaded on board the
designated
vessel for transhipment, primarily to Hong Kong. The
documentation consisted of bills of entry/export and bills
of lading,
which were drawn up by a local freight agent and which always
reflected the cargo as frozen pilchards. Upon delivery
of the
container at its final destination, payment was supposed to have been
made in South Africa by the consignee for a cargo
of pilchards, which
payment would have been significantly less than the value of the
actual cargo of abalone. We do not know
as a fact whether such
payments were ever made.
33.
The court was told, and shown photographs, of the abundance of
abalone on sale in shops in Hong Kong and it was said that the
South
African product was amongst the most sought after in Hong Kong,
selling for as much as US$3000 per kilo in 2006. From
that
which I have described, it can be concluded that the illegal export
of abalone from South Africa to foreign shores, presents
major
business opportunities for local operators generating vast amounts of
income which do not attract VAT or income tax.
34. Against that general backdrop, it
can be seen that the process of procuring abalone illegally,
processing it at an illegal FPE,
packing and storing it in a safe
cold store facility, loading it on board a vessel for transhipment
overseas, and the diversion
of the proceeds of sale thereof from the
tentacles of the revenue authorities,
prima facie
fits what
the State says constituted “a pattern of racketeering activity”
by an “enterprise”, as defined
in POCA and later
discussed in this judgment. But before considering the POCA
charges, I intend to deal with the various
police raids in which some
of the accused were arrested and which exposed the abalone supply
chains, which the State claims constituted
the unlawful enterprise as
contemplated under POCA.
THE
FOXHOLE FARM RAID - 8 FEBRUARY 2006
35.
Acting on a tip-off, a contingent of police offices, under the
command of Captain Lodewyk Brink, visited an agricultural holding
known as Foxhole Farm, near Koelenhof in the district of
Stellenbosch, on the afternoon of 8 February 2006. The police
officers
were all then attached to the police’s erstwhile
Organised Crime Unit, stationed at Kasselsvlei Road in Bellville
South.
It appears that after restructuring, this unit later
became known as the Directorate of Priority Crimes and is now
commonly referred
to as The Hawks. Brink told the Court that at
the time he had extensive experience in the investigation of abalone
related
cases, and he had been asked by his colleague, Warrant
Officer André Potgieter, the investigating officer in this
matter,
to assist with the raid. To avoid confusion, I shall
hereafter refer to Warrant Officer Potgieter simply as Potgieter and
to his senior colleague, Lieutenant Colonel Lisa Potgieter, as
Lieutenant Colonel Potgieter.
36.
At Foxhole Farm, said Potgieter, the police focused their attention
on a free-standing cottage, some 150 metres away from the
main
farmhouse. On his arrival, he found the cottage unoccupied and
noticed that the curtains were drawn. He peered
through one of
the windows and saw that there were a number of large chest type deep
freezers inside. Prior experience would
have informed him that
this was the hallmark of an abalone storage facility. From
information obtained by Potgieter, Brink
was sent to intercept the
lessee of the building and arrest him, which he later did.
Suspecting that there may be people
coming to the house, the police
stood off and took up a position on a hill behind the cottage.
At that vantage point, the
cottage itself was obscured from their
vision.
37.
Brink, who had returned to the stake-out, said that towards sunset,
he saw a silver Toyota Condor vehicle, (a smaller
type of
minibus) with registration number MLN 644 GP, being driven away
from the cottage. He checked its registration
number on the
police system and found it belonged to somebody called Wei Liu Liu.
This accorded with information already
at his disposal, that Liu was
the lessee of the cottage. The vehicle was stopped by the
police, who found two men in it.
Brink said the driver was
accused 3, Gavin Wildschutt, but that he was uncertain of the name of
his passenger. Upon inquiry
as to his intentions, number 3 told
Brink that he was at the farm to meet a Chinese friend to collect
study notes from him, but
he did not elaborate on the extent of his
Oriental studies. Brink noticed that the rear seat of the
Condor had been removed.
This, he said, was often the
configuration of such vehicles, so as to enhance their packing space
for the transportation of goods
such as abalone.
38.
The police requested the two men to accompany them to the cottage
which was then searched. In so doing, the police surprised
two
other men, who were busy packing cleaned abalone into silver
galvanised trays for storage in the freezers. After a thorough
search of the premises, the police seized 5050 units of abalone and
arrested accused 3, together with Messrs Jerry Witbooi, Jerome
Browne
and Ashley Browne, and a case was registered at the Stellenbosch
Police Station. Brink observed that shortly after
their arrival
at the Stellenbosch Police Station, an attorney by name of Wynand du
Plessis arrived to represent the persons who
had been arrested at
Foxhole Farm. Mr Du Plessis was well known to Brink, having
formerly been a police officer in the selfsame
unit.
39.
When those arrested at Stellenbosch appeared before the Regional
Court sitting in Hermanus on 28 April 2006, accused 3, together
with
his co-accused in that matter, negotiated a plea bargain with the
State in terms of Section 105A of the CPA. The State
produced a
certified copy of the charge sheet in that matter, which records
that,
inter alia
,
accused 3, in that matter cited as accused 5, pleaded guilty to two
charges, namely operating a fish processing establishment
in
contravention of Section 18(1) of the MLRA and possession of abalone
for commercial purposes in contravention of Regulation
39(1)(a), both
counts similar to those with which the accused has been charged
herein. The charges were taken together for
purposes of
sentence and number 3 was sentenced to a fine of R40 000,00 or
in default of payment, 18 months imprisonment.
40. A series of contemporaneous
photographs taken during the Foxhole Farm raid, revealed in graphic
detail to the Court what was
taking place inside the cottage.
One sees plastic bags of abalone, shucked but not yet cleaned, a
number of metal pans for
freezing, chest freezers and cardboard boxes
marked “pilchards” for packaging and distribution.
There can be
little doubt that this was a fish processing facility,
handling the processing of large quantities of abalone, hence accused
3’s
guilty plea in the Regional Court.
THE
BELLVILLE RAIDS - 19 JUNE 2006
41.
At about midday on 19 June 2006, members of the Organised Crime Unit,
once again acting on a tip-off, raided two premises in
the greater
Bellville area. One was a commercial yard at 49 Hercules
Street, Bellville South and the other a private residence
at 15
Faraday Street, Belhar. Fortuitously, the yard in
Hercules Street is just a couple of streets away from the Bellville
South Police Station and the erstwhile offices of the Organised Crime
Unit. Hercules Street runs parallel with Kasselsvlei
Road two
streets to the north of it. The yard was leased by Adam
Wildschutt, the uncle of accused 3 and was ostensibly used
for the
storage of firewood and a variety of decrepit transport vehicles.
42.
Potgieter testified that he had received information regarding a
white Toyota bakkie which was expected to deliver abalone to
the
premises in Hercules Street. He kept those premises under
surveillance, assisted by his colleagues Brink, Xolile Machaba
aka
Shakes and Lieutenant Colonel Potgieter, who is no relation.
Potgieter explained that he saw the white Toyota entering
the yard,
where it remained for some time. When it emerged from the yard,
it was apparent that the vehicle was heavily loaded.
Lieutenant
Colonel (then Captain) Potgieter and Brink, the latter in his own
vehicle, followed the white Toyota bakkie with registration
number CY
191083, to a house in Belhar, a residential area, a couple of
kilometres to the south of Hercules Street. Machaba
and
Potgieter remained behind with another colleague, and continued
surveillance of the yard.
43.
Brink explained to the Court how the white Toyota reversed into the
driveway of the house at number 15 Faraday Street and stopped
with
its tailgate facing a tip-up garage door which was open. The
police swooped on the premises and discovered a large quantity
of
fresh, shucked abalone in plastic bags, stashed under a piece of old
carpeting on the back of the white Toyota, which was fitted
with a
canopy. There was also a light blue Toyota bakkie parked in the
driveway between the white Toyota and the garage door.
This
vehicle also had a canopy on the rear and was found to contain boxes
of frozen abalone marked with the word “Bait”.
44.
In the garage the police found a number of chest freezers, steel
trays, (some empty and others containing frozen abalone), and
cardboard boxes into which the frozen abalone slabs could fit.
On the outside these boxes also carried the word “Bait”,
which had evidently been printed there with a rubber stamp.
Potgieter said that the abalone processing operation was in full
production when the police arrived at Faraday Street. Connected
to the garage, via an interleading door, was a bedroom in
which items
such as plastic crates and piles of cardboard, yet to be folded into
boxes, were found. All of this was photographically
recorded
and upon perusal of Exhibit C, there can be little doubt that a fish
processing facility, as defined, was being operated
at the Faraday
Street premises.
45.
A number of people were arrested at the house, including Lydia
Wildschutt, the wife of Adam Wildschutt, Jerry Witbooi, Jerome
Browne
and Ashley Browne. Potgieter, having arrived from Hercules
Street, then took over the scene. Adam Wildschutt,
himself, was
arrested at the Hercules Street yard a little later. Both Adam
and Lydia Wildschutt immediately offered their
assistance to the
police and through the intercession of their legal representative, a
certain Mr José, both subsequently
furnished the police with
affidavits, implicating accused 3, their nephew, as the person in
charge of the FPE operation being conducted
at their house.
46.
Potgieter testified that he returned to Hercules Street, where he and
Machaba entered the premises for the purposes of conducting
a
search. In one corner of the yard, the police came across a
wooden lean-to shed, in which an assortment of freezers was
found,
some containing frozen abalone still in bags. There was a large
quantity of fresh, shucked abalone in clear plastic
bags, as also an
industrial size scale and several large 19kg gas bottles, of the sort
associated with restaurants/commercial premises.
Also under the
lean-to were several 50kg bags of coarse salt. Potgieter
explained that as an experienced investigator in
abalone matters, he
was aware that salt was often used in the processing of dried
abalone.
47.
Potgieter said that 10788 units of abalone were found at Hercules
Street and a further 1114 units at Faraday Street. Included
in
this number were 41 units of dried abalone. There was no
obvious drying facility at Faraday Street and the relevance of
this
discovery will emerge later. Accused 6, Rodney Onkruid, was
arrested at the yard in Hercules Street, along with a number
of
others. The suspects arrested at both scenes, were amongst
those who tendered guilty pleas during the initial phase of
the
prosecution before Erasmus, J.
48.
In the middle of the yard, opposite the entrance from Hercules
Street, the police found a large blue shipping container mounted
on
the back of a rusty old Mercedes Benz truck, which can be seen on a
number of the photographs relating to that scene.
Emblazoned on
either side of the container were the words “KIEN HUNG”,
evidently the name of some Oriental shipping
business. When the
doors of the container were opened, the police discovered several
items of interest inside. These
included blue metal drums of
sodium hydrosulphate which Lieutenant Colonel Potgieter later told
the Court was a chemical used in
the drying of abalone. There
wa also a variety of unmade cardboard boxes, several plastic dishes,
gas bottles and shelving
made from steel mesh. Potgieter told
the Court that this was the sort of apparatus usually associated with
the drying of
abalone. All of the items of relevance found at
the yard and in the container, were photographed and are included in
Exhibit C.
49. The number plate on the rear of
the Mercedes Benz truck, read NDB 811 GP. Potgieter searched
the cab of the truck and
found,
inter alia
, a cross-border
transport permit in the name of a certain Bertie Basson. He
followed up the number plate and traced the vehicle
to the ownership
of Mr M Chuang. The accused later admitted this
ownership, as well as the fact that Chuang left
South Africa on 21
June 2006. Potgieter said he was able to trace Basson in
Johannesburg at the time and established from
information conveyed to
him by Basson, and later Lieutenant Colonel Potgieter, that the
truck had crossed the border from
South Africa to Namibia and back on
12 and 14 April 2006 respectively.
THE
RAWSONVILLE RAID - 19 AND 20 JUNE 2006
50.
During the course of the Bellville raids, the police received
information about a suspected abalone processing facility on a
farm
near Rawsonville in the Boland. Rawsonville is a farming town,
which nestles amongst vineyards not far from Worcester
and is about
an hour’s drive along the N1 from Cape Town. Lieutenant
Colonel Potgieter was tasked with co-ordinating
a raid on those
premises. She travelled through to Rawsonville the same evening
and arranged for a search warrant for the
premises in question, (a
farm serendipitously called “Volmoed”), with the local
police chief. She and her colleagues
then proceeded to a
cottage on the farm, which was a short distance from the main house,
in which Ms Hester Mouton, an elderly
widow in her 70’s,
then resided.
51.
It was immediately apparent to the police that the cottage was being
used for the processing of fresh abalone, in this case
by drying it.
The police found a large number of steel drying racks on the premises
and seized 24672 units of dried abalone.
Also on the premises
they found basic industrial cooking equipment, suggesting that the
abalone had been boiled in large containers
before being put on the
steel racks to dry. Lieutenant Colonel Potgieter told the Court
that they found no one in the house
while conducting their search,
but as they were in the process of concluding their search, the
police heard a noise in the roof
and were suddenly confronted by two
men, who fell through the ceiling and landed on the floor. It
later transpired that they
were illegal immigrants of Mozambican
extraction, who were later repatriated to their country of origin.
Although the police
seized a large quantity of abalone at these
premises, none of the accused before Court was arrested at Volmoed.
52.
Potgieter also participated in the Rawsonville raid, and during his
search of the premises, he came upon a large industrial
type scale,
as well as a smaller domestic scale. He found the packaging
pertaining to the latter and was also handed a Clicks
Stores till
slip by a colleague participating in the raid, Captain Carstens,
which reflected that the domestic scale had been purchased
from a
branch of that store in Dainfern, Gauteng. The till slip
contained a reference to a Clicks loyalty card and through
some smart
detective work, Potgieter was able to link that number to Wei Liu
Liu, the owner of the Toyota Condor, which was seized
during the
Stellenbosch raid.
53. In a subsequent interview with Ms
Mouton, Potgieter established that a written agreement of lease had
been drawn up in respect
of the cottage on Volmoed by attorneys in
the Strand, in which the lessee was recorded as one Steven McDonald.
The lessee
recorded his ID number as […] and his address as
c/o Kellogg’s Consumer Affairs at Springs in Gauteng.
Further
investigation revealed that payment of the monthly rental in
respect of the cottage for the months of March to May 2006 had been
made by way of a cash deposit into Ms Mouton’s bank account,
with the signature of the depositing party being recorded as
“M
Wildschutt”. According to Potgieter, accused 3’s
wife is Merilyn Wildschutt, a fact which later appeared
to be common
cause. The deposit made on 29 March 2006 recorded Kellogg’s as
the depositors name, while on the other deposit
slips, the name is
left blank.
THE
V&A COLD STORAGE RAID - 19 SEPTEMBER 2006
54.
During the early hours of Tuesday, 19 September 2006, the police,
again acting on information and having obtained a search warrant,
conducted a raid at the premises of the V&A Cold Storage facility
in Cape Town Harbour. As already indicated, this was
a large
commercial cold storage facility, at which any number of a variety of
products were stored for private clients prior to
transhipment
elsewhere. Of interest to the police were a number of pallets
containing pilchards that had been stored at V&A
by two companies
known to them as Syroun Exports (Pty) Limited and Rapitrade 109 (Pty)
Limited. These will henceforth be
referred to as “Syroun”
and “Rapitrade”.
55.
Certain of the pallets in question were retrieved from the cold rooms
in which they had been stored and inspected by the police
in the
presence of certain of the staff members of V&A, including
accused 9, Gregory Abrahams, the erstwhile cold store manager.
These pallets were found to contain boxes of pilchards and
abalone, packed in a very specific manner, with the abalone at
the
bottom and the pilchards on top. The boxes were similar in
colour and size and were all stamped with the word “Bait”.
It was established that the pilchards had been stored by Rapitrade
and Syroun. In addition there was also a pallet stored
by
Aqualina. It later emerged in the evidence that “Bait”
was synonymous with pilchards and that Aqualina was
a company
controlled by a certain Salvin Africa personally. Arrangements
were made for the seized items to be transported
to the cold storage
facility, operated by MCM in Paarden Eiland, where they were fully
examined, counted and inventorised.
The V&A raid on 19
September 2006 uncovered 82 749 units of abalone. Of this
number, 64 435 units were frozen and
8 014 units were dried
abalone.
56.
As a consequence of the V&A raid, Salvin Africa was arrested at
his home in the Cape Town suburb of Heathfield on the same
day.
He was said to be the person in charge of Syroun and Rapitrade for
whom the product at V&A had been stored.
During a search
and seizure operation conducted at the time of Africa’s arrest,
the police took possession of a large quantity
of documents and a
number of cell phone handsets which had been found in his house.
57.
Africa and his wife, Anthea, co-operated with the police and the two
of them went into police protection almost immediately
after his
release on bail. As a consequence thereof, the police were able
to obtain firsthand knowledge of the way in which
the exporting arm
of the alleged enterprise operated and, in particular, they were able
to review a welter of documentation relating
to the export activities
of Syroun and Rapitrade, companies in respect whereof Africa was
registered as the sole shareholder and
director.
58.
The police investigation revealed that at the time there were at
least four containers on the high seas destined for Hong Kong.
The authorities were able to head off the containers as the vessel
transporting them passed through the port of Singapore and the
containers were eventually returned to South Africa, where they
arrived in October 2006 and were inspected by the police and
officials
from MCM.
59.
This inspection revealed that the containers contained a large number
of pallets containing just pilchards and a smaller number
of pallets
containing a combination of pilchards and abalone, the latter being
packed in similar fashion to those which the police
had found at V&A
earlier. They also noted that the container was packed in the
manner already described, with the pallets
containing abalone, having
been loaded first, and the pallets with only pilchards bringing up
the rear, as it were. The prohibited
contents of these
containers were also stored at the MCM facility and when counted, it
was found that there were 145 632 units
of abalone, weighing
some 38 712 kilograms, that is, in excess of 38 tons.
60. Whilst on bail, Africa agreed to
co-operate with the police on condition that he was granted immunity
from prosecution.
His disclosure to the police no doubt enabled
them to further their investigation in regard to the activities of
this particular
smuggling certificate, and it would seem that there
were further arrests as a consequence of this co-operation. At
the end
of the day, the State presented the evidence of Africa, who
was duly warned in terms of Section 204 of the CPA, as its primary
accomplice witness.
THE
DURBANVILLE RAID - 6 OCTOBER 2006
61.
On 6 October 2006, the police swooped on residential premises located
at 33 Kendal Road, Durbanville which, by outward appearance,
was an
ordinary suburban house in a quiet neighbourhood in the Northern
suburbs of the Cape Peninsula. In a double garage adjoining
the
house, they came upon an abalone processing facility in full
operation. Units abalone were being cleaned, packed in galvanised
metal trays and then slid into 10kg cartons, similar to those found
at Foxhole Farm, Faraday Street and V&A Cold Storage. In
total
1 706 units of abalone were seized on that day.
62. A number of people were arrested
at Kendal Road, a property which it subsequently transpired, had been
leased in the name of
accused 4’s daughter, Michelle, and his
uncle, Daniel du Toit aka Oom Des. Some of those who were
arrested at Kendal
Road, gave evidence on behalf of the State, having
been warned in terms of Section 204 of the CPA. Principal among
these,
was Jaco Botha, who explained the workings of the operation to
the Court in detail. The other witnesses were Percy Clack and
Harold Bauchop, both of whom worked at the facility and were
similarly warned in terms of Section 204.
THE
BRACKENFELL INDUSTRIA RAID - 6 OCTOBER 2006
63.
In the course of the Durbanville raid, the police received
information which led them to the premises of A&T Air
Conditioning
in Brackenfell Industria near Kraaifontein. There
an ice-making business was being conducted by one Andrew Theunissen
aka
AJ. The business incorporated a number of large portable
freezer rooms which were rented out to clients for self-storage of
their product. According to Theunissen, one such storage room
was used by Jaco Botha and a person he called Koos, (and who
Theunissen later pointed out in court as accused 5, Johannes Emil
Liebenberg), who stored, what Theunissen was led to believe,
to be,
fish contained in large Styrofoam boxes. Upon arrival at these
premises, the police searched the storage facilities
and came across
1 969 units of abalone stored in Styrofoam boxes. They are
depicted on certain of the photographs contained
in Exhibit J.
64.
Subsequent to the Durbanville and Brackenfell raids, the police
obtained warrants for the arrest of,
inter
alia
, accused 1, 2, 3, 4, 5 and
7, as also Richard Chao and Jerry Ku. Accused 1, Phillip
Miller, was arrested on 14 November
2006 at the smallholding on which
he then resided near Paarl. Accused 2, Willem van Rensburg,
handed himself over to the
police at Bellville South on 14 November
2006 by prior arrangement with his attorney, as did accused 4, Tony
du Toit and accused
5, Johannes Liebenberg aka Koos, on 14 November
2006. Accused 8 was arrested on 22 September 2006 at Bellville
South
Police Station and number 9 on 14 November 2006.
Both of them were employed in management positions at V&A at the
time of the September raid.
65. During the course of their ongoing
investigations in 2006, the police had noticed a pattern of criminal
conduct in relation
to the export of abalone and sought permission
from their superiors for the registration of a special project for
investigation.
This was subsequently approved after an internal
administrative process and dubbed “
Operation Mask
”
in recognition of the manner in which the exports were concealed in
containers through the use of vast quantities of pilchards.
THE
POCA CHARGES AND THE UNLAWFUL ENTERPRISE
66. The provisions of Section 2(1)(e)
of POCA, the remaining offence under that Act with which all of the
accused are charged, are
to the following effect:
“
2.
Offences:
(1) Any person who-
....(e) whilst
managing or employed by or associated with any
enterprise
,
conducts or participates in the conduct, directly or indirectly, of
such enterprise’s affairs, through
a
pattern of racketeering activity
…
within the Republic
or elsewhere, shall be guilty of an offence.”
67. In Section 1 of POCA, one find the
following definitions which are relevant to the offences created in
Section 2:
“
enterprise
”
includes any individual, partnership, corporation, association or
other juristic person or legal entity, and any union or
group of
individuals associated in fact, although not a juristic person or
legal entity; and
“
pattern
of racketeering activity
” means
the planned, ongoing, continuous or repeated participation or
involvement in any offence referred to in Schedule 1,
and it includes
at least two offences referred to in Schedule 1, of which
one of the offences occurred after the commencement
of this Act, and
the last offence occurred within 10 years (excluding any period of
imprisonment) after the admission of such prior
offence referred to
in Schedule 1.”
68.
As part of its opening address in terms of Section 150(1) of the CPA
, the State placed before the Court an organogram depicting
what it
alleged to be the structure of the unlawful enterprise which fell
foul of the provisions of POCA. The structure reflects
Richard
Chao, Salvin Africa and
accused 1
, Phillip
Miller, as a triumvirate heading up the enterprise. Beneath
that it showed two distinct lines of supply of product
to the
enterprise. On the one hand there is the Rapitrade line, which
is said to have been managed by accused 2, 4 and 5
in contravention
of Section 2(1)(f) of POCA, and on the other hand there is the Syroun
line, which was said to have been similarly
managed by accused 3 and
Ku. Accused 6 is said to have been an employee/associate in the
Syroun line, while Jaco Botha and
others were employees/associates in
the Rapitrade line. The function of accused 8 and 9 as
employees of V&A at
the port of exit of the shipments of abalone,
is reflected as auxiliary to both lines.
69.
In the ruling on the Section 174 application we found that Richard
Chao was obviously the manager of the enterprise and that
none of
accused 1 to 5 could have been found to have managed the enterprise
in the sense in which that verb has been interpreted
by our courts.
(See
S v De Vries
2009 (1) SACR 613
(C) at [388]). We found also that it did not
appear to be in issue at that stage of the proceedings, that an
enterprise as
defined in Section 1 of POCA had been conducted during
the period 2005 to 2006.
70.
This fact was later confirmed when accused 4 took the witness stand
and described his working relationship with Chao and Africa.
The import of his evidence was that Chao was in effective control of
the enterprise, whose principal business it was to export
abalone
overseas. In light of accused 4’s defence that he
believed his activities at all times to have been conducted
lawfully,
the existence of the enterprise as such was not seriously challenged
in final argument by Advocate Uijs. Nor did
we understand any
of the other counsel to take issue therewith. I shall return to
this issue later in the judgment.
71.
Having regard to the totality of the evidence adduced by the State,
as also the testimony of accused 4 and his frank concessions
under
cross-examination, we are satisfied that the State has proved beyond
reasonable doubt the existence of the enterprise contended
for.
What really is in issue in this matter, is whether the State has
established the involvement of
accused 1
,
2, 3, 5 and 6 therein, and in the case of accused 4, whether his
involvement was lawful as he claimed it to be. As regards
accused 8 and 9, the issue is whether they directly or indirectly
participated in the activities of the enterprise through the
control
of the product when it was stored at V&A. It further falls
to be determined whether the State has proved that
accused 8 and 9
knew that the enterprise’s activities were unlawful (i.e. that
it was storing abalone and not pilchards)
and whether they
accordingly, knowingly participated in such activities.
72. I shall revert to a discussion of
the import of the POCA charges later in this judgment, but firstly
some foundational principles
in relation to the evaluation of the
evidence need to be discussed.
THE GENERAL PRINCIPLES
APPLICABLE TO
CONSIDERATION
OF THE EVIDENCE
73. It is trite that the State bears
the onus to establish the guilt of each of the accused beyond
reasonable doubt. This does not
mean beyond
any
doubt, but on
the other hand if any of the accused puts up a defence which is found
to be reasonably possibly true in the circumstances,
he is entitled
to be acquitted. (I shall hereinafter refer to all pronouns in the
masculine, given that the accused are all male.)
The approach was
usefully summarised in
S v van der Meyden
1999(1) SACR 447 (W)
at 449j - 450b:
“
The proper
test is that the accused is bound to be convicted if the evidence
establishes his guilt beyond reasonable doubt and the
logical
corollary is that he must be acquitted if it is reasonably possible
that he might be innocent. The process of reasoning
which is
appropriate to the application of that test in any particular case,
will depend on the nature of the evidence which the
court has before
it. What must be borne in mind, however, is that the conclusion
which is reached, whether it be to convict
or to acquit, must account
for all of the evidence. Some of the evidence might found to be
false, some of it might found
to be unreliable and some of it might
be found to be only possibly false or unreliable, but none of it may
simply be ignored.”
74.
The State has adduced direct evidence against some of the accused,
which it says conclusively establishes guilt and it has also
adduced
facts from which it has asked the Court to infer an accused’s
guilt. In applying inferential reasoning the
Court is required
to have regard to the cumulative effect of all the evidence. It
is not permissible to take the evidence
piece by piece, evaluate it
in isolation and accept or reject it. In
R v De
Villiers
1944 AD 493
at 508, the
Appellate Division suggested the following approach:
“
The court
must not take each circumstance separately and give the accused the
benefit of any reasonable doubt as to the inference
to be drawn from
each one so taken. It must carefully weigh the cumulative
effect of all of them together, and it is only
after it has done so,
that the accused is entitled to the benefit of any reasonable doubt
which it may have.”
75. One must be careful not to confuse
inference with assumption. In
S v Naik
1969(2) SA 231
(N) at 234, the court followed an earlier
dictum
in the House
of Lords in England (
Caswell v Duffryn Associated Collierires Ltd
[1939] 3 ALL ER 722
at 733) which cautioned as follows:
“
Inference
must be carefully distinguished from conjecture or speculation.
There can be no inference unless there are objective
facts from which
to infer the other facts which it is sought to establish… But
if there are no positive proved facts from
which the inference can be
made, the method of inference fails and what is left, is mere
speculation or conjecture.”
76.
As mentioned earlier in this judgment, the State has relied heavily
on the evidence of accomplice witnesses, who have been cautioned
in
terms of Section 204 of the CPA. The mere fact that those
witnesses are accomplices, irrespective of their veracity and
demeanour in the witness box, requires the Court to approach the
evidence with caution. As persons who face prosecution unless
they “answer...frankly and honestly all questions put to
...[them]”, they may be inclined to falsely implicate others
in
the plot, merely to diminish their own culpability. It is,
therefore, important to look where possible for corroboration
of the
evidence of such witnesses. See
S v Hlapezula
& Others
1965(4) SA 439 (A) at
440D-H;
S v Sauls &
Others
1981(3) SA 172 (A) at
180E-G.
77. In his final argument, Mr Uijs,
SC, urged the Court to approach the evidence of Africa in particular
with the utmost of caution,
since, as counsel put it, Africa was
required to “sing for his supper”, i.e. his immunity from
prosecution is contingent
upon him implicating those before the Court
in the offences with which they are charged. The correct
approach in such circumstances
was set out in
S v Masuku &
Another
1969 (2) SA 375
(N) at 376H-377D:
(1) Caution in dealing with the
evidence of an accomplice is imperative, even where the requirements
of Section 257 [of the former
CPA] have been satisfied.
(2) An accomplice is a witness with a
possible motive to tell lies about innocent accused, for example, to
shield some other
person or to establish immunity for himself.
(3) Corroboration not implicating the
accused, but merely in regard to the details of the crime, not
implicating the accused, is
not conclusive of the truthfulness of the
accomplice. The very fact of his being an accomplice enables
him to furnish the
court with details of the crime, which is apt to
give the court the impression that he is, in all respects, a
satisfactory
witness or has been described “to convince the
unwary that his lies are the truth”.
(4) Accordingly, to satisfy the
cautionary rule if corroboration is sought, it must be corroboration
directly implicating the accused
in the commission of the offence.
(5) Such corroboration may, however,
be found in the evidence of another accomplice, provided that the
latter is a reliable witness.
(6) Where there is no such
corroboration, there must be some other assurance that the evidence
of the accomplice is reliable.
(7) That assurance may be found where
the accused is a lying witness or where does he not give evidence.
(8) The risk of false incrimination
will also, I think, be reduced in a proper case where the
accomplice is a friend of the
accused.
(9) In the absence of any of the
afore-mentioned features, it is competent for the court to
convict on the evidence of an
accomplice only where the court
understands the peculiar danger inherent in an accomplice’s
evidence and appreciates that
acceptance of the accomplice and
rejection of the accused, is only permissible where the merits of the
accomplice as a witness,
and the merits of the accused as a witness,
are beyond question.
(10) Where the corroboration of
an accomplice is offered by the evidence of another accomplice, the
latter remains an accomplice
and the court is not relieved of its
duty to examine his evidence also with caution. He, like the
other accomplice, still
has a possible motive to tell lies. He,
like the other accomplice, because he is an accomplice, is in a
position to furnish
the court with details of the crime, which is apt
to give the court, if unwary, the impression that he is a
satisfactory
witness in all respects.”
This
dictum was confirmed by the Full Bench in that division in
S
v Van Vreden
1969(2) SA 524 (N) at
531H-532F and accords with the approach in,
inter
alia
,
Hlapezula
.
78. Finally, in regard to the
assessment of the evidence, the Supreme Court of Appeal in
S v
Hadebe & Others
1998(1) SACR 422 (SCA) at 426e-I, cited with
approval the decision of the Lesotho Appeal Court in
Moshephi &
Others v R
(1980-1984) LAC 57
at 59F-H, in which an overall
evaluation of the sum total of the evidence was required:
“
The question
for determination is whether, in the light of the evidence adduced at
the trial, the guilt of the appellants was established
beyond
reasonable doubt. The breaking down of a body of evidence into
its component parts, is obviously a useful aid to a
proper
understanding and evaluation of it, but in doing so, one must guard
against a tendency to focus too intently upon the separate
and
individual parts of what is, after all, a mosaic of proof.
Doubts about one aspect of the evidence led in a trial, may
arise
when that aspect is viewed in isolation. Those doubts may be
set at rest when it is evaluated again, together with
all the other
available evidence. That is not to say that a broad and
indulgent approach is appropriate when evaluating evidence.
Far
from it. There is no substitute for a detailed and critical
examination of each and every component in a body of evidence,
but
once that has been done, it is necessary to step back a pace and
consider the mosaic as a whole. If that is not done,
one may
fail to see the wood for the trees.”
THE
FAILURE BY AN ACCUSED TO TESTIFY AND THE FAILURE TO CROSS-EXAMINE
79.
Finally, it is necessary to refer to two important principles
relating to the manner in which the accused conducted their defences,
which may have potentially negative consequences for them. The
first is the failure to testify.
80. An accused person has a
constitutional right under Section 35(3)(h) to remain silent in
criminal proceedings. This means
that there is neither a duty
to testify nor may an accused be compelled to take the witness
stand. However, that right, when
exercised, is not free of
consequences. In
S v Boesak
2001(1) SA 912 (CC) at
paragraph 24, the Constitutional Court cautioned as follows:
“
The fact
that an accused person is under no obligation to testify, does not
mean that there are no consequences attaching to a decision
to remain
silent during the trial. If there is evidence calling for an
answer, and an accused person chooses to remain silent
in the face of
such evidence, a court may well be entitled to conclude that the
evidence is sufficient, in the absent of an explanation,
to prove the
guilt of the accused. Whether such a conclusion is justified
will depend on the weight of the evidence.
What is stated above
is consistent with the remarks of Madala, J, writing for the court in
Osman & Another v Attorney-General
Transvaal
, when he said the following:
‘
Our legal
system is an adversarial one. Once the prosecution has produced
evidence sufficient to establish a
prima
facie
case, an accused who fails to
produce evidence to rebut that case is at risk. The failure to
testify does not relieve the
prosecution of its duty to prove guilt
beyond reasonable doubt. An accused, however, always runs the
risk that absent any
rebuttal, the prosecution’s case may be
sufficient to prove the elements of the offence. The fact that
an accused has
to make such an election is not a breach of the right
to silence. If the right to silence were to be so interpreted
it would
destroy the fundamental nature of our adversarial system of
criminal justice.’”
81. A second issue which must be
considered in the evaluation of the evidence, is the failure of an
accused to challenge by way
of cross-examination evidence presented
by the State or one of the other accused. In
President of
the Republic of South Africa & Others v South African Rugby
Football Union & Others
2000(1) SA 1 (CC) (a case usually
referred to as “
SARFU
”), the Constitutional Court
stressed the importance of this duty and the consequences of the
failure to observe it:
“
[61] The
institution of cross-examination, not only constitutes a right, it
also imposes certain obligations. As a general rule
it is essential
when it is intended to suggest that a witness is not speaking the
truth on a particular point, to direct the witness’
attention
to the fact by questions put in cross-examination, showing that the
imputation is intended to be made and to afford the
witness an
opportunity, while still in the witness box, of giving any
explanation open to the witness and of defending his or her
character. If a point in dispute is left unchallenged in
cross-examination, the party calling the witness is entitled to
assume
that the unchallenged witness’ testimony is accepted as
correct. This rule was enunciated by the House of Lords in
Brown
v Dunne
and has been adopted and
consistently followed by our courts…
[63] The precise nature of the
imputation should be made clear to the witness, so that it can be met
and destroyed, particularly
where the imputation relies upon
inferences to be drawn from other evidence in the proceedings. It
should also be made clear not
only that the evidence
is
to be
challenged, but also
how
it is to be challenged. This is
so, because the witness must be given an opportunity to deny the
challenge, to call corroborative
evidence, to qualify the evidence
given by the witnesses or others, and to explain
contradictions on which reliance is to
be placed.”
(Emphasis added).
AN
OVERVIEW OF THE EVIDENCE OF SALVIN AFRICA
82.
It is in our view appropriate at this juncture to provide a thumbnail
sketch of the evidence of the main accomplice witness,
Salvin James
Africa, given that his testimony traverses the larger part of the
State’s case against the accused and importantly,
because he
purports to implicate each of the accused before Court in the various
offences in one way or another. However,
before dealing with
the evidence in which Africa implicates the accused, it would be
useful to consider some background facts and
circumstances and his
role in the enterprise.
83.
Africa is an intelligent person, who comes from the poor
working-class neighbourhood of Parkwood on the Cape Flats. To
this Court’s knowledge, from the many cases that come before it
on review from the lower courts, that area is gang infested
with a
high incidence of violent crime and substance abuse. Africa
appears to have risen above the adversity around him and
obtained a
matric pass from his local high school. After school he
commenced work as a till operator with a local supermarket
chain, and
later he worked as a machinist in a workshop, but had to give up that
work when he lost a finger in the workplace.
He then took to
white-collar work and in about 1996 he took up employment as an
operations clerk with a large firm, Commercial
Cold Storage, which
operated out of Cape Town docks. While employed with
Commercial, Africa quickly gained useful experience
in handling the
myriad documents necessary for the storage and exportation of fresh
and frozen products and in 1997, he was promoted
to the position of
operations supervisor at Commercial, with a team of about 50
employees reporting to him.
84.
Africa is of friendly disposition and has an engaging personality.
He is, however, not particularly articulate and much
of his evidence
was littered with jargon and local vernacular. In addition, in
the witness box he spoke quickly and softly,
tending to swallow his
words at time. The result was that even though he sat just a
few metres from the Bench, it was not
always easy to follow his
evidence, and both the Court and counsel regularly had to ask him to
speak up or repeat himself.
He seems to have a good memory,
particularly for numbers, something which the Court remarked on, on
occasion.
85.
Africa testified that in April 2002, he resigned his employment with
Commercial in the face of a looming disciplinary inquiry
relating to
the disappearance of products from the cold store under his control.
As a consequence he fell upon hard times
and was financially
embarrassed. It is common cause that Africa and
accused
1
, Phillip Miller, knew each other from the time
that Africa was employed at Commercial, while Miller was working for
a local fishing
company called Hispano, which evidently did business
with Commercial. Africa described Miller as a friendly and
benevolent
person, who gave him money from time to time. His
affinity and respect for Miller was apparent to us when he testified,
although
we should immediately add that the feelings did not seem to
be mutual as far as
accused 1
was
concerned.
86.
Africa, who was living at the time in the suburb of Heathfield, made
contact with Miller after he left Commercial and inquired
whether he
knew of any work that may be available. Thereafter, a meeting
took place one Saturday in Lakeside, where Miller
was busy with the
training of naval cadets. Shortly thereafter, Miller reverted to
Africa and told him that he may have found a
job for him with someone
he knew, which involved the exportation of fish. Africa said
that he understood from Miller that
the proposal involved completing
the paperwork to export the product, and in addition to a monthly
retainer of R3 000,00,
Africa would be paid a commission of
R2 000,00 on each container loaded.
87.
Miller lived at the time in the suburb of Tokai and Africa appears to
have been so desperate to take up the job on offer, that
he walked
the appreciable distance from his home to Miller’s to
participate in a job interview. At that initial meeting,
Miller
introduced Africa to Richard Chao, a South African citizen said to be
of Chinese extraction. Chao had a business which
manufactured
rustic furniture from old railway sleepers, which operated from
premises in the light industrial area of Montague
Gardens. But
that was not his only venture.
88.
Chao also exported relatively small quantities of fish to the East,
mainly Jacopever and pilchards, which he often sourced from
Miller,
who ran his own company called Fish Trader Extraordinaire (Pty)
Limited or FTE for short. Africa said that Miller
told him at
Lakeside that Chao was looking to expand his fish business and needed
someone to do the paperwork. At the
meeting at Tokai,
Chao first told Africa that he was looking for a truck driver, but
Africa could not be of assistance, as he did
not have a licence to
drive a truck. He impressed upon Chao that he was competent
with paperwork.
89.
We are able to infer, with a degree of confidence, that the Tokai
meeting must have been in about April or May 2002. In
the
result, Chao appears to have been taken by Africa and agreed there
and then to employ him. Subsequent to that meeting,
said
Africa, Chao gave him R15 000,00 with which to buy a car
to get to work and financed the purchase of office equipment,
including a computer, a printer and a fax machine. These items
were delivered to Chao’s premises by
accused number 1
.
90.
And so Africa commenced employment with Chao doing what he knew
best. He told the Court how he was required to complete
the
necessary paperwork to export a container of frozen fish products.
First there was a GRV (goods received voucher), which
was a document
issued by the cold store facility upon receipt of the product from an
exporter such as Chao or FTE. Then there
was a GIV (goods
issued voucher), which was issued by the cold store when the goods,
which had been stored earlier, were retrieved
for onward transmission
by refrigerated container. It was also necessary for the
exporter to provide an invoice for the product,
which was loaded into
the container at the cold store, as also a bill of entry export and a
bill of lading. The latter two
documents were usually completed
by the shipping agent responsible for arranging space for the
container on a vessel.
91.
There were also a number of official documents relating to customs
and excise protocols which had to be completed, and a certificate
which had to be issued by an inspector from the PPECB. The
importance of the latter was that no container could be certified
ready for transhipment unless the product had been certified by the
inspector to be adequately frozen. To ensure this, the
inspector was required to personally inspect the container and its
contents before it was closed up and sealed.
92.
Initially Africa prepared documentation for the export of a species
of local fish called Jacopever through a company controlled
by Chao
called Tresso Trading 500 (Pty) Limited (“Tresso 500”).
This fish had been sourced by Miller, who took
a commission on the
sale thereof to Tresso 500. After about four loads had been
exported through V&A Cold Storage in
the Waterfront, Africa said
Chao instructed him to oversee the removal of a load fish packed in
20kg boxes, (which Africa thought
was Jacopever), through to the Sea
Freeze Cold Store in Hout Bay Harbour. He was late for the
loading and eventually caught
up with the truck carrying the load
en-route to Hout Bay.
93.
Africa said that during the offloading process, the manager at Sea
Freeze expressed concern about the fragility of these boxes.
Africa said that this person told him he would speak to Miller about
the problem and if things did not improve, Sea Freeze would
not
receive further deliveries from them. Africa said that he
noticed that at Sea Freeze the cardboard boxes were loaded
on to four
wooden pallets and taken into the cold store, where they were kept
until the export container arrived for packing.
Africa said
that he did the necessary paperwork the following day and told Chao
of the concerns of the person at Sea Freeze and
asked what the
problem was. Africa testified that at this stage Chao told him
that the product was, in fact, abalone and
not fish, inquiring from
Africa whether he was not already aware of this.
94.
Africa was an old hand in the trade, and he would have realised
immediately that he was dealing with contraband. He said
that
he took a decision immediately to start working from home rather than
at the premises in Montague Gardens, the clear import
of his evidence
being that he did not wish to be visibly associated with Chao’s
business.
95.
Not long hereafter, Chao told Africa that he wished to set up a
separate company to deal with these exports and arranged for
a lawyer
to do the necessary to procure the registration of such a company.
Accordingly, on 26 June 2002, an attorney from
Rondebosch, Mr Adam
Pitman, attended to the registration of a new company called Tresso
Trading 588 (Pty) Limited (“Tresso
588”) in which Africa
was registered as the sole director and shareholder. Africa
said that
accused 1
informed him in advance
of this arrangement and took him to Mr Pitman’s offices so
that the necessary documentation could
be signed. Thereafter,
as we understand it, Tresso 588 was the corporate vehicle used to
export Chao’s product overseas
in containers during the second
half of 2002.
96.
Africa recalled (and Miller subsequently confirmed under oath) that
he collected Africa at his house in Heathfield before taking
him
through to Pitman’s offices for the registration of Tresso
588. The significance of this allegation is that it
is
reasonable to infer that when Africa signed the documents, he was
already working from home and would therefore have known what
the
true nature of the export product was. It is also debatable as
to whether Miller would have know of this, but more about
that later.
97.
Africa testified that he made use of a local company called Linmar
Shipping as his shipping agents, and was regularly in contact
with Mr
Melville Meihuizen to that end. After exporting various
containers during the period 2002 to 2004 from Cape Town
docks where
the product had been stored at V&A Cold Storage, Africa said he
was told by Chao to move the operation to Sea Freeze
Cold Storage in
Hout Bay at the end of 2004. His evidence in this regard was
not clear - whether the instruction came from
Miller or Chao - and we
shall accordingly assume in favour of
accused 1,
that
it was indeed Chao.
98.
At the instruction of Chao, a second company called Rapitrade 109
(Pty) Limited, was set up by Mr Pitman in January 2003 with
the same
directorship and shareholding as before. On this occasion,
Africa travelled through to Rondebosch alone. At
a later stage,
probably in late 2005, Tresso 588’s name was changed to Syroun
Exports (Pty) Limited and Chao made use of
this entity as an export
vehicle in 2006 when he returned his operation to V&A.
99.
During 2003 to 2004 Africa dealt with Chao’s brother-in-law, a
certain Mohammed, and the latter’s business associate
one
Shahied, both of whom were said to be of Moroccan extraction.
The evidence was to the effect that abalone was delivered
to the V&A
Cold Storage by either Mohammed or Shahied, where accused 8, Desmond
Pienaar, attended to the receipt thereof, (through
the issue of a
GRV) and later the discharge, (by issuing a GIV) of the goods.
Tresso 580, Chao’s original exporting
company, was the
corporate vehicle through which the movement of these goods took
place. Africa said that Chao and Mohammed
fell out towards the
end of 2004 and it was necessary to source a new supplier of abalone.
100.
Towards the end of 2004, and at the instruction of Chao, Africa made
contact with accused 4, who then became the principal
supplier to
Chao of abalone, which was exported by Sea Freeze, always under the
name of Rapitrade. Africa testified that
Du Toit personally
delivered abalone to Sea Freeze in 10kg boxes, using an ordinary one
ton bakkie. The contact person at
Sea Freeze, who was
responsible for booking in the product, was Cyril Akers, who was
responsible for issuing that company’s
GRVs and GIVs.
101.
It is common cause that accused 4 delivered abalone throughout 2005
and up to January 2006 to Sea Freeze. In his
evidence, Du Toit
dealt with this in some detail. Africa was always present when
the product was offloaded and he assisted
with the necessary
paperwork in that regard. Africa testified that when
there was sufficient abalone stored in the
freezers, a pre-cooled
refrigerated container was procured and filled at the Sea Freeze
loading bay. From there the container
was taken by road to the
container terminal in Cape Town Harbour, where it was loaded on board
a vessel, invariably destined for
Hong Kong.
102.
Africa testified that at Sea Freeze, 10kg boxes of pilchards (which
were similar in size to the boxes of abalone delivered
by Du Toit,
but were marked “Pesca Atlantica”) were used to partially
conceal the abalone, firstly in storage and later
in the container.
In the latter event, the abalone was loaded in first on wooden
pallets and pushed in to be flush with the
closed end of the
container. The container was thereafter filled up with
pilchards, so that when the PPECB inspector
checked the loaded
cargo, he would only be able to probe the boxes closest to the rear
of the container, i.e. at the doors, where
he was always only every
likely to encounter pilchards. By design, it was claimed that
the inspector was kept well away from
the abalone.
103.
Africa said that he was always able to distinguish the abalone
delivered by accused 4 from the pilchards in the cargo,
by the
recordal in the GRV and the GIV as to the source of the product.
To this end he developed a coding system whereby
abalone received
from number 4, was noted as being the product of Rapitrade. He
also used product allegedly sourced from
“V&A” or
“Cross Berth” (another cold storage facility in Cape Town
Harbour) to denote abalone, while
the pilchards were recorded as
being from one of the recognised pilchard suppliers. At Sea
Freeze the main supplier was Pesca
Atlantica, while Balobi, Viskor
and Komicx were some of the other suppliers he used later at V&A.
In the witness box,
Africa was taken through a multitude of Sea
Freeze GRVs and he testified as to who the supplier of the abalone
was and what the
quantity of each load was. He was also able to
identify the supplier of the pilchards used to mask the abalone in
the container.
104.
At some stage, we infer in late 2005, Africa said there was a police
raid at Sea Freeze, but as things turned out, there
was no abalone
present on the premises at the time. On the instructions of
Chao, said Africa, the export of abalone via Sea
Freeze was later
terminated, and V&A was once again used from early 2006.
105.
Africa said that in February 2006, accused number 4 personally
stopped delivering abalone when Jaco Botha took over as
the bakkie
driver. From then until 19 September 2006, all abalone
delivered by Jaco on behalf of accused number 4, was booked
in at V&A
under the name Rapitrade. Through this subterfuge, Africa said,
he was able to distinguish the abalone from
pilchards, which were
invariably booked in under the name of the original supplier, such as
Balobi, Viskor or Pesca Atlantica.
106.
Africa said that early in February 2006, he met accused 3, who he got
to know as Gavin, at a Caltex Filling Station at
the entrance to the
Cape Town Waterfront, having been introduced to him by Jerry Ku.
He said that number 3 thereafter commenced
delivering abalone to V&A
on the instructions of Chao and Ku, and his product was recorded in
the GRVs as originating from
Syroun. Africa said that accused 3
only attended the V&A premises on one occasion, thereafter
deliveries were made by
his cohorts, (regularly referred to by Africa
in evidence as “Gavin’s guys” and we shall,
therefore, refer to
them similarly), after a prior arrangement for
each delivery had been telephonically concluded with Africa.
Africa identified
accused 6, Rodney Onkruid, as one of Gavin’s
guys, who he saw on one occasion at V&A.
107.
Africa described, with reference to a multitude of documents, (first
copies and later when they were fortuitously discovered
in a police
storeroom after a change of office premises, the originals), how
deliveries were made to V&A in 2006 by either
Jaco Botha or the
aforesaid Gavin’s guys. The source of supply was always
identified in the GRVs, with reference to
either Rapitrade or Syroun
- this was how Chao was then able to distinguish whether the product
emanated from either accused 4
or 3 respectively. Africa said
that he was always present when abalone was offloaded, and that he
was he who told the clerk
booking in on behalf of V&A, what
description was to be given to each batch delivered.
108.
Africa went on to explain that when a container was to be loaded, he
would be called in advance by Chao, given the necessary
shipping
details so that he could prepare the paperwork and told to arrange
for the export of the stored abalone. He was
also informed by
Chao when the container would be delivered to V&A and he would
make the necessary arrangement with Meihuizen
and always be present
to oversee the loading of the container. Africa said that he
would communicate with V&A staff,
(usually accused 8), by fax or
e-mail, giving notice that he wanted to load a container. Some
pallets would contain a mixture
of abalone and pilchards, while
others would only contain pilchards. The latter were used to
mask the abalone once it had
been loaded into the container.
109.
Once again, the description of the pallets on the GIVs reflected
Rapitrade and/or Syroun, and the pilchards were described
with
reference to the original supplier under whose name the pilchards had
been stored at V&A. It was later claimed by
Miller that the
batch description always remained the same inside the cold store for
purposes of product integrity. So, for
example, if Pesca had
initially delivered a quantity of pilchards to the V&A for
storage purposes and later sold those pilchards
to Rapitrade or
Balobi or any other entity, they would always retain the batch
description, “Pesca”, even though a
transfer of ownership
had taken place.
110.
According to Africa, accused 8 and 9 were well known to him as
employees at V&A. Abrahams, the more senior
of the two, was
the operations manager and Pienaar the operations supervisor.
It was the function of the operations supervisor
to oversee the
offloading of the vehicles delivering product to V&A, the
palletising thereof, if necessary, and the storage
of the product in
the cold store. When the time came for a container to be
packed, the operations supervisor would once again
be on duty and see
to the withdrawal of the pallets from the cold store for the purposes
of loading into the container. Africa
said that in the event
that Pienaar was for some unexpected reason not available, Abrahams
would oversee his functions in his absence.
111.
Africa testified that Abrahams and Pienaar were both aware that
abalone was being stored at V&A and were jointly
paid R10 000 per
container to ensure "safe passage" (as he put it) of the
product through the storage and loading phase.
Initially Africa said
that they were paid by accused 1, but that in 2006 accused 8 and 9
complained that payments were starting
to become irregular because
Miller had moved to Paarl and was less accessible to them. In the
result Africa said he took over payment
of accused 8 and 9 directly
with money advanced to him by Chao in 2006. In the process, said
Africa, he hoodwinked Chao into paying
him an additional R10 000,
ostensibly to bribe a PPECB official. The truth however was that
Africa pocketed R6 800 for himself
and Abrahams and Pienaar were each
paid an additional R1 600, so he said.
112.
In our view this act of dishonesty towards Chao provides a timely
caution to the evaluation of the evidence of Africa.
He seems to us
to be one of those people who will not miss an opportunity to make
easy money. That he is open to influence
in this regard is
further demonstrated by an incident which occurred some months after
his arrest. He agreed to meet accused
1 at the Milnerton
lighthouse ostensibly to tell Miller (and Chao who was lurking in the
background) why he had implicated them
in the offences. Many
years later, and with the prospect of a trial looming, Africa sent
Miller a text message (Exhibit S)
in which he cryptically referred to
Chao and implied that his evidence could be influenced by payment of
a suitable gratuity.
113.
Africa was asked about Exhibit S under cross-examination by Ms
Joubert and his explanation was that he had been short-changed
by
Chao who still owed him payment for the last batch of abalone
exported in September 2006 and that he was short of money. Whatever
the true position may be, we believe that this text message
adequately demonstrates that Africa is capable of being influenced
to
attenuate his evidence by the payment of money.
114.
There are various other examples of Africa's opportunism and
dishonesty but it is not necessary to go into further detail
in that
regard since the State accepted without reserve that Africa's
evidence had to be approached with caution - not only because
as an
accomplice his criminal conduct was at the very core of the illegal
operation spearheaded by Chao, but because he demonstrated,
time and
again, a propensity towards questionable dealings. While the defence
harmoniously claimed that Africa presented as an
inherently dishonest
and corrupt individual, the State was less condemnatory of his
character. But either way, there is no doubt
that he exhibited an all
too pervasive human frailty – an attraction to the lure of easy
money. And, it must immediately
be added, in the pursuit thereof he
was indubitably ruthless and would not hesitate to compromise his
integrity.
115.
In the circumstances we accept implicitly that on material issues
regarding the alleged involvement of the various accused
in the
offences with which they are charged, Africa's evidence requires to
be suitably corroborated to the extent that we are satisfied
beyond
reasonable doubt that he can be relied upon in relation to those
issues.
116. We consider that the most
practical way to deal with Africa's evidence is to consider it in the
context of the allegations
upon which the State relied in argument in
respect of the evidence pointing to the guilt of each of the accused.
And when we do
so, we will consider his evidence in the light of the
cross-examination on behalf of each such accused, the evidence
tendered on
behalf of accused numbers 1, 4 and 8, the absence of any
evidence by any of the other accused, the evidence of other State
witnesses
and, where necessary, the probabilities.
THE
ROLE OF CELL PHONE EVIDENCE IN THE TRIAL
117.
In as much as the cellphone has become an indispensable tool of
communication in modern life, so too has its utilisation
become
commonplace in the commission of crime. In the result, the
investigation of crime these days often leans heavily on
the
evaluation of cell phone evidence, not only to see which parties were
talking to each other but where the instruments were
when calls were
made.
118.
In this matter the State adduced the evidence of Brink for the
analysis of the cell phone evidence and we shall revert
to that in
due course. Suffice it to say that the Court must be satisfied
as to the integrity of the analysis of the cell
phone evidence: this
commences with the seizure of handsets, SIM cards, phone records and
user-accounts all of which must follow
due process or at the very
least depend on acceptable processes of seizure, and it culminates in
the accuracy of communication
between cellphone numbers and the
locality at which a particular handset was situated when a call was
either made or received.
119.
As his point of departure, Brink took the various handsets which had
come into the possession of the police and analysed
them
individually. Using appropriate software he was able to access
the list of contacts on each instrument thereby establishing
a
directory of cell phone numbers on any particular instrument, or on
any particular SIM card. These lists were then downloaded
by
Brink (the term "dumping" was used) and stored on his
computer. Not unexpectedly, some of these contact lists recorded
names through the use of abbreviations or nicknames to ensure
confidentiality and to promote subterfuge. He compiled a detailed
list comprising,
inter alia
,
handsets with their unique international reference numbers (the
so-called IMEI number), SIM cards, lists of contacts and the
telephone numbers of such contacts. These are contained in
Exhibit 3.
120.
Through an arrangement which the police had at the time with the
three cell phone service providers in South Africa,
Brink made use of
subpoenas issued in terms of Section 205 of the CPA to procure
detailed billing records of a variety of cellphone
numbers for
specific periods. That information was made available to the
police by the service providers through an email
service in which the
data requested was deposited in a dedicated mailbox accessible only
to authorised police officers.
121.
The information so provided was contained in spreadsheet form with
columns indicating,
inter alia
,
the SIM card number (in reality the telephone number), the IMEI
number of the handset into which the SIM card had been inserted,
the
date and time (measured by hour, minute and second) that the
communication (usually a call or an SMS) was made, whether the
communication was outgoing or incoming, the duration of the call
measured in seconds and the locality of the cell phone transmitter
tower through which the call had been routed. Such tower would
reflect the locality of the handset making or receiving the
communication
i.e. the handset which was the subject of the
particular enquiry.
122.
Brink then analysed the information furnished to him by the service
providers using a software program known as “Analyst
Notebook”,
evidently a tool readily available commercially. Analyst Notebook
enabled Brink to produce spreadsheet tables
of his own and to compile
more limited records of cell phone traffic than contained in the
original data supplied to him. The
software also enabled him to
produce a diagrammatic representation of cell phone traffic between
numbers which interested him.
123.
So, for example, if he was analysing Africa's communications on a
particular SIM card, the diagram would reflect Africa's
cellphone in
the middle of the page and the communications with other numbers
selected from the original data spread around the
periphery of the
page with lines connecting those numbers to Africa's phone. These
diagrams, which had the appearance of spider
webs, were conveniently
referred to by the parties in evidence as "spiders" and are
contained in Exhibit 4. The lines
connecting the numbers at the
periphery to the number at the core of the diagram contained digits
reflecting the total number of
communications between those numbers.
Such communications are made up of outgoing and incoming calls
as well as text messages,
(SMS) sent and received.
124.
In the result, Exhibit 4 comprised a multitude of spiders each
supported by its own table in which the call data procured
by the
cellphone service providers was recorded in spread sheet form. For
the sake of convenience I shall refer in this judgment
to a 'spider'
(with its relevant exhibit number) and its supporting table.
125.
During the cross-examination of Brink by Mr Uijs SC, it transpired
that the number of communications recorded on some
of the spiders
between some of the instruments did not tally with the number of
calls recorded in the supporting table which Brink
had prepared. So,
for example, counsel observed in respect of Exhibit 4.7 that 569
calls were recorded between Ku and Africa,
Chao, accused numbers 2
and 3 and Stanley Dhlamini whereas the supporting documentation
contained in spreadsheet which verified
it in fact showed the number
of calls to be 490. Counsel then mounted an attack on the
integrity of the Analyst Notebook
software suggesting that it had not
properly captured the information fed in by Brink. It was also
suggested that Brink had
manipulated the data to suit his needs.
126.
Brink explained this dissonance by pointing out that the software was
particularly sensitive to the manner in which a
cell phone number was
recorded. So for example, if the number was preceded by the South
Africa international dialling code (0027),
it might not necessarily
have been picked up by Analyst Notebook and might not appear in the
spider. In the result, where there
was a difference (and it must be
said that by the end of the trial this was in respect of a very
limited number of spiders), the
supporting tables could always be
relied upon for having accurately reflected the call data.
127. In light of this
cross-examination the State later adduced the evidence of witnesses
from two cell phone providers, MTN
and Vodacom, who were subpoenaed
to bring all of the original data which had been supplied to the
police in terms of the sec 205
subpoenas. Accordingly a
plethora of cell phone records was placed before the court in some 6
files making up Exhibit 4.
The integrity of those records (which I
will call the "core data") was not challenged by any of the
accused and at the
end of the case the accuracy of the core data so
supplied by the cell phone providers was not in issue.
THE
CONSTITUTIONAL CHALLENGE TO THE CELL PHONE EVIDENCE
128.
During his concluding argument, Mr Uijs SC, attacked the
admissibility of the cell phone evidence on the basis that its
emergence part-way through the State case had infringed the rights of
accused 2, 4 & 5 to a fair trial as guaranteed under
Section
35(3) of the Constitution of 1996.
129. At the outset it is
apposite to point out that in
National Director of Public
Prosecutions v King
2010 (2) SACR 146
(SCA) Harms DP made the
following trenchant remarks, in an interlocutory application for
docket discovery in a criminal trial,
regarding the concept of a fair
trial in our constitutional dispensation:
"[4] It is well to remind oneself
at the outset of a number of basic principles in approaching the
matter. Constitutions call
for a generous interpretation in order to
give full effect to the fundamental rights and freedoms that
they create. The
right to a fair trial is, by virtue of the
introductory words to Section 35(3) of the Bill of Rights, broader
than those rights
specifically conferred by the fair trial guarantee
therein and embraces a concept of substantive fairness that is
not to
be equated with what might have passed muster in the past.
This does not mean that all existing principles of law have to be
jettisoned
nor does it mean that one can attach to the concept of a
“fair trial” any meaning whatever one wishes it to mean.
The
question remains whether the right asserted is a right that is
reasonably required for a fair trial. A generous approach is called
for. This is a question for the trial judge and there is in general
not an
a priori
answer to the question whether the trial will
be fair or not. Potential prejudice may be rectified during the
course of the trial
and the court may make preliminary rulings
depending on how the case unfolds and may revoke or amend them.
Irregularities do not
lead necessarily to a failure of justice.
[5] There is no
such thing as perfect justice - a system where an accused person
should be shown every scintilla of information
that might be useful
to his defence – and discovery in criminal cases must always be
a compromise. Fairness is not a one-way
street conferring an
unlimited right on an accused to demand the most favourable possible
treatment but also requires fairness
to the public as represented by
the state. This does not mean that the accused's right should
be subordinated to the public's
interest in the protection and
suppression of crime; however, the purpose of the fair trial
provisions is not to make it impracticable
to conduct a prosecution.
The fair trial right does not mean a predilection for
technical niceties and ingenious legal stratagems,
or to encourage
preliminary litigation - a pervasive feature of white-collar crime
cases in this country. To the contrary: courts
should within the
confines of fairness actively discourage preliminary litigation.
Courts should further be aware that persons
facing serious charges -
and especially minimum sentences - have little inclination to
co-operate in the process that may lead
to their conviction and 'any
new procedure can offer opportunities capable of exploitation to
obstruct and delay'. One can add
the tendency of such accused,
instead of confronting the charge, of attacking the prosecution."
(Footnotes omitted)
130.
It must be said in passing that it is considered to be unusual to
raise the claim of an unfair trial in final argument
before the trial
court. Ordinarily the claim is raised in an appellate court
only once there has been a conviction. As
Harms DP observes,
fundamental to a conviction flowing from an allegedly unfair trial is
the issue of irremedial prejudice, and
while the trial is still
underway, such prejudice can of course be sought to be ameliorated at
any stage. It is only once
the evidence and all the vagaries of
procedure in the trial court are cast in stone through a conviction
that it can truly be determined
whether the trial proceedings were
fair or not. I shall return to this point later. Be that
as it may, the unfair trial
argument underwent refinement during the
course of counsel's five day address but ultimately we understand the
accused's objection
to be based on the following facts and
circumstances.
131.
Cell phones belonging to some of the accused and certain State
witnesses were retrieved by the police during arrests
relevant to the
case in September and October 2006: in some instances the
handsets were seized at the time of arrest and
in other cases, were
handed over by the accused when surrendering themselves for purposes
of arrest during November 2006.
132.
According to Brink, he began analysing some of these phones towards
the end of 2006. This was after he and Potgieter
had procured
subpoenas in terms of Section 205 of the CPA and obtained the
necessary records from Vodacom and MTN. At the
end of that year
Brink was transferred to George and the cell phone analysis seems to
have been put on hold. After spending
approximately two years
in George, Brink returned to Cape Town and evidently completed his
analysis of the cellphone records. This,
it was argued, would
have been during 2009 to 2010.
133.
Mr Uijs SC, submitted that the defence should have been placed in
possession of this analysis around 2010, whereas the
cellphone
records only emerged in this prosecution some six months after the
trial commenced. This happened when the lead
prosecutor, Ms
Greyling, informed the Court on 9 March 2015 that it had
recently come to her attention that such records were
in the
possession of the police. She indicated that the prosecutors
had been caught unawares and that she had given the police
instructions to conduct further investigations before formally making
the evidence available to the defence in electronic form
on 16 March
2015.
134.
As the record of proceedings herein reflects, the defence initially
experienced difficulty in accessing that electronic
evidence. The
State assisted, first by providing electronic tools with which the
defence could access the evidence and ultimately
providing hard
copies to the defence of the extensive records produced by Vodacom
and MTN. Defence counsel were afforded
as much time as they
required to inspect and assess the cell phone records and were not
required to cross-examine any witnesses
before they had done so.
135.
We did not understand Mr Uijs, SC, to complain that the defence had
not been given sufficient opportunity to deal with
the evidence once
it had been produced by the prosecution. Rather, it was said that the
police (and in particular Brink) were at
all material times aware of
the existence of the records and had intentionally suppressed the
information with the intention of
prejudicing the accused in the
preparation of their respective cases. Because the evidence had
come at such a late stage
of the proceedings, said counsel, the court
should ignore all references to it, thereby ensuring that the trial
was fair.
136.
When pressed to explain which of the fair trial rights protected
under Section 35(3) of the Constitution had been infringed,
Mr Uijs
SC, submitted, as a general proposition, that the accused were
entitled to know in advance what the case was that
they had to meet
and to prepare for it. That submission is undoubtedly
well-grounded in the provisions of Section 35(3) (a)
and (b) of the
Constitution. When pressed to give content to the prejudice
occasioned to the accused in question by the late
introduction of the
evidence, counsel complained that the accused were caught unawares,
at an advanced stage of the State case,
of evidence which might be
potentially prejudicial to their cases. The complaint was that
the State was conducting "trial
by ambush", as counsel put
it.
137.
The suggestion by Mr Uijs SC, that Brink (and to a lesser extent
Potgieter) had intentionally suppressed the cell phone
evidence with
the intention of ultimately embarrassing the accused is without doubt
a serious accusation to make and this is more
particularly so in a
case where it is made in relation to long-serving, experienced (and
in the case of Brink, senior) police officers.
The primary
problem that we have with that submission is that the principles in
SARFU
were
not observed in that the police witnesses were not cross-examined on
the point and afforded the opportunity of explaining
or exonerating
themselves. In the result the issue was not fully traversed in
evidence and in such circumstances we are not
prepared to draw the
adverse inference of
mala fides
contended for by Mr Uijs SC.
138.
When it was pointed out to counsel by the Court that the prosecution
appeared to have played open cards with the Court
and was seemingly
not to blame for the late production of the evidence, Mr Uijs SC,
fairly accepted that that was the case. In
the result the
position seems to us to be that it cannot be said that the cellphone
analysis (and the implication of the accused
thereby) has been
intentionally withheld from the accused. The non-availability
of the analysis to the defence at an earlier
stage of the trial, and
in particular before the commencement thereof, does therefore not
appear to us to attract blame to any
particular party. Rather, it
seems as if this is one of those situations where perhaps the left
hand did not know what the right
hand was doing.
139.
In
Nortje and Another v
Attorney-General, Cape and Others
1995(2) SA 460 (C), a Full Bench of this Division was asked, on
appeal against a ruling by a trial court in criminal proceedings,
to
direct the prosecution in the trial court to hand over witness
statements in the police docket to the defence. This case is
one of a
string of cases heard in the various Provincial Divisions which
ultimately led to the decision of the Constitutional Court
in
Shabalala and Others v Attorney-General,
Transvaal and Another
1996(1) SA 725
(CC) , the so-called "docket case".
140.
The decision in
Nortje
was based on the right of access to information in the possession of
the State founded in Section 23 of the Interim Constitution,
1993
(which right is now incorporated in Section 32 of the 1996
Constitution) and as amplified in Section 25(3)(b) of the Interim
Constitution, the precursor to the current Section 35(3)(b). In a
detailed and searching enquiry, Marais, J, (as he then was) looked
at
a myriad considerations applicable to the exercise of the Section 23
right in the context of a criminal prosecution.
141. At 483E the learned judge
dealt with the essence of the right thus:
"What is the
essential content of that right in the present context? It is
the right to information in the hands of the
prosecutor which persons
charged with the commission of offences reasonably require in order
to exercise or protect their rights.
The right they wish to
exercise or protect is their undoubted right to defend themselves
effectively against the charges
laid against them. The
essential content of the right to information in this particular
context is access to whatever information
the prosecution has in its
possession which could be of use to the applicants in preparing for
trial and defending themselves at
the trial. The evidence which
has been collected by the State plainly falls into that category of
information. The
statements taken by the State from witnesses
are ordinarily the most important element in that evidence."
142. As to the consequences of
the failure to afford an accused person access to such information,
the learned judge said
the following at 484A:
"To deny to an
accused person, in all criminal prosecutions, use of the right
conferred by Section 23, and so prevent the accused
from having
pre-trial access to what ordinarily will be the bulk of the evidence
to be given against him or her, is so extensive
and material a
limitation on that right that it is difficult to see how it can be
said that it does not negate the essential content
of the right."
143. But it must be stressed
that the judgment in
Nortje
was delivered in response to an
application for pre-trial disclosure of information by the
prosecution. In that context,
Marais, J, noted the following
reservation at 484J:
"I emphasise
that I am not concerned here with the question of when precisely an
entitlement to such disclosure arises. This
investigation is complete
and the trial was about to commence. It has not been suggested that
it would be undesirable to make disclosure
now. It would
plainly be untenable to allow an accused access to the statements of
each witness immediately after it has
been minuted. That would
result in a situation in which the suspect would be virtually
breathing down the neck of the investigating
officer, and in a
position, by reason of his knowledge of the course of the
investigation, to take steps to obstruct it. A
limitation as to
when the accused would become entitled to disclosure of the
statements, provided it was not later than a reasonable
time before
trial, would not derogate from the essential content of the right and
would be both reasonable and justifiable within
the meaning of
Section 33."
144. In
Shabalala
,
Mahomed, DP, dealt with the various and differing approaches in the
earlier Provincial decisions. Ultimately, the learned Deputy
President of the Constitutional Court held that there could be no
blanket docket privilege and permitted the State, in appropriate
circumstances, to argue what information might or might not be
disclosed to the defence, stressing that the approach was a case
by
case assessment to be exercised on an incremental basis by the High
Court:
"[52] Even in such cases,
however, it does not follow that the disclosure of the statements
concerned must always be withheld
if there is a risk that the accused
would not enjoy a fair trial. The fair trial requirement is
fundamental. The court
in each case would have to exercise a
proper discretion balancing the accused's need for a fair trial
against the legitimate interests
of the State in enhancing and
protecting the ends of justice.......
[58] The details as
to how the Court should exercise its discretion in all these matters
must be developed by the Supreme Court
from case to case but always
subject to the right of an accused person to contend that the
decision made by the Court is not consistent
with the Constitution."
145. In this case the defence
was given full access to the police docket (in electronic format)
well in advance of the trial
but only given access to Brink's cell
phone analysis at about the same time that the prosecution was i.e.
well after the commencement
of the trial.
Prima facie
that
constitutes a potential violation of the fair trial rights protected
under Sections 35 (3) (a), (b) and (i) of the Constitution,
which
read as follows:
"Section35
(3): Every accused person has a right to a
fair trial, which includes the right-
(a) to be informed
of the trial with sufficient detail to answer it;
(b) to have
adequate time and facilities to prepare a defence...
(i) to adduce and
challenge evidence."
146.
The question then is what falls to be done in such a situation? It
seems to us that we should approach the matter
in accordance with the
dictum
of
Melunsky, AJA, in
S v Smile
1998(1) SACR 688 (SCA), in which the facts bear some resemblance to
this matter. The accused in that case had been charged
with
murder and robbery and before the trial commenced their legal
representative applied for an order compelling the prosecution
to
hand over to the defence evidence summaries of evidence to be given
by each of the witnesses whom the State proposed to call.
The
application was refused and the matter proceeded in the absence of
such documentation.
147. On appeal the accused
challenged their convictions before the trial court on the basis of
the fair trial provisions incorporated
in Section 25(3) of the
interim Constitution of 1993 whose provisions are to all intents and
purposes the same as those under consideration
in this matter. On
appeal, the challenge was described thus by Melunsky, AJA, at 690d:
"In this Court
Mr Notshe argued that the appellants had been deprived of the right
to a fair trial on the ground that the State
had refused to furnish
them with summaries of statements of witnesses before the hearing.
He submitted that the subsequent
change of stance by counsel
for the State, while the State case was already under way, was of no
consequence, as the appellants
were entitled to the summaries of the
statements before the commencement of the trial to enable them to
prepare properly. The
denial of that right, according to the
argument, carried with it the inevitable result that the appellants'
constitutional
fights to a fair trial, in terms of Section
25(3) of the Constitution of the Republic of South Africa Act 200 of
1993 (‘the
interim Constitution’), had been violated."
148. Melunsky, AJA, observed
that courts of appeal were, as a matter of principle, required to
consider whether the proceedings
in the lower court had been vitiated
by constitutional irregularities. This, said the learned judge
of appeal, brought a
number of competing rights into play as appeared
from the judgment of Mohamed, CJ, (then sitting
in
the
Namibian Supreme Court) in
S v Shikunga and Another
1997(2) SA
470 (Nm) at 484 b-f:
"Where the
irregularity is so fundamental that it can be said that in effect
there was no trial at all, the conviction should
be set aside. Where
one is dealing with an irregularity of a less severe nature then,
depending on the impact of the irregularity
on the verdict, the
conviction should either stand or be substituted with an acquittal on
the merits. Essentially the question
that one is asking in
respect of constitutional and non-constitutional irregularities is
whether the verdict has been tainted by
such irregularity. Where
this question is answered in the negative the verdict should stand.
What one is doing is attempting
to balance two equally
compelling claims - the claim that society has that a guilty person
should be convicted, and the claim that
the integrity of the judicial
process should be upheld. Where the irregularity is of a
fundamental nature and where the irregularity,
though less
fundamental, taints the conviction the latter prevails. Where
however the irregularity is such that it is not
of a fundamental
nature and it does not taint the verdict the former interest
prevails. This does not detract from the caution
which a Court
of appeal would ordinarily adopt in accepting the submission that a
clearly established constitutional irregularity
did not prejudice the
accused in any way or taint the conviction which followed thereupon."
149. After considering various
authorities including the
dictum
in
Shikunga
, Melunsky,
AJA, observed as follows at 692d:
“
The
remaining question on the preliminary point is whether the
appellant's rights were violated. The submission of the
appellant's
counsel was that the failure to supply the summaries of
statements of each witness before the commencement of the trial per
se
amounted to a denial of the right to a fair trial which justifies
this Court in setting aside the convictions. As Mahomed,
CJ,
pointed out in
Shikunqa's
case at 483i - 484b, it is not every constitutional irregularity
committed by the trial court that justifies the Court in setting
aside the conviction on appeal. Whether or not there has been a
fair trial must ultimately be answered having regard to the
particular circumstances of each case. (See
Shabalala
and Others v Attorney-General, Transvaal and Another
1996(1) SA 725 (CC) at 743 C-D, para’s 35 and 36).
It is common cause
in this case that the statements of the prosecution witnesses who had
not yet testified were handed to the defence
in August 1994. It
is true that the statements of the witnesses who had previously
testified were not delivered to the defence
but counsel for the State
offered to furnish the defence with their statements if they were
required. No requests for statements
made by the defence were
refused. There is also no reason to doubt that the Court would have
acceded to the defence's application
for the recall of any witness
whose evidence had been concluded, but no application for any such
recall was made. Although
the initial refusal to furnish the
appellants with statements of prosecution witnesses was a
constitutional irregularity, it is
not, in the circumstances of this
case, a ground for setting aside the convictions. Unlike other
conceivable classes of irregularity
which are irremediable once they
have occurred, this irregularity was potentially remediable. It
is therefore not possible
to regard it as an irregularity of so
fundamental a kind that it immediately vitiated the trial and
necessitates setting aside
the convictions. It is necessary
therefore to have regard to the conduct of the trial as a whole in
order to decide whether
the irregularity persisted and thus tainted
the convictions and resulted in an unfair trial. In August 1994
the statements
of prosecution witnesses were made available to the
defence. Any initial unfairness attending the trial was thereby
purged.
At that stage the State case had not been closed, the
defence could have applied to recall witnesses who had already
testified
and sufficient time was available to consider the contents
of the statements and to prepare for the further conduct of the
trial.
Under these circumstances the contention of the
appellants' counsel on the preliminary point cannot succeed. It
may
be noted that the Full Court of the Cape Provincial Division in
Nortje and Another v Attorney-General
Cape and Another
1995(2) SA 460 (C) was
not prepared to accept the proposition that a failure to make
pre-trial disclosure of the statements of
witnesses
ipso
facto
rendered the trial unfair
although later disclosure of statements during the trial was made (at
483A-D). But it should be
emphasised that this does not mean
that it is open to the State, as a matter of course, to postpone the
disclosure of the statements
of prosecution witnesses provided only
that they are disclosed at some time before the close of its case.
Disclosure of statements
should usually be made when the accused is
furnished with the indictment or immediately thereafter in accordance
with the practice
suggested in
Shabalala's
case at 752A-F paragraph 56."
150.
In assessing the competing interests inherent in the late production
of the cell phone analysis in this case, the Court
asked counsel to
deal with the question of prejudice to the accused. Mr Uijs SC,
stressed that the prejudice lay in the fact
that it was unfair to ask
an accused now to explain the ambit, extent and content of phone
calls made more than ten years earlier
and then to hold it against
him when he was unable to accurately recall what was discussed.
As a general proposition, there
is certainly merit in that
submission. However, and on the other hand if the facts suggest, for
example, that persons who would
not ordinarily have had the need or
reason to call one another, were in fact communicating, then it is
not unfair to enquire from
an accused what the general purpose or
gist of such a communication might have been. And the answer to
such a question might
then be interrogated as to the probabilities
and its veracity.
151.
In our view, although the evidence was produced well after the
commencement of the State case it was not at such an advanced
stage
of the proceedings that the situation was irremediable. The
prosecution informed the Court on the 36th day of a trial
which
lasted until August 2017, (in excess of 150 days exclusive of the
delivery of judgment), of the existence of the cell phone
evidence.
As I have said the defence were given time to deal with it and
ultimately the opportunity arose and was utilised
by certain counsel,
to cross-examine Africa in relation to certain of the telephonic
communications when he was recalled to testify
on the 66
th
day of the trial on 13 October 2015.
152.
Mr Uijs SC, accepted that the defence had been given ample
opportunity to consider the late evidence, take instructions
thereon
and to question the relevant State witnesses including applying for
the recall of such witnesses whose testimony had already
been
completed. Further, he very properly conceded, essentially by
way of a
mea culpa,
that he would have to shoulder some of the blame for not appreciating
the full extent of the cell phone evidence at the time that
it was
presented and that he should perhaps have done more by way of
preparation when cross-examining the relevant witnesses.
153.
In our view there are various factors which fall to be considered on
this point. Perhaps the most important consideration
is the fact that
the prosecution of the larger group of accused arrested in this
matter effectively stood still from late 2009
(when Erasmus, J,
delivered the ruling referred to earlier) until early 2012, when the
pleas of guilty by some were tendered and
the trials separated.
During that time the parties awaited the outcome of the pending
POCA litigation in the Savoi matter
and no trial preparation took
place. It can certainly not be said that the cell phone analysis and
records were liable to be handed
over before 2012.
154.
In the result, the availability of the information contained in the
police docket only truly became an issue in about
2012, when sights
were finally focussed on defending the remaining accused after the
matter had been declared trial ready. If the
cellphone evidence had
been brought to the attention of accused 2, 4 and 5 at that stage, it
is notionally possible that their
powers of recollection might have
been less impaired than after say ten years, but one would never know
how much more was forgotten
in the subsequent four years. In
that context can one really complain of prejudice, if one would not
have been able to deal
with it earlier?
155. In
Nortje
at 469D-E,
Marais, J, cautioned against indiscriminate claims by counsel of an
"ambush":
"As for
deprecatory remarks, which are sometimes to be found, about trial 'by
ambush', those who make them tend to accept with
equanimity the fact
that most systems allow the accused to 'ambush' the State and its
witnesses to his or her heart's content.
In any event, in my view,
the 'ambush' analogy is overworked and overblown. Properly
understood, it is a word devised to describe
the situation where an
entirely unsuspecting person is suddenly set upon, without warning,
by another. Litigants and witnesses
are hardly unsuspecting and
suddenly set upon. They know they are involved in court proceedings
and that they will be cross-examined.
There is little
resemblance between them and the victims of an ambush."
156.
In this matter, the accused, that is 2, 4 and 5, knew from the time
of their respective arrests that the police had seized
their cell
phones and common sense would have informed them that the police (and
ultimately the prosecution services) would have
been interested in
who was communicating with whom, and when. So much for their
claims now that they were caught unawares.
Rather, it is
apparent from Mr Uijs SC’s, concession in argument that the
fault lay at his door for failing to fully
appreciate the import and
extent of the cell phone evidence. In our view it would not be
fair to the State for an accused
person to be the beneficiary of his
legal representative's laxity in preparation of his
cross-examination. That is not what we
understand the denial of a
fair trial to embrace. Furthermore the objection raised on
behalf of accused 2 and 4 can only
really relate to one cell phone
number used by each of them, since, as will be seen later, each of
them denied use of a second
number. This perforce reduced the number
of documents which they were required to pursue and in respect
whereof they could give
an answer.
157.
In conclusion we note that the objection to the cellphone evidence
was made only on behalf of accused 2, 4 and 5. The
remaining accused
acquiesced in the evidence being adduced late and did not claim an
ambush. Finally, we did not understand Mr
Uijs SC, to suggest that
any of the cell phone evidence had been improperly obtained in breach
of the CPA or the Constitution so
that we are not dealing with
so-called "tainted evidence" (see
S
v Pillay and others
2004(2) SA 419
(SCA) at para 91) which might otherwise have affected the
admissibility of such evidence.
158. In the result we are of the
view that the fair trial rights of accused 2, 4 and 5 have not been
infringed and that it
is proper for us to have regard to the cell
phone evidence in considering our judgment.
POCA
AND THE PREDICATE OFFENCES
159.
Both the State and the defence were in agreement regarding the
application of the provisions of POCA in this matter.
It is
accepted that before any of the accused can be said to have
contravened Section 2(1)(e) of POCA, it must be established
beyond
reasonable doubt that the conduct of each such accused constituted a
pattern of racketeering activity as defined in Section
1 of POCA.
The provisions of each of these sections have been recited
above and will not be repeated now.
160.
The term 'racketeering' is derived from the American legislation on
which POCA is based (The Racketeer Influenced and
Corrupt
Organizations Act of 1970 or 'RICO'). While the word as such is not
defined in POCA, the Shorter Oxford Dictionary defines
a 'racketeer'
as “a person participating in or operating a dishonest or
illegal business, frequently practising fraud, extortion,
intimidation, or violence.” The essence of the dictionary
definition then is a criminal business with the emphasis
on the
latter.
161.
The offences which fall under the definition of "racketeering
activity” for the purposes of POCA are listed
in Schedule 1
thereto and include, under Item 19, "fraud" and under Item
33, "any offence the punishment wherefore
may be a period of
imprisonment exceeding one year without the option of a fine."
It is common cause that a contravention
of Regulation 39(1)(a)
of the MLRA Regs (possession or control of abalone for commercial
purposes) attracts a maximum sentence
under Section 58(4) of the MLRA
of a fine not exceeding R800 000 or to imprisonment not exceeding two
years. Accordingly,
those accused charged with contravening
this regulation resort under the broad category of offences referred
to in Item 33 by virtue
of the potential penal sanction applicable to
a contravention of Regulation 39(1)(a).
162.
A contravention of Section 18(1) of the MLRA (the unlawful operation
of a fish processing facility) attracts a sentence
under Section
58(1)(b) of that act of a fine not exceeding R2-million or
imprisonment not exceeding five years. In the circumstances
those
accused charged with contravening this section also fall within the
purview of Item 33.
163. Ordinarily, the State would
have been be entitled to adduce evidence to show that any of the
accused had committed any
number of offences in his capacity as a
participant, that is a racketeer, in an illegal business involved in
a “pattern of
racketeering”. However, POCA is
intentionally structured in such a manner that the State is afforded
a less onerous
procedural basis to prove the criminal conduct of the
racketeer. And so, in terms of Section 2(1)(e) a person commits
an
offence
•
by managing;
•
being
employed by; or
•
being
associated with;
an unlawful enterprise while
•
conducting;
or
•
participating;
•
either
directly or indirectly in;
its
affairs through what is termed 'a pattern of racketeering’.
164. The jurisprudence relating
to POCA is still developing and there are relatively few cases upon
which a court of first
instance can rely for guidance. In the
only text book on the topic currently available in South Africa,
Organized Crime and Proceeds of Crime Law in South Africa
, at
page 24, Albert Kruger stresses with extensive reference to the
American jurisprudence on RICO, that the purpose of anti-racketeering
legislation is to target the organisation rather than the criminal:
"The
racketeering offence targets the organisation, not individual
criminal acts (events). The accused must be found to have
participated in the organisation (enterprise) by managing some aspect
of it or by performing acts for the enterprise, by participation
or
involvement."
165. At page 22
Kruger
stresses the importance of continuity in determining whether there
has been a pattern of racketeering activity which lies at the
heart
of the various offences contemplated under Section 2(1) of POCA:
"Although POCA
does not require any relationship between the two predicate offences,
in assessing whether the offences are
“planned, ongoing,
continuous or repeated” the court will have regard to the
nature of the predicate offences. The
nature of the predicate
offences and the relationship between the offences will guide the
court in determining whether there is
continuity."
166. And at page 23 the author
suggests what the elements of an offence involving a "pattern of
racketeering activity"
under POCA incorporate.
"In order to
convict an accused of any contravention of Section 2 (1), the state
will have to prove that:
(a)
at least two offences contemplated in
Schedule 1 of POCA were committed (not necessarily by the accused)
(b)
at least one of those offences occurred
after 21 January 1999, and
(c)
the last or second offence occurred within
ten years of the first offence, and
(d)
participation must have been planned,
ongoing or repeated, and
(e)
mens re
a
was present in the manner set out in Section 1 (2) and (3)."
167. Certain principles have
been laid down by the Supreme Court of Appeal in regard to the
approach to POCA prosecutions.
In
Eyssen v The State
[2009] 1 All SA 32
(SCA) the court considered the criminal conduct of
members of a street gang known as "The Fancy Boys" which
was habitually
involved in housebreaking and robbery in the Cape
Peninsula. The appellant was charged and convicted in this Division
with contravening
both Sections 2(1)(e) and (f) of POCA and on appeal
the court discussed the import of these sections and the interplay
between
them:
"[5] The
essence of the offence in subsection (e) is that the accused
must conduct (or participate in the conduct of)
an enterprise's
affairs. Actual participation is required (although it may be
direct or indirect). In that respect the subsection
differs from
subsection (f), the essence of which is that the accused must know
(or ought reasonably to have known) that another
person did so.
Knowledge, not participation, is required. On the other hand,
subsection (e) is wider than subsection (f) in that
subsection (e)
covers a person who was managing, or employed by, or associated with
the enterprise, whereas subsection (f) is limited
to a person who
manages the operations or activities of an enterprise.”
168. After reciting the
definition of "enterprise", the learned judge of appeal
continued as follows:
"[6] .....It is difficult to
envisage a wider definition. A single person is covered. So it seems
is every other type of connection
between persons known to the law or
existing in law; those which the Legislature has not specifically
included will be incorporated
by the introductory word 'includes'.
Taking a group of individuals associated in fact, which is the
relevant part of the
definition for the purposes of this
appeal, it seems to me that the association would at least have to be
conscious; that there
would have to be a common factor or purpose
identifiable in their association; that the association would
have to be ongoing;
and that the members would have to function as a
continuing unit. There is no requirement that the enterprise be
legal, or
that it be illegal. It is the pattern of racketeering
activity, through which the accused must participate in the affairs
of the
enterprise that brings in the illegal element; and the
concepts of 'enterprise' and 'pattern of racketeering activity' are
discreet.
Proof of the pattern may establish proof of the enterprise,
but this will not inevitably be the case.
[7] It is a
requirement of the subsections in question that the accused in
subsection (e).... must participate in the enterprise's
affairs. It
will therefore be important to identify what those affairs are. It
will also be important for the State to establish
that any particular
criminal act relied upon, constituted participation in such
affairs..... The participation may be direct, or
indirect."
169. Turning to the aforesaid
definition of "pattern of racketeering activity" the
learned judge of appeal comments
as follows:
"[8] .....In
my view, neither unrelated instances of proscribed behaviour, nor an
accidental coincidence between them constitute
a 'pattern' and the
word 'planned' makes this clear.
[9] The
participation must be way of ongoing, continuous or repeated
participation or involvement. The use of the word 'involvement'
as
well as the word 'participation' widens the ambit of the
definition. So does the use of the words 'ongoing,
continuous or repeated'. Although similar in meaning, there are
nuances of difference. 'Ongoing' conveys the idea of ‘not
as
yet completed'. 'Continuous' (as opposed to 'continual') means
uninterrupted in time or sequence. 'Repeated' means recurring.
[10] Some
limitation is introduced into the definition by the
requirement that the participation or involvement must
be in any
Schedule 1 offence. The limitation is, however, not substantial.
Schedule 1 lists a considerable number of offences,
both statutory
and common law, and includes (as item 33):
'Any offence the
punishment wherefore may be a period of imprisonment exceeding one
year without the option of a fine.’"
170.
More recently in
S v Prinsloo and Others
2016(2) SACR 25 (SCA), a case involving a so-called "Ponzi
Scheme", the Supreme Court of Appeal followed the
interpretational
approach set out in
Eyssen
.
"[57] We are
in agreement with counsel on behalf of the State that, in
construing the provisions of POCA, and in particular
Section 2(1)(e)
and (f), a liberal or broad construction is to be preferred. This
would be in accordance with the broad objectives
of POCA set out in
the preamble thereto. In
National
Director
of
Public Prosecutions and another v Mohamed NO
and others
2002(4) SA 843 (CC) para’s 14 to 16 the Constitutional Court,
with reference to its preamble, emphasised the importance of
POCA to
curb the rapid growth of organised crime, money laundering, criminal
gang activities and racketeering which threatens the
rights of all in
the Republic and presents a danger to public order, safety and
stability, thereby threatening economic stability.
To curtail
the ambit of Section 2(1)(e) and (f), as suggested by counsel for the
first accused, would in our opinion, be
contrary to the intention of
the legislature......
[61] This
brings us to count 2 i.e. the contravention of Section 2(1)(e) of
POCA. What the State was required to prove
is that, whilst
managing an enterprise (the scheme) the first accused directly or
indirectly participated in the conduct of the
scheme's affairs
through a pattern of racketeering activity. As emphasised
above, this court in
Eyssen
(para 5) held that the essence of the offence referred to in Section
2(1)(e) is actual participation (be it direct or indirect)
in
the enterprise's affairs, as opposed to knowledge, not
participation, which is the essence of an offence in terms of
Section
2(1)(f)......
[63] We
should add that, as in the case of count one, counsel for the first
accused submitted that the State failed to prove
that she had the
necessary criminal intent in the form of
dolus
to contravene the provisions of Section 2(1)(e) of POCA. In our view,
this submission failed to take proper account of the definitional
elements of this statutory contravention, i.e. participation
in the affairs of the enterprise through a pattern of racketeering
activity. As emphasised in
Eyssen
,
participation in the affairs of the enterprise is the offence.
Kruger
at 13, observes that an accused “is guilty by virtue of (a)
being involved in an enterprise being part of the group of
racketeers,
and (b) being involved in the commission of two or more
predicate offences' listed in Schedule 1 of POCA.
[64] To
summarise, it is now well-settled that the essence of the offence in
terms of Section 2(1)(e) of POCA is participation
through a pattern
of racketeering activity and not knowledge. Once it is proved
that the accused has participated in the
conduct of an enterprise's
affairs through a pattern of racketeering activity, i.e. by
committing two or more predicate offences
listed in Schedule 1 of
POCA, he or she is guilty of a contravention of Section 2(1)(e) of
POCA. There is no need for a further
enquiry as to an
additional
mens rea
requirement over and above the
mens rea
required by the predicate offences. "
171. The case of
S v Dos
Santos and Another
2010(2) SACR 382 (SCA) concerned a diamond
smuggling syndicate operating in the West Coast town of Port Nolloth.
The main
perpetrators were charged with various offences under
the Diamonds Act of 1986 and POCA and duly convicted in this
Division. On
appeal to the Supreme Court of Appeal, a number of
issues fell for determination by that court. In his judgment Ponnan,
JA, made
the following remarks regarding the application of POCA to
the facts before the court:
"[39] For a
pattern of racketeering activity, POCA requires at least two offences
committed during the prescribed period. In
this court, as indeed the
one below, counsel argued that the 'offence' in that context meant a
prior conviction. Absent two prior
convictions, so the submission
went, POCA could not be invoked. Underpinning that submission is the
contention that an accused
person must first be tried and convicted
of the predicate offences (here the charges in terms of the Diamonds
Act) before he/she
could be indicted on the racketeering charge in
terms of POCA. Allied to that submission is the argument that in this
instance
there has been an improper splitting of charges, resulting
in an improper duplication of convictions.
[40] In my view,
whether to prosecute and what charge to file or bring before a before
court are decisions that generally rest in
the prosecutor's
discretion. Nor would it be necessary, it seems to me, for the court
to return a verdict of guilty in respect
of the predicate offences
for the POCA racketeering charges to be sustained. It may well
suffice for the court to hold that the
predicate charge has been
proved without in fact returning a guilty verdict. But that need not
be decided here......
[43]
Prosecutions under POCA, as also the predicate offences, would
usually involve considerable overlap in the evidence,
especially
where the enterprise exists as a consequence of persons associating
and committing acts making up a pattern of racketeering.
Such
overlap does not in and of itself occasion an automatic invocation of
an improper splitting of charges or duplication
of
convictions. As should be evident from a simple reading of the
statute, a POCA conviction requires proof of a fact which
a
conviction in terms of the Diamonds Act does not......
[45] [
S
v Whitehead and Others
2008(1) SACR 431
(SCA)] recognised that a single act may have numerous criminally
relevant consequences and may give rise to numerous
offences. Our
legislature has chosen to make the commission of two or more crimes
within a specified period of time, and
within the course of a
particular type of enterprise, independent criminal offences. Here
the two statutory offences are
distinctly different. Since
POCA substantive offences are not the same as the predicate offences,
the State is at liberty
to prosecute them in separate trials or in
the same trial. It follows as well that there could be no bar to
consecutive sentences
being imposed for the two different and
distinct crimes, as the one requires proof of a fact, which
the other does not.
Although a court in the exercise of its general
sentencing discretion may, with a view to ameliorating any undue
harshness, order
the sentences to run concurrently. Thus by providing
sufficient evidence of the five predicate acts, the State has
succeeded in
proving the existence of the 'racketeering activity' as
defined in POCA."
172. Finally I must refer
briefly to the judgment of the Supreme Court of Appeal in
De Vries
which is reported at 2012(1) SACR 186 (SCA). The case involved a
criminal syndicate which robbed delivery trucks of their valuable
cargoes of cigarettes and then on-sold the bounty to other parties.
After referring to the judgment in
Dos Santos
, the
learned judge of appeal observed as follows:
"[48] In order to secure a
conviction under S2(1)(e) of POCA, the State must do more than merely
prove the underlying predicate
offences. It must also demonstrate the
accused's association with an enterprise and a participatory link
between the accused and
that enterprise's affairs by way of a pattern
of racketeering activity. In light of this, an offence under S2 (1)
of POCA is clearly
separate and discrete from its underlying
predicate offences and in my view, the decision in
Dos Santos
in regard to this issue is undoubtedly correct......
[56] By receiving
the cigarettes for himself well knowing they were stolen, the
appellant made himself guilty of theft as it is
a continuing crime.
By proceeding to use the cigarettes as part of his stock in trade as
a wholesaler as if they were goods lawfully
acquired, and thereby
disguising or concealing the source, movement and ownership of the
cigarettes and enabling and assisting
the robbers to either avoid
prosecution or to remove property acquired in the robberies, the
appellant clearly made himself guilty
of a contravention of S4 [of
POCA]. Doing so involved different actions and a different
criminal intent to that required
for theft. In these
circumstances there was no improper splitting of charges."
THE
APPLICATION OF THESE PRINCIPLES TO THIS CASE
173.
How then do these principles find application in the present case? In
the first place, none of the accused now before
court are any longer
liable to conviction under S2 (1)(f) of POCA. It is only S2 (1) (e)
that remains applicable and nothing more
need be said in regard to
the former.
174.
Further, and in light of the definition of racketeering activity, the
State is entitled to prove a minimum of two contraventions
of either
S18(1) of the MLRA or Regulation 39(1)(a) of the MLRA Regs, and,
provided the contraventions are shown to be causally
linked to the
enterprise in question, ask the court to find that an accused who is
guilty of such contraventions is then to be
regarded as a racketeer
who has participated in a pattern of racketeering activity and is
liable to conviction under S2(1)(e) of
POCA. Of course, the State
must establish not only that an accused actually committed an MLRA
offence but that he had the requisite
criminal intent (or
mens
rea
) to sustain such a conviction.
175.
At least one such MLRA contravention must have taken place after 21
January 1999 which is the date of the promulgation
of POCA while a
second contravention may have been committed after such promulgation
or within a ten year period preceding the
specific contravention
after 21 January 1999 relied upon by the State. Having regard
to the indictment, the State has relied
on illegal activities
commencing in 2004, and it may then notionally ask the Court to have
regard to acts of racketeering going
back as far as 1994. As a matter
of fact, however, the dates alleged in the indictment range between
2004 and 2006 and are dates
obviously falling within the operation of
POCA.
176. Lastly, to secure a
conviction under S2(1)(e) of POCA the State must establish that each
of the accused committed the
respective predicate offences with the
knowledge that there was an illegal enterprise in existence, or to
use the language of
Eyssen
, it must be shown that the accused
consciously participated in the racketeering activity attributable to
him.
THE
UNLAWFUL ENTERPRISE
177. The Court referred earlier
to the fact that there did not appear to be any dispute regarding the
existence of an enterprise
as required for the purposes of the
application of POCA and we have found that the enterprise was
undoubtedly controlled by Chao.
In summary, we consider that it was
he who:
recruited
Africa as his administrative assistant-cum-office manager to attend
to all the necessary paperwork, to manage the entire
logistics
chain, to oversee the delivery of product to the cold storage
facilities and the loading of the containers prior to
transhipment;
lawfully established 2 corporate
entities (Rapitrade and Syroun) as the public face of the
enterprise;
remained
the so-called "guiding mind" of these corporations,
notwithstanding the appointment of Africa as the sole director
and
shareholder of each of them;
gave
instructions as to when batches of abalone were to be stored at the
cold storage facilities, loaded into containers and shipped
overseas;
effected
payment of the expenses of the corporations where necessary, and
ultimately received the benefits of
the product once exported.
All
of these activities suggest that the affairs of the enterprise were
conducted with a high degree of planning as contemplated
in the
definition of "pattern of racketeering activity".
178.
The core business of the enterprise was obviously the export of
abalone, given its extraordinarily high value. We
consider that
the export of pilchards may be regarded as incidental to the core
business given that its ultimate purpose was to
mask the abalone once
loaded into a container, rather than to constitute a separate source
of revenue. To appreciate the
illegality of the business of
Chao's enterprise, it is necessary to consider how a lawful business
had to operate.
179.
The evidence of the MCM officials, and in particular Mr Angus
MacKenzie establishes that during the period in question
(2004 -
2006) the export of abalone was strictly controlled by government
through the issue of permits. This was done on the basis
that the
Department of Agriculture, Forestry and Fisheries (DAFF), of which
MCM was a unit, would annually fix the quantity of
abalone that could
lawfully be harvested for commercial exploitation. This was
known as the "Total Allowable Catch"
or "TAC" and
was fixed with a view to maintaining a sustainable natural resource.
During 2004 the TAC for abalone
was 237 tons and in 2006 it
dropped to 125 tons.
180.
Commercial ventures interested in lawfully exploiting abalone were
required to apply to the DAFF for the right to fish
for abalone and
if successful would be issued with a permit which fixed the total
tonnage of abalone (with the shell on and before
shucking) which the
permit holder was permitted to harvest during the year in question.
It further designated the particular coastal
zone in which the
abalone could be harvested.
181.
A permit holder was required to deliver the abalone to a designated
"fish processing establishment" (FPE) where
it was to be
cleaned and prepared for sale commercially. The permit holder
could elect to either sell the catch to the FPE,
or to instruct the
FPE how the product should be processed before the permit holder
personally disposed of it. No processing of
abalone outside of a
licensed FPE was permitted.
182.
Mr Mackenzie said that the illegal commercial exploitation of abalone
was rife and in the years when the TAC was of the
order of 100 to 200
tons, more than tenfold that quantity was poached and shipped, mostly
to the Far East. He went on to
explain that there had
previously been a dispensation in terms whereof recreational divers
could take out a limited number of abalone
per day for personal
consumption provided they were in possession of a licence issued
through MCM. However, this was stopped
completely in 2003
because of the scarcity of the resource due to poaching which was
said to have increased at an alarming rate.
183.
The evidence of the MCM officials establishes that neither Chao, nor
Rapitrade nor Syroun were ever issued with permits
to fish for
abalone nor to conduct an FPE and it follows from this that any
abalone which was possessed or controlled by any of
these entities
for commercial purposes was in contravention of Regulation 39(1)(a)
and therefore unlawful. Similarly, any
FPE's conducted by these
entities, or on their behalf, were unlawful.
184.
It was suggested in cross-examination of the MCM witnesses by Mr
Uijs, SC, on the instructions of accused 4, that Chao
may have bought
from MCM abalone which had previously been seized and forfeited to
the State and that his business may thus have
been conducted
lawfully. The MCM evidence confirmed that such purchases had
been permitted at a stage in the late 1990's
and early 2000's but
that the practice had been without a legal basis for a protracted
period thereafter and that the auction of
such product only
recommenced in October or November 2006 - after the various raids
relevant to this case had taken place. Certainly,
no such sales
had taken place in the period 2004 to 2006.
185.
But whatever the factual position may have been, possession per se of
such recycled abalone would nonetheless have been
subject to the
issue of a permit contemplated in terms of Regulation 39(1) (a) and
the processing thereof subject to the necessary
permit issued in
terms of Section 18(1)(b) of the MLRA. No admissible evidence
has been adduced to rebut the MCM evidence
to establish that Chao,
Rapitrade or Syroun were not in possession of any such permits, thus
confirming the illegality of the operations
of the enterprise.
186.
Looking at the evidence sequentially one sees the following scenario.
Freshly shucked abalone packed in large,
clear plastic bags was
available for collection at the home of one Michael Withers in
Somerset West. Acting on the instructions
of a person of
Oriental extraction known to him only as Chris, David Ie Roux
regularly collected such bags and delivered them to
a prearranged
drop-off point in Bellville not far from the home of accused 4 where
the latter admits that the product was stored
and later processed on
behalf of Chao. On one occasion in February 2006 a quantity of
similar product was delivered by Le Roux
to accused 3 in similar
fashion in Stellenbosch at a time when a processing facility was
operating on Foxhole Farm in the Stellenbosch
district.
187.
During the period late 2004 to 2006 fresh abalone processed initially
in accused 4's garage in Hoheizen, and later at
the house rented in
Durbanville, was transported through to two cold storage facilities
in either the Cape Town docks or Hout Bay
harbour where they were
stored on behalf of Rapitrade, before being packed into a container
and exported on behalf of that corporation
to the Far East, initially
consigned to addresses in Hong Kong.
188.
During 2006, at the time that fresh abalone was being processed at
Foxhole Farm, Faraday Street, Hercules Street and
Volmoed farm,
Rawsonville, deliveries of the product were made to the V&A cold
storage facility in Cape Town docks where it
was stored on behalf of
Syroun and Rapitrade before being similarly containerised and
exported to the East. In so far as
the evidence establishes
beyond reasonable doubt a continuous line of supply and production,
culminating in a multitude of regular
containerised exports of
abalone during the period 2005 to 2006, it can be concluded with the
requisite degree of certainty that
the activity of the enterprise was
"ongoing" as contemplated in the definition of "pattern
of racketeering activity".
189. In the circumstances we are
satisfied that the State has established beyond reasonable doubt that
the commercial operation
conducted by Chao utilising the businesses
of
inter alia
Rapitrade and Syroun constituted an unlawful
enterprise as contemplated under POCA. What remains is for us
to consider the
potential contravention of the predicate offences by
each accused, the potential involvement of each accused in this
"pattern
of racketeering" and the criminal consequences
thereof, if established. Before we can convict an accused of a
predicate
offence we must be satisfied beyond reasonable doubt that
each such accused had the requisite criminal intent to commit the
crimes
with which he has been charged. That brings us to the
element of
mens rea
.
MENS
REA
190.
Before any of the accused can be convicted of the predicate criminal
offences they face the State must establish his
culpability and show
that the accused acted with the requisite degree of criminal intent
or
mens rea
.
Such intent may be direct (
dolus
directus
) or indirect (
dolus
eventualis
). In the context of
this case, an accused's criminal intent may fall into either
category. A person may, for example, have
the direct intention to
collect, keep, control or possess abalone for purposes of commercial
exploitation. We note, in passing,
that the offence created in
terms of Regulation 39(1)(a) makes no mention of possession for
purposes of export – only commercial
purposes – and
so any allegation in the indictment to that effect is superfluous.
191.
But it is not only direct intention to possess etc that attracts
criminal liability. For purposes of a conviction
under either
Regulation 39(1)(a) or S18(1), the State is entitled to rely on
mens
rea
in the form of
dolus
eventualis.
Much has been written and
said about
dolus eventualis
in the wake of the decision of the Supreme Court of Appeal in the
Oscar Pistorius case
which is reported at 2014(2) SACR 314 (SCA). For the sake of
this judgment we prefer to have regard to the earlier decisions
of
the SCA in
S v Humphreys
2013(3) SACR 1 (SCA) and
S v Makgatho
2013(2) SA 14 (SCA).
192. In
Makgatho
,
Shongwe, JA, with reliance on
inter alia
Snyman
Criminal Law, 6
th
Ed and Burchell and Hunt
Vol 1
described the position as follows:
"[9] A person
acts with intention in the form of
dolus
eventualis
,
if the commission of the unlawful act or the causing of the unlawful
act is not his main aim, but he subjectively foresees the
possibility
that in striving towards his main aim, the unlawful act may be
committed or the unlawful result may ensue, and he reconciles
himself
to this possibility… In other words, it must be shown that a
real – as opposed to a remote – possibility
of that
consequence resulting was foreseen. “
193.
Humphreys
involved a collision of a school bus with a train at the notorious
Buttskop level crossing near Blackheath. In stressing the importance
of proof of subjective foresight, Brand, JA, added the following
words of caution:
"[13] For the
first component of
dolus eventualis
it is not enough that the appellant should (objectively) have
foreseen the possibility of fatal injuries to his passengers
as a consequence of his conduct, because the fictitious reasonable
person in his position would have foreseen those consequences.
That
would constitute negligence and not
dolus
in any form. One should also avoid the flawed process of
deductive reasoning that, because the appellant should have foreseen
the consequences, it can be concluded that he did. That would
conflate the different tests for
dolus
and negligence. On the other hand, like any other fact,
subjective foresight can be proved by inference. Moreover, common
sense dictates that the process of inferential reasoning may
start out from the premise that in accordance with common human
experience, the possibility of the consequences that ensued
would have been obvious to any person of normal intelligence.
The next logical step would then be to ask whether, in the
light of all the facts and circumstances of this case, there is
any
reason to think that the appellant would not have shared this
foresight, derived from common human experience, with other members
of the general population."
EVALUATION
OF THE FRAUD CHARGES
194. As indicated at the
beginning of this judgment various of the accused were charged with
the common law offence of fraud.
Accused 1, 3, 8 and 9 were
charged with this offence on counts 60, 65, 71, 80, 84, 87, 91, 98,
110 and 113. Accused
1, 2, 4, 5, 8 and 9 were similarly charged
on counts 52 to 59, 61 to 64, 65, 67 to 70, 72 to 79, 81, 82, 85, 86,
88 to 90, 95,
96, 111 and 112. At the conclusion of the State's
case, and pursuant to the application by the defence in terms of S174
of
the CPA, the following acquittals were granted:
·
Accused 1, 3, 8 and 9 were all acquitted on
count 71;
·
Accused numbers 1, 2, 4, 5, 8 and 9 were
all acquitted on count 96;
·
Accused 2, 4 and 5 were acquitted on count
57; while
·
Accused 3 was acquitted on counts 60, 65
and 67;
·
Accused 1 was also acquitted on charge 114.
195. Turning to the indictment
on the fraud charges the State makes the following allegations:
"In that on or
about the dates mentioned in column 12 of schedule B and at or near
Table Bay Harbour and or Hout Bay Harbour
in the district of Cape
Town and Wynberg, the accused did wrongfully, unlawfully, falsely and
with intent to defraud and to the
prejudice or potential prejudice of
Ebenhaeser Beukes of Customs and Excise and/or the South African
Revenue Services give out
and pretend to Ebenhaeser Beukes of Customs
and Excise and/or the South African Revenue Services that containers
described in column
4 of the schedule exported by the company in
column 3 contained frozen pilchards to the value of the amounts in
column 7.
Whereas in truth
and in fact when the accused gave out and pretended as aforesaid
he/she/they knew that in truth and in fact the
containers contained a
combination of abalone and pilchards. "
196. In the sixth edition of his
authoritative textbook
Criminal Law
at page 523, Professor CR
Snyman offers the following definition:
"Fraud is the
unlawful and intentional making of a misrepresentation which causes
actual prejudice or which is potentially
prejudicial to another.”
In
S v Gardener
2011(1) SA 570
(SCA) at para 29 the Supreme Court of Appeal approved of a
substantially similar definition. The elements of the
crime are
therefore:
(i) a misrepresentation;
(ii) prejudice or potential prejudice;
(iii) unlawfulness; and
(iv) intention.
197.
We are in agreement with the argument advanced by the defence, (in
particular Mr Uijs SC) that the evidence of Meihuizen
and Beukes
establishes that the only document which might contain
misrepresentations to the Department of Customs and Excise was
the
so-called “Bill of Entry Export”. We did not understand
tile State to take issue with this argument.
198.
The Bill of Entry Export (a
pro forma
document bearing the designation “DA 550”) is a statutory
document prepared by a shipper of goods which contain a number
of
important details in relation to a cargo which is to be exported
overseas. These include details of the exporter (with
its duly
issued “customs code”) the consignee, the name of the
vessel on which the container is to be conveyed together
with the
number and date of the voyage, a description of the product with its
appropriate customs tariff code and value and the
name of the
shipping agent responsible for the completion of the documentation.
The DA 550 also contains a block headed "Endorsements"
in
which provision is made for the shipper to tick three discrete boxes
which read "F 178 NOT REQUIRED", "F178 PRODUCED"
and "EXPORT PERMIT NOT REQD". Lastly, there is a block for
the Department of Customs to place its official stamp on the
document, presumably as an indication that it is satisfied with the
contents of the documentation and that the goods described
therein
may be exported.
199.
The evidence in this case given by both Beukes and Meihuizen
demonstrates that the Bill of Entry Export was submitted
to the
Department of Customs at its offices in the Cape Town harbour by
Linmar Shipping in each instance prior to the loading of
a container
for export to the East. And once received, the Department would
subsequently impliedly authorise the export of
the contents of the
container by placing its rubber stamp on the document.
200.
As we understand the evidence, the primary purpose of the document
was to enable the Reserve Bank to monitor the flow
of foreign funds
in and out of the country. The Bill of Entry Export provides for the
disclosure of the value of the goods being
exported and in the event
that such value exceeds R50 000, the exporter is required to furnish
further documentation to the Reserve
Bank to demonstrate that the
proceeds of the export have in fact found their way back into the
Republic. As such the disclosure
of value in excess of R50 000
in 2006 would trigger a paper trail, (the Form 178), from which the
Reserve Bank could then
monitor these flows.
201.
Mr Beukes was an employee of the South African Revenue Service
charged with the investigation of the tax, customs and
excise
implications implicit in the criminal activities involved Project
Mask. He was not a person to whom the Bill of Entry
Export was
customarily submitted and there is no evidence that any such
documentation was in fact ever submitted to him for consideration
at
the time of export. In the circumstances it follows that the
allegation by the State that the misrepresentations which
form the
basis of the fraud charges were made to Mr Beukes is factually
incorrect and such misrepresentations have not been established.
There can therefore be no question of Mr Beukes having been
misled at the time by the manifestly false declarations contained
in
these documents that the containers contained only pilchards whose
transaction value never exceeded R50 000.
202.
However, that is not the end of the enquiry in relation to the fraud
charges. The indictment goes on to allege
that the falsehoods
contained in the Bill of Entry Export were made in the alternative to
the South African Revenue Services. To
the extent that,
according to Mr Beukes, the Department of Customs is in effect a
sub-department within the Revenue Services, it
is fair to say that a
more generalised misrepresentation to SARS can be established on the
evidence. That is that the submission
of a document containing
an obvious false declaration to the customs authorities at Cape Town
Harbour could ultimately be said
to be intended to be a
misrepresentation to the Revenue Services.
203.
Accepting that to be the case, the next enquiry is what prejudice, or
at the very least potential prejudice, was occasioned
to the Revenue
Services by the making of such a false representation? As we
have just said, the purpose behind the declaration
in the Bill of
Entry Export as to the value of the cargo is to enable the Reserve
Bank to track the flow of money in and out of
the Republic. By
fixing the declaration limit at R50 000 per export transaction,
the Reserve Bank was effectively saying
that it was not particularly
interested in the repatriation of the proceeds of smaller exports.
But as soon as the cargo
exceeded that amount, said Mr Beukes,
a completely different procedure followed. In such event the
exporting party was required
to complete the F178 form which
necessitated a far greater level of disclosure to the authorities.
204.
Mr Beukes agreed with defence counsel that there were no customs or
excise duties payable on exports out of South Africa.
The
purpose of the F178 procedure appears to us to have been to trigger a
situation whereby the Reserve Bank was alerted
to the necessity to
monitor amounts which were required to be repatriated for the benefit
of local exporters. Ultimately,
the benefit to the fiscus would
have been income tax potentially payable to the State by such
exporting entities. The prejudice
occasioned by the failure to
trigger that process would have been to the Reserve Bank in not being
able to monitor the repatriation
of monies which would otherwise have
had to be paid into a South African bank account. And, I
suppose, it, could be said
that ultimately the revenue might be
prejudiced by the failure to pay income tax where same was due to it.
205. Our law is clear concerning
the necessity for precision in the drafting of the indictment in a
complex case such as the
fraud alleged here. The State is
obliged to produce proof, not that the accused have committed fraud,
but that they have
committed fraud in the manner alleged in the
indictment. See in this regard
S v Heller and Another
1964(1) SA 524 (T) at 535H where the learned judge of appeal noted
that the question was whether the State had:
"…adduced
prima facie
proof not merely that the accused have committed fraud but have
committed it in the manner alleged in the indictment, because
precision in pleading and charging fraud is generally, and
a
fortiori
in a case of this complexity
and magnitude, essential."
206. In our view the State's
case on the fraud charges is fundamentally flawed in three respects:
1. It has failed to make the correct
allegations in the indictment as to the nature of the representations
which were potentially
misleading and which caused, or were likely to
cause, prejudice.
2. It has failed to correctly identify
the party (or parties) prejudiced or potentially prejudiced by the
misrepresentation.
3. The evidence tendered by the State
does not sustain the allegations in the indictment, inadequate as it
maybe, that Beukes on
behalf of the Department of Customs and Excise
and/or the South African Revenue Services suffered any prejudice or
potential prejudice
as a consequence of the misrepresentations.
In light of these findings it is not
necessary to go into the potential contravention of any of the fraud
charges by the individual
accused.
CONTRAVENTION
OF THE PREDICATE OFFENCES
207.
We will now proceed to discuss each of the accused's potential
involvement in the predicate offences under the MLRA and/or
the MLRA
Regs. In that context it is necessary to briefly say something
about the credibility and reliability of the witnesses.
Everyone
who testified in this case was asked to recall events going back
eight to ten years or even more. No doubt
the State witnesses
were able to refresh their memories through perusal of their witness
statements taken by the police. However,
these are notoriously
inaccurate and unreliable (
R v Gumede
1949(3) SA 749 (A) at 757). In our view, the necessary leeway must be
allowed for lapses of memory and deviation from earlier statements
when reviewing the evidence.
208.
An overall analysis of the evidence is somewhat hamstrung by the
absence of two of the key role-players in this matter
– Chao
and Ku. There can be little doubt that had they been present
and represented in these proceedings cross-examination
on their
behalf, and their own testimony, might have revealed a different take
on matters.
209. Generally we are satisfied
with the quality of the evidence presented. What concerns us is
not the veracity of
any of the witnesses but their reliability. That
having been said, we are cautious about the credibility of only a few
of
the witnesses. We have already mentioned Salvin Africa and
must add to that list the names of AJ Theunissen, Adam Wildschutt,
Melville Meihuizen and Captain Brink.
Theunissen
may have been hamstrung by the fact that he was not offered S204
protection and so answers which may have been potentially
self-incriminatory might be compromised.
Adam Wildschutt was bombastic and
aggressive towards defence counsel, yet when he addressed the State
and the Court he was more
than civil enough. This may be a
sign of defensiveness on his part.
Melville
Meihuizen was less than satisfactory as a witness. We have some
reservations about his proclaimed ignorance of the contents
of the
containers that he shipped out on behalf of Rapitrade and Syroun.
In addition, he demonstrated a tendency for collaboration
in
illicit dealings when he cooperated with Africa in the rendering of
inflated invoices to Chao to enable Africa to skim some
additional
commission off his boss. Perhaps he too would have benefited from a
warning under S204.
Brink
demonstrated a tendency to cut corners and bend the rules of
standard police procedure and as we shall show later he may
have had
exhibited bias towards certain of the accused.
210.
Mr Mellor suggested that we should have concerns about the evidence
of David Ie Roux as he was once a policeman in the
apartheid era
Security Branch. The submission is without merit: a
person's erstwhile odious employment status is no
basis per se for
disbelieving him. The hangman's evidence is as potentially as
credible as the priest's. As it was
we observed Le Roux as a
cautious, somewhat nervous, witness who was fully alive to the
dangers of testifying in this matter. Lydia
Wildschutt, too, was
somewhat timid and reluctant as could be expected of someone called
upon to testify against a family member
with a self-confessed history
of direct involvement in the abalone trade.
211. Also, we are alive to the
fact that lay witnesses may have been reluctant to testify in a
matter such as this, given
the perception of the ruthlessness of the
notorious Chinese Triad gangs who involve themselves in all manner of
illegal smuggling
activities. Indeed accused 1 alluded to this
in his evidence when he related an anecdotal story about the death of
someone
who had crossed such a gang in Cape Town and had been found
dead in the Liesbeeck River. We do not wish to be misunderstood
on this score. We are not saying that there were any such threats to
witnesses, perhaps just a perception on their parts.
ACCUSED
NO 1 - PHILLIP JAMES MILLER
212.
The State witnesses who gave evidence regarding accused 1 were Salvin
Africa, Colin du Plessis, Barend Smal aka Bennie
and Captain Brink.
Miller was also referred to by accused 8, Desmond Pienaar, when
he testified in his defence.
213.
As pointed out earlier on in this judgment, Miller initially elected
to close his case without tendering any evidence
in his defence.
However, after hearing the argument presented by the State
during February 2017 in relation to his alleged
involvement in this
matter, he had a change of heart and successfully applied for the
reopening of his case. In the amplified
affidavit in support of
the application to re-open, Miller explained that after he had heard
the State's argument in relation to
his cell phone communications
during 2006, he was of the view that the prosecution had got the
wrong end of the stick and had drawn
the incorrect inferences from
those communications. Clearly then what the accused sought to
do was to set the record straight
and to place before the Court the
facts as he believed them to be. In addition to testifying
personally, Miller called Cyril Akers,
the manager of Sea Freeze in
Hout Bay, who had previously been on the list of State witnesses and
was made available to the defence
at the close of the State case.
214.
We are of the view that Miller's evidence must be carefully
scrutinised given that he decided to testify at a time when
the
proverbial shoe was pinching and in circumstances where he was
clearly endeavouring to remove the source of his discomfort,
so to
speak. See
S v Felthun
1999(1) SACR 481 (SCA) at 487a-b. And when we evaluate the evidence
presented on behalf of accused 1 we must have particular regard
to
his case as put up by counsel in the cross-examination of the State
witnesses, and when he took the witness stand any potential
deviation
in evidence from the earlier instructions which he would have given
to his counsel for purposes of cross-examination.
215.
The testimony of Du Plessis, Smal, Brink and Pienaar was not
challenged by Miller but that of Africa was, and so it makes
sense to
commence with that testimony, much of which has already been set out
in the overview of this witness's evidence. Miller
confirmed in
his evidence in chief the manner in which he had got to know Africa
over the years in his capacity as a former cold
store manager at
Commercial Cold Storage. It was clear that they had had an
amiable working relationship previously and that
Miller was initially
well-disposed to Africa. Miller knew that Africa had left
Commercial under a cloud and was aware that
he was in straitened
times. He described how Africa arrived unannounced at Lakeside
one Saturday where he was coordinating
a gathering of the local naval
cadets and confirmed that he knew that Africa was unemployed, was
desperate for money and was literally
prepared to do anything to put
food on the table. Miller said he told Africa that there was a
possibility that he may be
able to find employment and said that he
would revert to him.
216.
A week or two later Miller contacted Africa again and informed him of
the prospect of employment, so it later turned
out, with Chao. A
meeting took place at Miller's office which was located in a
converted double garage at his erstwhile home in
Tokai. Miller
introduced Africa to Chao and says that he left the two of them to
discuss things on their own while he went
about his business. He
clearly wished to convey to the court that he did not participate in
those discussions at all. Nevertheless,
he told the court in
his evidence in chief that Chao required an administrative assistant,
(Miller called the position "a
girl Friday") to assist with
the processing of documentation at his factory in Montague Gardens,
which was then still involved
in the manufacture of furniture from
railway sleepers.
217.
In this evidence we see a deviation from the cross-examination of
Africa by Ms Joubert where it was put on more than
one occasion that
Miller knew that Chao was looking for assistance in his fish
exporting business. In fact, it was put to
Africa that Miller
had suggested to him before the Tokai meeting on what basis he might
offer to be remunerated for his services
– a fixed salary of R3
000 per month and an additional amount per container. We shall
revert to the materiality of
this digression later.
218.
It is not clear as to when exactly Africa commenced employment with
Chao but it is safe to assume that it was sometime
during the first
half of 2002 probably around Easter. What is not clear either is how,
on Miller's version, Africa came to be saddled
with the
administrative side of Chao's fish exporting business, after
initially having been engaged to help out with the furniture
business. In any event, Miller testified that he helped Africa
purchase the basic office equipment, computer, printer and
a fax
machine, necessary to do the work which Chao required of him. He said
that at the request of Chao he took Africa to a branch
of Cash
Converters and paid for the goods on behalf of Chao.
219.
It seems that a couple of months after he started working for Chao,
Africa stopped working at the premises in Montague
Gardens and
commenced working from his home in Heathfield. As we said earlier,
the event which lead to Africa discovering about
the true nature of
the cargo was the remark by someone at Sea Freeze – most likely
Akers – about the unsatisfactory
packaging of a quantity of
fish which he, Africa, believed to be jacopever. He went on to
say that when he was told by Chao
that his work would involve
overseeing the necessary documentation required for the purposes of
the export of abalone, he immediately
decided to work from home.
Presumably he wished to physically distance himself from Chao in the
event of police activity.
220.
In any event and as we have said earlier, in June 2002 Chao indicated
that he wanted to house his fish exporting business
in a separate
corporate vehicle. To this end Africa was taken to the offices of a
firm of attorneys in Rondebosch, Spencer Pitman
Incorporated, where
Mr Adam Pitman presented the paperwork for the necessary
establishment of the first of two Pty Limited companies
set up by
Chao. Africa was reflected in the necessary documentation
lodged with the Registrar of Companies as the sole shareholder
and
director of Tresso Trading 588 (Pty) Ltd. It is clear that this
was a nominee position only as Africa had neither the
capital nor the
expertise to set up or run such a company. The documents
relevant to the registration of Tresso 588 record
an attendance with
Mr Pitman on 26 June 2006.
221.
Early in 2003 Africa paid a further visit to Mr Pitman's offices when
a second company, Rapitrade 109 (Pty) Ltd, was
set up by Chao in
similar circumstances. For the sake of completeness we should
point out that a name change was subsequently
effected to Tresso 588
- it then became known as Syroun (Pty) Ltd - but the ownership and
control remained unaffected with Africa
nominally in charge. While
there is no documentation to formally record this name change, the
probabilities suggest that
this occurred in 2005 because the name
Syroun is not to be found in any documentation before the court
before early 2006. Syroun
was used by Africa in May and August
2005 to export abalone from V&A for Mohamed.
222.
In regard to the initial meeting at Mr Pitman's office in June 2002,
Africa said that he was contacted by Miller and
told that it was
necessary for him to visit the offices to sign documents for a
company which Chao was setting up in his, Africa’s
name. This
fact was disputed by Miller in evidence claiming that he was
contacted by Chao one day and asked to do him a favour
by
transporting Africa through to Rondebosch as Africa did not know
where to go. Miller says that he obliged by simply doing
a
business associate a favour and made no further enquiries as to the
purpose of the visit.
223.
During cross-examination on this point Africa was adamant that it was
Miller who told him what the purpose of the visit
was, the clear
import of his evidence being that Miller was in the know from the
very start of the establishment of Tresso 588.
Yet when
cross-examined by the State on this point Miller was all but
convincing. He attempted to persuade the court that
he had no
knowledge whatsoever as to the purpose of the visit and, further that
he made no enquiries of either Chao or Africa as
to that purpose,
either before or after the visit.
224.
We consider Miller's explanation on this point unconvincing. He
is simply not the sort of person who would have
gone about such a
menial chore without knowing what it was about, or at the very least,
by making enquiries of Africa after the
event. He knew Africa's
dire personal circumstances and in particular he knew that Africa had
no prior experience in the
running of a company. In the witness box
we saw in Miller a forthright person prone to curiosity, as we will
show later. He
is one who is not shy to express himself
assertively, if necessary with a little exaggeration; a person of
whom it may be said
“he calls a spade a spade”.
225.
In those circumstances we consider that basic human behaviour and in
particular Miller's own curiosity would have led
to him conducting
himself as Africa testified. Moreover, when we bear in mind
that Africa conceded under cross-examination
that it was possible
that Miller did not know at that time that Chao's fish exporting
business involved dealing in illegal abalone,
Miller's denial in the
witness box of the reason for the visit to Pitman's offices becomes a
curiosity of its own to which we shall
revert later.
226.
Miller testified that he was well known in the commercial fishing
fraternity in Cape Town, particularly for his ability
to source
pilchards for use on tuna fishing vessels. He claimed to be
known as the local "Pilchard King", but it
was apparent
from his evidence that he traded in various other varieties too.
Miller too, like Africa, has a nose for a deal and
if there was money
to be made, for example by taking a modest commission from both
supplier and purchaser, he would do so.
227.
In 2004 FTE ran into cash flow problems when a purchaser failed to
pay for a consignment of fish destined for Angola.
The result
was that Miller's company was liquidated, it would seem sometime
around October of that year. Miller's personal
solvency was not
directly affected by the collapse of FTE and there were no
suretyships that were called up. But, of course,
it resulted in
his source of personal income being depleted. Miller described
this time as the worst years in his life but
he continued to put
deals together, buying and selling fish as a sole proprietor.
228.
Miller explained that early in 2005 he entered into what can
conveniently be termed a joint venture with two other participants
in
the local fishing trade in Hout Bay, namely Colin du Plessis, who
testified for the State, and his business partner, a certain
Steve
Meyer. Du Plessis and Meyer had also run into some problems in
an earlier venture of theirs and started a business
known as “Pesca
Atlantico” which they operated out of a part of the premises of
Sea Freeze in Hout Bay harbour. Their
interest at that stage had been
the export of hake to Spain. Acting on the initiative of Miller
they were persuaded to go
into pilchards and to this end Pesca rented
a small office at Sea Freeze and stored their fish in the freezer
rooms at Sea Freeze.
Miller was paid an agreed commission by
Pesca on the sale of such fish to his clients.
229.
Du Plessis, who confirmed that the timeframe was end 2004 into 2005
explained to the court that with the assistance of
accused number 1,
Pesca brought in large quantities of inferior grade pilchards which
were offloaded on the quayside at Hout Bay
by local vessels and then
packed and frozen in galvanised steel trays of either 5 or 10 kg
size. The frozen product, called a "jumble
pack" after the
contents of the pans, neatly filled the cardboard boxes into which
they were packed after freezing and removal
from the pans. The
packing of the trays was done by casual staff at Sea Freeze who were
shown by Miller how the packing should
be done.
230.
Du Plessis said that Miller introduced a client of his called
Rapitrade to Pesca and that he thus got to know Salvin
Africa.
Africa would oversee the packing of containers of fish at Sea
Freeze and Pesca would provide as many cartons of jumble
pack (which
was referred to in the documentation by the acronym "JP")
as Africa had previously ordered. Du Plessis
confirmed that
quantities of other product which it seems he believed was fish also
contained in 10 kg cardboard boxes, were delivered
to Sea Freeze by
the bakkie load, the vehicles invariably driven by a white male.
These boxes were stored at Sea Freeze until
the time came for a
container to be loaded, at which stage the cartons would be retrieved
from the cold store rooms. We know
now that the delivery man
was accused 4 and that the product was in fact abalone.
231.
Miller told the court how the local pilchard industry operated
through the issue of State controlled quotas. He
explained that
there were two big commercial operations in Hout Bay which fished for
pelagic fish with such quotas. The one
was a certain Mike
Stowe, the owner of several vessels who is known to many in the court
room as a former prosecutor, and the other
was Bernard Zive of Snoek
Wholesalers. Stowe's quota in 2005 was said to be of the order
of 800 tons and Zive's around 300
tons.
232.
Miller explained that he negotiated a deal with Zive to purchase his
entire quota which he then on-sold to Pesca. In
that way,
Miller did not need to put up any capital but took a commission from
both Zive and Pesca. As Zive offloaded his
fish in Hout Bay, it
was booked in to Sea Freeze where the fish was packed in 5 or 10 kg
boxes as already described and then stored
in the cold rooms. As
Pesca found buyers for the pilchards, these boxes were withdrawn from
the freezers and collected by
the purchasers.
233.
Miller said that the best quality pilchards were caught during the
colder months of the year and that Zive fished out
his quota by about
August of that year. Some of Stowe's quota was taken by Du
Plessis and Meyer and the proceeds of these
quotas then established
the basis for Pesca's source of supply. Du Plessis said that he
only learned of the illegal export
of abalone when he read about the
raid at V&A in September 2006 in the newspaper.
234.
If one has regard to the various GRV's and GIV's issued by Sea Freeze
in 2005 in respect of product stored on behalf
of Rapitrade, a very
clear pattern emerges. The pilchards which were used to mask
the abalone were invariably referred to
in the documentation through
their source – Pesca – and the abalone mostly as
Rapitrade. We have tallied up the
number of cartons of
pilchards recorded as being ex Pesca in exhibits 2.27e, 2.27k, 2.32,
2.37 and 2.42 and have calculated the
total to be 2997. If this
figure is multiplied by 10, being the kilogram weight per box, a
total of 29 970 kilograms
is arrived as having been supplied to
Africa by Pesca during the period June 2005 to August 2005. This
is roughly the equivalent
of 300 tons of pilchards and that figure
ties in almost exactly with the Zive quota which Miller says he
contributed to the joint
venture.
235.
In the result we are satisfied beyond reasonable doubt that accused 1
was instrumental in facilitating the supply of
300 tons of jumble
pack pilchards to Rapitrade during 2005. We are satisfied too through
the evidence of Africa and accused 4,
Tony du Toit, that those Pesca
jumble packs were loaded into containers which contained varying
quantities of frozen abalone and
were used to mask the abalone to
avoid detection by the authorities.
236.
The question which then must be asked is whether the State has
established Miller's
mens rea
in respect of the counts with which he is charged specifically with
reference to containers packed at Sea Freeze. That question
is
answered by posing the following further question: Did Phillip
Miller know that there was abalone in the containers which
were
packed by Africa at Sea Freeze and did he realise that the pilchards
which he was supplying via Pesca were being used to mask
that
abalone? Alternatively, can it reasonably be inferred from all
the relevant evidence that Miller had the subjective
foresight, when
providing pilchards to Rapitrade at Sea Freeze, that an unlawful act
may have been committed by Rapitrade, or that
an unlawful result may
have been caused, and that he reconciled himself with that
possibility.
237.
There are 2 pieces of evidence which are relevant to this enquiry.
The first is that of Barend Petrus Smal aka
Bennie. SmaI is a
sea fisheries inspector with MCM and has been for many years. It
later transpired through the evidence
of Miller that he had run a
scuba diving academy which was fortuitously attended by
inter
alia
Smal and Brink. Smal
testified that in the 1990's he was stationed in Hout Bay and had got
to know Miller. He said
that in 2004 while he was stationed at
the MCM offices in Sea Point, he had returned to Hout Bay one evening
to enjoy a drink at
the local yacht club. There he encountered
accused 1 and the two of them struck up a conversation as old friends
do.
238.
Smal said that Miller confided in him that he had been approached by
a Chinese man who was involved in the export of
abalone and who had
asked him, Miller, to assist with the packing of abalone in amongst
pilchards which would be used as a decoy.
Miller told Smal that
he would alert him if the Chinese man contacted him again. SmaI
said that he reported the conversation
to his senior, Keith Thompson,
but that nothing further transpired and that he had not heard again
from Miller. Smal was
clear that the conversation took place
towards the end of 2004 and was able to fix it in time. He said
that in November 2004
he had been transferred to a specialised unit
dedicated to the prevention of abalone poaching and that the
discussion had taken
place after that.
239.
The cross-examination of this witness by Ms Joubert was short and to
the point. Importantly, she indicated that
accused 1 did not
dispute the conversation with Smal and went on to add that Miller
would say that he had no recollection thereof
-
"Hy
onthou dit nie maar ontken dit ook nie."
(Transcript
page 2186 line14). In terms of the approach in
SARFU
the State was entitled to regard this point as not in issue.
240.
Later in the witness box Miller tried to recant on this concession by
his counsel by suggesting firstly that although
he could not recall
the discussion, he simply believed that it was inconceivable that he
could have said so. And when taxed
on his attitude now by Ms
van der Merwe under cross-examination he went so far as to suggest
that perhaps Smal had an axe to grind
as he, Miller, had failed him
during his scuba diving test.
241.
In argument Ms Joubert speculated that on the probabilities the
conversation must have been in late 2005 and not 2004
and that Smal
was therefore patently out with the dates. In light of the
concession in the cross-examination of Smal it is
not open to counsel
to argue the contrary. In her reply Ms Heeramun for the
prosecution, countered that had the challenge
been properly laid down
in terms of
SARFU
the State might have considered calling Thompson to rebut the
suggestion of a recent fabrication. We are under no
misapprehension
in relation to this point. We are satisfied
that there was such a conversation and that it took place towards the
end of
2004.
242.
The second piece of evidence comes from the mouth of the accused
himself. In his evidence-in-chief given in February
2017 he
explained that towards the end of 2004 he was at Sea Freeze
discussing the setting up of the Pesca joint venture with du
Plessis.
From the office where they were talking Miller says he saw an
unmarked bakkie driven by white male offloading 10kg
cardboard boxes
which were being taken to the cold store. Miller said that he
observed that the product was not refrigerated
on the bakkie which
had neither a canopy nor a refrigeration unit on the back. He
found this strange as he would have expected
frozen produce to have
been delivered in a refrigerated vehicle of sorts. There can be
little doubt now that Miller was witnessing
one of accused 4's
deliveries of abalone to Sea Freeze.
243.
Miller says that curiosity got the better of him and he later
wandered over to where the boxes were standing on the platform
in the
cold store. He looked at a label attached to the batch of boxes
and saw the name of Rapitrade as the client on whose
behalf the
product was being stored. He then prised open a flap on one of
the boxes to have a peek inside and to his horror,
(he now says),
discovered that the product was abalone. He testified that he
thereafter contacted Africa telephonically and
read him the riot act
regarding the dangers of illegal abalone smuggling. Miller
testified that Africa assured him that he
was only busy with a small
deal of his own on the side.
244.
In her continuation of the cross-examination of Africa on 2 February
2015, (after the matter had stood down in October
2014 to accommodate
the withdrawal of Mr Theunissen), Ms Joubert dealt with this incident
and put her client's version of events
to Africa. That version
was largely in accordance with Miller's subsequent evidence-in-chief.
However, there is one
fundamental difference between the
cross-examination of Africa and the evidence-in-chief of the accused.
245.
Ms Joubert put it to Africa that her instructions were that the
discovery of the abalone occurred towards the end of
2005 and that
that fact was the immediate cause of his decision to stop supplying
Rapitrade further with pilchards. Miller
on the other hand
testified-in-chief that the incident occurred when he and Du Plessis
were discussing establishing their joint
venture and he did not seek
to use it as a justification for the termination of his relationship
with Rapitrade. As a matter
of fact those discussions with du
Plessis could only have taken place late in 2004 after the collapse
of FTE and when Miller was
looking around for alternative sources of
income.
246.
Under probing cross-examination by Ms van der Merwe, Miller made a
meal of explaining the alleged discovery of the abalone.
At one
stage he made the startling claim that he had first heard about
Rapitrade in court during the course of these proceedings.
That
suggestion was manifestly false for two reasons. Firstly, Du
Plessis had earlier testified that Miller had introduced
Rapitrade,
then an existing client of his, to Pesca as a client in 2005 and that
Pesca thereafter regularly sold pilchards to Rapitrade.
That
allegation was not challenged by Miller during the cross-examination
of Du Plessis. Secondly, Miller testified
that it was the
discovery of Rapitrade's name on the box of abalone into which he had
peeked that caused him concern and led to
the call to Africa. He
knew that Africa represented Rapitrade and it was for that reason
that he said he confronted Africa
and warned him off.
247.
For the sake of completeness we should add that under
cross-examination by Ms Joubert Africa denied any such remonstration
or warning on the part of Miller. He said that the incident
simply did not occur. His evidence throughout was that,
as far
as he was concerned, Miller was aware from the outset that abalone
was involved and that it was being masked with pilchards.
248.
We have to say that Miller, whose evidence we have already said must
be carefully scrutinised because of the stage in
the proceedings at
which was tendered, was not a good witness. He came across as a
forthright person and one who speaks with
a measure of authority and
is at pains to offer the questioner an explanation. I suppose
it could be said that he talks too
much and thereby exposes himself
unnecessarily to cross-examination. In any event there were a
number of instances where
he blatantly contradicted himself in the
witness box as the exchange on his ignorance regarding Rapitrade's
existence before this
case started demonstrates.
249.
There are also instances where the cross-examination on behalf of
Miller is at odds with his evidence and that too reflects
adversely
on his credibility. As pointed out earlier, one such example is
to be found in the cross-examination of Africa
regarding the meeting
at Lakeside and the subsequent introduction to Chao of Africa as the
so-called "girl Friday". It
was put to Africa by Ms
Joubert that Miller's case was that Chao was looking for
administrative assistance in his fish exporting
business. In
the witness box however, Miller attempted to distance himself from
the fish exporting business and said that
he understood that Chao was
looking for help in his furniture business. Why, we ask
rhetorically, was it necessary to seek
to avoid being implicated in
anything relating to fish when that was precisely the reason that he
met Chao in the first place?
250.
In addition, Miller's assertion that he did not know what the purpose
of the visit to Pitman's office was is, as we have
said, hard to
understand. So also was his attempt under oath to demonstrate
that he had no interest after the visit in what
had transpired at the
attorney's office. It is so out of character for Miller that we
can only interpret this evidence as
yet another attempt by him to
distance himself from Chao's fishing business.
251.
We are of the view that the two incidents discussed above – the
discovery of the box of abalone and the conversation
with Smal –
each one seemingly innocuous on the face of it, fit neatly into the
mosaic put up by the State. They both took
place towards the end of
2004 and both events establish conclusively that when Miller
initiated the supply of pilchards to Rapitrade
on behalf of Pesca at
Sea Freeze in early 2005, he would have been aware, firstly of the
fact that Africa was involved in the illegal
smuggling of abalone on
behalf of Rapitrade, and secondly that pilchards might be used to
mask the abalone being exported.
252. We are satisfied that
Miller foresaw as a real possibility, that the product being
delivered by Pesca to Rapitrade was
an essential part of the crimes
being committed by Rapitrade, Chao and Africa, to wit the illegal
control and/or possession of
abalone for commercial purposes. The
situation neatly fits the definition of
dolus eventualis
suggested by
Snyman
at p178:
"A person acts
with intention in the form of
dolus
eventualis
if the commission of the
unlawful act or the causing of the unlawful result is not his main
aim, but:
(a) he subjectively foresees the
possibility that, in striving towards his main aim, the unlawful act
may be committed or the result
may be caused; and
(b) he reconciles
himself to this possibility."
253.
The supply of pilchards by Pesca was Miller's main aim. This
was his much needed source of income after the collapse
of FTE in the
form of a commission from both Zive and Pesca on the latter's 300
tons of pilchards, and commission from Pesca in
respect of the 800
odd tons sourced from Stowe and elsewhere. The facts which we have
found to have been established on the evidence
of Smal and Miller
himself demonstrate that Miller could have been in no doubt and
therefore foresaw the real possibility that
Africa was using
Rapitrade to control abalone for commercial purposes and that the
supply of pilchards from Pesca was an integral
part in the illegal
operation. He reconciled himself with the consequences inherent
in his conduct when he took a commission
on each batch of pilchards
delivered to Rapitrade at Sea Freeze.
254. As far as his
actus reus
is concerned we are of the view that Miller's conduct was accessorial
to the commission of the offences under Regulation 39(1)(a)
by
Africa, Rapitrade and Chao. Typically the role of the
accomplice would be akin to the driver of the get-away car at a
bank
robbery – someone who actively furthers the commission of an
offence by others.
Snyman
op
cit
at 266 offers the
following definition of accomplice liability:
“
1. A person
is guilty of a crime as an accomplice if, although he does not
satisfy all the requirements for liability contained
in the
definition of the crime and although the conduct required for a
conviction is not imputed to him by virtue of the principles
relating
to common purpose, he lawfully and intentionally engages in conduct
whereby he furthers the commission of a crime by somebody
else.
The
word “furthers” in Rule 1 above includes any conduct
whereby a person facilitates, assists, or encourages the
commission
of a crime, gives advice concerning its commission, orders its
commission or makes it possible for another to commit
it."
255. In the result we are
satisfied that the State has established the commission of at least
15 predicate offences on the
part of accused number 1 under
Regulation 39(1)(a) of the MLRA Regs and that he is liable to be
convicted on counts 15, 16, 17,
19, 21, 22, 23, 25, 26, 27, 28, 29,
30, 31 and 32. The total weight of the abalone covered by these
counts is 44 080 kilograms
or 44 tons.
ACCUSED
NO 2 - WILLEM JACOBUS VAN RENSBURG
256.
The witnesses who referred to accused 2 (who was throughout referred
to as "Willie") were Africa, Botha, Brink,
AJ Theunissen
and accused 4. Africa said that he got to know Van Rensburg via
Chao who furnished him with the former's cell
phone number, ending in
5069. Africa said that he stored this number on his list of
contacts on his so-called
skelm
phone (a Nokia 8800) under the name "Wayne".
When regard is had to Exhibit 4.16, the spider prepared by
Brink in
respect of the SIM card used in this phone with cell number
ending 6520, it will be seen that the records reflect two
communications
between Africa's daughter's number (0270) and the
"Wayne" number (5069) and a further 15 calls between one of
Africa's
other numbers (1874) and 5069.
257.
This is perhaps an appropriate juncture to digress briefly to deal
with some aspects of Africa's cell phone records and
the use of his
handsets. In his evidence-in-chief Africa explained that he had
had a Samsung phone on contract for many years
and that the SIM card
used on this phone ended with the number 5353. Because he had
known accused 1 over the years, Africa
said that he had stored his
number ending 1666 on that phone under the name "Philip".
When he commenced working
for Chao, Africa said he was
instructed to use a different phone for purposes of anonymity. He
accordingly acquired the Nokia
referred to earlier and customarily
used the SIM card ending in 6520 in it. This was a
pay-as-you-go handset for which airtime
had to be bought and during
the course of the proceedings this phone was distinguished as the
"
skelm
"
phone in recognition of its key role in Africa's nefarious dealings.
258.
In his evidence-in-chief Africa lead the Court to believe that the
Samsung and the Nokia were the only two phones that
he used. However
during his recall after the evidence of Brink it transpired that he
also made use of cell phone handsets
belonging to his wife and
daughter and arguably there may have been as many as five handsets
used during his employment with Chao
with a number of SIM cards used
interchangeably. It is not clear whether each SIM was used in a
different handset or simply
swapped: Africa explained how Chao
advised him to swap SIM cards from time to time so as to ensure his
anonymity. One
of those numbers was said to end in 1874,
another in 0270 which was evidently his daughter's phone, and yet
another in 7328. Brink
explained to the Court how each cell
phone handset has an IMEI number which allows it to be traced with
reference to that number
irrespective of the cell number on the SIM
card inserted in the phone and he said it is therefore possible to
see what calls were
made on the
skelm
phone even when the SIM cards were swapped.
259.
As pointed out earlier, the records from the cell phone providers
include the cell phone number, the SIM card number
which is not the
same as the cell phone number and the IMEI number relevant to any
particular communication made with the handset.
Accordingly, it
is possible to attempt to draw inferences about the identity of the
user of the handset at any given time
by having regard to
inter
alia
either the cell or the IMEI
numbers. As alluded to earlier, the column reflecting the
location of the cell phone tower through
which a call or SMS message
has been routed, enables the Court to draw conclusions about the
geographical locality of the user
of the phone at any given time.
260.
Africa also testified that in addition to having cell phone contact
with accused 2, he met him on one occasion at Chao's
house in
Milnerton. He described Van Rensburg as the driver of a
Mercedes Benz luxury car. It later transpired after
cross-examination, that Africa had not spoken to Van Rensburg on that
occasion but had seen him at a distance. Africa suggested
that
one of the phone calls referred to above was made on an occasion when
a delivery of abalone at the V&A was delayed and
he was advised
by Chao to contact number 2.
261.
A considerable amount of time was spent during this trial in relation
to accused 2's purported denial through counsel
that 5069 was his
number. It was put to State witnesses that accused 2 only ever
used a SIM with cell number ending 1734
and that he only used one
handset (a Nokia 6100) which he had dutifully handed to the police
after arrest. This gallant attempt
to shield accused 2 from any
implication in the affairs of Chao's abalone syndicate fizzled out
when he elected not to enter the
witness box. Not only do we
have the undisputed evidence of Africa that "Wayne" was in
fact "Willie",
as I shall demonstrate anon the records
furnished by Vodacom demonstrate that early in 2002 the 5069 SIM card
was used in the handset
which number 2 admitted was his and in which
he claimed the 1734 number was customarily used.
262.
In addition we have the evidence which was the subject of the ruling
on 16 February 2016 in regard to the admissibility
of exhibits HHH
and JJJ
,
in
which it was demonstrated that the SIM card with cell number 5069 was
at the Maseru Bridge Border Post at precisely the times
that accused
2's passport was presented for entry into, and exit from, Lesotho in
mid-June 2006. To the extent that any ruling
on the
admissibility of documentary evidence such as that contained in those
exhibits is provisional, we must now state that we
are satisfied
beyond reasonable doubt as to the integrity of Africa's evidence
regarding the 5069 number. That being so we
ask rhetorically,
why number 2's phone number was on Africa's list of contacts on his
skelm
phone,
if not for purposes of contact in the course of the illegal abalone
business? And why was he phoned by Africa when
there was a
problem with a planned delivery?
263.
Regrettably, the investigating team only procured a subpoena for the
5069 number and not Van Rensburg's alleged legitimate
number. We
therefore have a limited record of calls made from 1734 and then only
when that number is viewed in the context
of calls to and from other
cellphone users whose records are otherwise before the Court.
Nevertheless there is much to be
gleaned from Brink's spider
relating to 5069, (Exhibit 4.16, which covers the period
5 April 2006 to 10 October 2006),
where, as I have already said,
accused 2 is recorded as having had contact with Africa on 1874 on 15
occasions and on 0270 (Africa’s
daughter's phone) on two
occasions. That spider also shows that 5069 allegedly had
contact with accused 3, Gavin Wildschutt,
on two occasions, he on
8182 and on a further two occasions with Wildschutt on 9811. The
spider also shows that 5069 had
150 communications with accused 4 on
8645, 46 communications with accused 5 on 7652 and 63 communications
with AJ Theunissen on
8702.
264.
The spider prepared in respect of Chao's number 1789 (Exhibit 4.14)
shows 28 communications between him and accused 2
on 1734 (which is
his admitted number) over the same period, with Chao also talking to
Africa, (126 communications) and accused
3 (twice). Finally, the
spider in respect of Ku (Exhibit 4.7) on 9019 shows 35 communications
with number 2 on 1734, 163 with number
3 on 4596, 202 with Chao on
his other number, 8839, and 52 communications with Africa on 6520.
265.
What these various communications show (and we must emphasize that
the totals given relate to calls and SMSs both ways),
is that accused
2 was in regular communication with many of the role players at the
heart of the Chao enterprise. His failure to
explain these
communications on its own sends up a red flag in respect of accused
2.
266.
The situation becomes all the more curious when one goes to the
detailed billing for Chao on 1789 and one finds that
on the very day
of the V&A raid (19 September 2006) he called Van Rensburg on
1734 at 07h37 while he, Chao, was in the vicinity
of a tower called
"Caesars" (the State suggested that this was in the
vicinity of OR Tambo International Airport in Gauteng),
and the
parties spoke for 87 seconds. Then just 7 minutes later, at 07h44 Van
Rensburg called Chao back and the parties spoke for
a further 44
seconds. The detailed billing of Ku on 9019 shows that later
that day, at 13h20, while Ku was near a tower called
Broadacres in
Gauteng, he was called by Van Rensburg and the parties spoke for 278
seconds - more than 4 minutes.
267.
If we look at the detailed billing for 5069, which is attached to
Exhibit 4.16, one sees that the towers often in use
include the
suburbs of Clifton, Bantry Bay, Mouille Point and Green Point –
all along the Atlantic Seaboard of Cape Town.
That SIM card also made
frequent visits to Hermanus and used towers along the usual route
there. During September 2006 the
SIM card was mostly in the
vicinity of a tower called “Philippi Station”
,
which is on the Cape Flats, with the
odd call going through the towers at Clifton and nearby Oudekraal.
On the morning of
the V&A raid the SIM was in the vicinity of the
said Philippi Station and was in use until 11h48 that day when an
outgoing
call was made for 241 seconds to a number ending 0761.
Thereafter the SIM card was removed from the phone and all
calls were
automatically forwarded to voice mail.
268.
As part of their subpoenaed documents, Vodacom produced a so called
“Usage Profile” in respect of all handsets
in which the
number ending 5069 was used from 1 October 2003 to 23 September
2006. This shows, firstly, that the number was
prepaid at all
times and was not on a contract. Then it shows, for instance,
that:
·
On 23 July 2004, the number was used
in a Nokia 6100 model handset with IMEI number ending 4186, for 6
communications between 17h31
and 17h37.
·
On 6 August 2004, it was inserted in a
different Nokia 6100 for just one call.
·
Between 23 and 26 October 2004, it was
inserted into the same Nokia 6100 handset to make three calls.
·
Between 2 November 2004 and 11 January
2006, it was used in the same Nokia 6100 handset used on 23 July 2004
to make 89 calls.
·
During part of that period, (that is 12
July 2005 to 29 June 2006), the same SIM was used in a different
Nokia 6100 with IMEI number
ending 0190, to make 1 874 calls, of
which 15 were classified as “failed”.
·
Also in that period, 13 October 2005 to 29
December 2005, it was used in a Nokia 9300 to make 264 calls.
·
From 12 January 2006 to 10 January 2006, it
was used in yet another Nokia 6100 with IMEI number 35567300584783 to
make 316 calls,
of which five “failed”.
·
From 9 to 14 July 2006, the SIM was used in
a Nokia 6030 handset to make 59 calls.
·
From 26 July to 19 September 2006, it was
used to make 192 calls, of which five “failed” in a Nokia
3120 handset.
·
Twice (on 13 and 14 December 2006), whilst
in the vicinity of the towers at Clifton and Oudekraal, it received
calls from 1734;
and, finally
·
On 23 September 2006, at 16h49, it was
inserted into a Samsung SGH S600 handset, to make a single call.
On the detailed billing,
the number dialled was 100, evidently to
retrieve voicemails.
269.
What does this tell us? Firstly, that accused 2 had
access to, and utilised a number of different Nokia handsets
over a
number of years. Secondly, that he inserted the same SIM, (with
cell number 5069) randomly into various of these phones.
We can
only conclude, therefore, that he too is a serial SIM swopper and
adherent of the advice given to Chao by Africa.
Why one asks,
would a person go to the trouble of swopping SIMS in handsets, if one
was about legitimate business? On the
contrary, the practice
has the hallmark of someone who is up to no good and wishes to cover
his tracks. But there is more
to it.
270.
When he handed himself over to the police on 14 November 2006, Van
Rensburg did not have a cell phone in his possession
and Brink was
given the run around. Eventually a Nokia 6100 was given to
Brink the following day, whereafter bail was granted
to the accused.
And, that Nokia 6100 handset contained the SIM card with the cell
phone number ending 1734 and which Brink
then downloaded on 19
November 2006. He was led to believe by Van Rensburg that this
was his only phone and that 1734 was
the only number he used, hence
the subsequent challenge to the Wayne number on Africa’s phone.
271.
Exhibit 3.39, which was generated during this download, reflects the
IMEI number of that Nokia 6100 as 355673005847830.
Brink told
the Court, (and the evidence was not challenged), that when the
Vodacom computer collated the data relating to a SIM
such as this, it
usually dropped the last digit off the IMEI number. This means
that the Nokia 6100 handed to the police
by Van Rensburg on 14
November 2006, was the same handset in which the 5069 SIM was
used between 12 January and 10
February 2006, to make the 316
calls referred to above. Accused 2 chose not to explain this
anomaly. In fairness to
him, he probably could not, just as he
could not explain the Maseru Bridge coincidence. We are of the
view that this anomaly
serves to confirm our finding that “Wayne”
was Willie van Rensburg and as will be seen later, was known by
accused
3 as “Tonywillie”.
272.
A J Theunissen identified accused 2 as a person who, accompanied by
accused number 5, visited his premises one day at
Brackenfell,
inquiring about the manufacture of a freezer room and a blast
freezer. Theunissen was unable to fix a time,
but we are of the
view that it may have been around mid June 2006 or later. We
say so, because Jaco Botha said he made several
deliveries on behalf
of accused 4 to V&A via Maitland, and only later on ex
Brackenfell while he worked for number 4 between
February and October
2006. Theunissen explained that a blast freezer has a
specialist function in reducing the amount of
time required to freeze
product.
273.
Theunissen recalled that Van Rensburg arrived driving a Mercedes Benz
ML series 4x4. He said that he provided a
quote to accused 5
and handed in a duplicate original thereof as an exhibit.
Regrettably the document is undated, but the
contents speak for
themselves. This was a costly piece of equipment, designed for
a special function and would be ideally
suited for the freezing of
large quantities of abalone. When prodded under
cross-examination by Mr Uijs, SC, the witness
said that Van Rensburg
had let Liebenberg do the talking that day, and he assumed that the
former was the financial backer for
the deal. Theunissen
disagreed with the submission put to him that it was number 2 who
placed the order and that he needed
the freezer at his fish factory
in Hermanus. Theunissen’s recollection was that the
freezer was to be located at his
yard in Brackenfell and that in lieu
of the use thereof, there would be no charge for the rental of the
facility that number 4
was then using at Brackenfell.
274.
Theunissen said that accused 5 was happy with the quote, but when he
asked for payment in advance of manufacture, things
went nap.
In the result, the deal did not go ahead. One can only, once
again, ask rhetorically who was more likely
to have been in a
position to finance such a piece of equipment, and who was more
likely to have needed the use thereof - a man
of means with an
interest in the commercial fishing industry, and in particular the
sale of abalone, or an self-employed chef in
the catering business,
as Du Toit described Liebenberg?
275.
Theunissen also testified that accused 2 visited his business on the
odd other occasion in the company of Du Toit.
While this
may have been at the time that he still operated out of Maitland, it
was certainly during the time he had the Brackenfell
site.
Van Rensburg did not challenge this evidence.
276.
The other snippet of evidence which implicates accused 2, comes from
Jaco Botha. He testified that a short while
after he arrived in
Cape Town, and had started working for accused 4, he was taken to
business premises in Montague Gardens for
purposes of collecting a
Kia bakkie to transport the product from Maitland to V&A.
Being unfamiliar with Cape Town, he
was shown the way by Michelle du
Toit, who told him en route that the Kia belonged to “Willie”.
In addition,
said Botha, accused 4 told him that number 2 was
the financial backer of his processing business.
277.
When Potgieter testified, he said that he had asked Botha, after his
arrest, to point out the address where the Kia had
been collected.
The premises later turned out to be those of Chao in Montague
Gardens. While it was said that Van Rensburg
had commercial
premises in Killarney, just a short distance away, the police did not
follow up on the registered owner of the Kia.
And so, while
that may have provided direct evidence of his involvement in the
predicate offences, Van Rensburg’s alleged
ownership of the Kia
must be found to be no more than a possibility as opposed to a
probability.
278.
Captain Brink was responsible for dealing with the post-arrest
procedures of accused 2 after he surrendered himself to
the police on
14 November 2006. He believed it necessary to verify Van
Rensburg’s residential address and drove with
him to Hermanus,
where an unfurnished flat was allegedly pointed out. At the
same time Brink said that they visited the
premises of a local
fishing company, S&W Fishing, in which he believed number 2 had
an interest. Thereafter the parties
proceeded to an apartment
block called Dunmore in Clifton, which is arguably one of Cape Town’s
most expensive suburbs along
the Atlantic Seaboard, where a search
was conducted of a flat in which accused 2 and his wife resided.
279.
During cross-examination by Mr Uijs SC, it emerged that Brink and Van
Rensburg were acquainted with each other and reference
was made to an
unpleasant encounter at a bar in Hermanus, where the two men engaged
in mutually uncomplimentary recriminations.
While it is not
necessary to go into the evidence of Brink in any great detail
because it does not play a material part in this
matter, it is clear
to us that he was interested in assisting in Van Rensburg’s
conviction and he cannot be considered to
be a neutral witness in
regard to accused 2.
280.
What this evidence does demonstrate, however, is that accused 2 was
at the time involved in the fishing industry in Hermanus,
where he
may or may not have dealt lawfully in the commercial exploitation of
abalone, that he owned or rented an apartment there,
that his
permanent place of residence was in an area where one would expect to
encounter wealthy homeowners or occupiers and that
he drove a late
model luxury German car. Regrettably, all these trappings of
wealth remain unexplored and unexplained, because
no lifestyle audit
was conducted in respect of Van Rensburg.
281.
In his evidence, accused 4 said that he and Van Rensburg got to know
each other through a business which the latter allegedly
ran
manufacturing security spikes for installation on perimeter walls of
homes and businesses. Accused 4 told the Court that
he
occasionally helped with the installation of number 2’s wall
spikes. Their acquaintance, according to Du Toit, went
no
further than that, and it seems they were not house friends either.
In addition, during the cross-examination of Theunissen,
counsel was
cautious to suggest that number 2 was never at Maitland or
Brackenfell in the company of number 4, only number 5.
But
Theunissen was adamant that number 4 had been to his premises in the
company of both men, albeit on separate occasions.
282.
Under cross-examination by the State in relation to their business
liaison, Ms Van der Merwe was able to demonstrate,
through the use of
cell phone records, that number 4 and number 2 were in regular
contact with each other. The pattern of
this contact manifestly
did not fit the description given by number 4 regarding limited
contact in the course of their alleged
business relationship
regarding the spikes, and it is difficult to accept this explanation.
283.
A more fundamental problem in relation to Van Rensburg that arises
from the evidence of accused 4, is that the fact of
his alleged
business relationship with Van Rensburg, was never put by Mr Uijs,
SC, to Jaco Botha, someone, whom we expect
might have been able
to confirm the spikes story. Nor was it put to Africa, who also
might just have had knowledge thereof.
At the end of the day,
we are left with the distinct impression that the notion that Van
Rensburg ran a spikes business, was just
that, a story made up long
after Jaco Botha had left the witness box. In those
circumstances, we are of the firm belief that
the only reasonable
inference to be drawn from the high volume of cell phone
communication between accused 2 and 4, is mostly probably
because he
was indeed responsible for financing Du Toit’s operation at
Kendal Road.
284.
In the circumstances, we are satisfied beyond reasonable doubt that
accused 2 was part and parcel of Chao’s illegal
enterprise, and
in the absence of any explanation from Van Rensburg the evidence
before us points firmly in that direction.
However, we had
difficulty in concluding that he can be said to have committed two
predicate offences and we requested the State
to address us on the
point. Ms Heeramun, in reply, fairly conceded that the State
could not point directly thereto, but she
went on to argue that Van
Rensburg’s criminal liability can be inferred through the
application of the doctrine of common
purpose.
285.
The doctrine of common purpose is a part of our law which is not
without controversy, particularly because in the strife-torn
decade
of the 1980’s, it was regularly used as a tool to impute guilt
to participants in mob violence. The leading
case then was
S
v Mgedezi
1989(1) SA 687 (A). The
doctrine received the
imprimatur
of the Constitutional Court in
S v
Thebus
2003(6) SA 505 (CC), where it
was held that the legal principles applied in
Mgedezi
were not in conflict with the Constitution.
Thebus
involved a fatal attack by a group of residents of Ocean View on an
alleged drug dealer, with whom the community had had enough.
In
the process an innocent child bystander was shot and killed and
charges of murder were brought against members of the community.
286. In the leading judgment for
the minority, Moseneke, J, summed up the doctrine as follows:
“
[18] The
doctrine of common purpose, is a set of rules of the common law that
regulates the attribution of criminal liability to
a person who
undertakes jointly with another person or persons, the commission of
a crime.
Burchell and Milton
define the doctrine of common purpose in the following terms :
‘
Where two or
more people agree to commit a crime, or actively associate in a joint
unlawful enterprise, each will be responsible
for specific criminal
conduct committed by one of their number, which falls within the
common purpose design. Liability arises
from their common
purpose to commit the crime......’
[19] The liability requirements
of a joint criminal enterprise fall into two categories. The
first arises where there
is a prior agreement, express or implied, to
commit a common offence. In the second category, no such prior
agreement exists or
is proved. The liability arises from an
active association and participation in a common criminal design,
with a requisite
blameworthy state of mind. In the present
matter, the evidence does not prove any prior pact......
[34] In our
law, ordinarily, in a consequence crime, a causal nexus between the
conduct of an accused and the criminal consequence,
is a prerequisite
for criminal liability. The doctrine of common purpose
dispenses with the causation requirement.
Provided the accused
actively associated with the conduct of the perpetrators in the group
that caused the death, and had the required
intention in respect of
the unlawful consequence, the accused would be guilty of the offence.
The principal object of the doctrine
of common purpose is to
criminalise collective criminal conduct and thus to satisfy the
social “need to control crime committed
in the course of
joint enterprises”. The phenomenon of serious crimes
committed by collective individuals acting
in concert, remains a
significant societal scourge. In consequence crimes, such as
murder, robbery, malicious damage to property
and arson, it is often
difficult to prove that the act of each person or a particular person
in the group, contributed causally
to the criminal result. Such
a causal prerequisite for liability would render nugatory and
ineffectual the object
of the criminal norm of common purpose and
make prosecution of collaborative criminal enterprises intractable
and ineffectual.”
287.
In this case we are not dealing with a consequential crime, but
rather a series of statutory contraventions. I
see no reason,
however, why the doctrine of common purpose should not find
application in such a situation. If one considers
the myriad
scenarios which have confronted the courts over the years in, for
example, narcotics, liquor and firearms contraventions,
never has it
been suggested that the doctrine of common purposes may not be relied
upon.
288.
In the context of the facts at hand, we are dealing with the first
category discussed by Moseneke, J, in relation to
the doctrine of
common purpose, namely a prior agreement, (express or tacit), to
commit a common offence. The inquiry is
whether accused 2
willingly and actively participated in the unlawful enterprise
conducted by accused 4 at Durbanville
and the subsequent
delivery of abalone to V&A. Was there a “common
criminal design with the requisite blameworthy
state of mind”
on the part of accused 2 in relation to that enterprise.
289.
It was open to the State to prosecute accused 2 with the more broader
charges of criminal conspiracy, as one finds in
S18 of the Riotous
Assemblies Act 17 of 1956, or more specifically in S2(1)(g) of POCA,
but it chose not to do so, preferring to
indict him only under
S2(1)(e) and 2(1)(f) of POCA and to rely on the commission of
predicate offences in relation to the former.
Counsel for the
defence cautioned the Court in their addresses in this matter, to be
wary of placing the cart before the horse,
i.e. of establishing
criminal liability on the basis of participation in the illicit
affairs of the enterprise, rather than first
establishing liability
under the predicate offences. Reliance upon the doctrine of
common purpose might at first blush, therefore,
appear to be an
endeavour to do just that.
290.
In my view there can be no principial objection to applying the
doctrine of common purpose to establish liability under
a predicate
offence. One need only think of the type of gang-related
activities which are routinely prosecuted under
POCA, for example,
murder, rape and robbery, in which it could hardly be claimed that
the doctrine of common purpose could not
be used to establish the
liability of an individual gang member in relation to crimes
committed by the collective. The offences
to which I have just
referred are, of course, consequence crimes, but as I have already
said there can be no objection to apply
the doctrine to statutory
crimes, committed by such a collective. The court must simply
be cautious that it does not circumvent
proof of the predicate
offences and, if it relies on common purpose to do so, that all the
elements of the doctrine are found to
exist.
291. Insofar as the potential
involvement of accused 2 is concerned, he would have to have made
common purpose with accused
4, Africa and Chao in the conduct of the
unlawful enterprise. I shall, therefore revert to the
potential liability
of accused 2 under the doctrine of common purpose
when I deal with liability of accused 4 later.
ACCUSED
3, ADRIAAN GAVIN WILDSCHUTT
292.
The witnesses who implicate accused 3, are Captain Brink, Warrant
Officer Potgieter, Lieutenant Colonel Potgieter, Hester
Mouton, David
le Roux, Salvin Africa, Adam Wildschutt, Lydia Wildschutt, Lieutenant
McLean and Warrant Officer Louw. But
aside from all of these,
Wildschutt accepted liability for two predicate offences by tendering
a guilty plea in the Hermanus Regional
Court in April 2006 for
contravening S18(1) and Regulation 39(1)(a) in relation to the raid
at Foxhole Farm. In that plea,
he admitted to transporting
abalone to and from Foxhole. It is not in dispute that 5 050
units of abalone were found
during the raid on the farm and number
3’s plea of guilty in respect of contravening Regulation
39(1)(a) must, therefore,
be in respect of this amount.
293.
While the conviction in respect of these counts would otherwise be
sufficient to establish proof of the predicate offences
contemplated
under S2(1)(e) of POCA, we will nonetheless look at the remainder of
the charges under which Wildschutt has been indicted,
to see what has
been established for purposes of the application of POCA.
294.
The evidence of Le Roux links Wildschutt to the collection in
Stellenbosch on about 7 February 2006, of a substantial
quantity of
fresh abalone. It is likely that some or all of this amount,
was still being processed at Foxhole at the time
of the raid, since
Le Roux said that the day after the delivery, he heard of the raid on
the news. Le Roux further implicates
Wildschutt directly in the
setting up of the drying facility at Volmoed, explaining how he,
Wildschutt and a Chinese man known
to him only as Chris, visited the
premises to assess them, prior to the conclusion of the lease with
the owner, Hester Mouton.
Potgieter later testified that a
certain Chris Zhou was arrested and pleaded guilty to charges related
to the raid at Volmoed.
295.
Mouton identified the lease referred to earlier, which was concluded
by a certain Mc Donald on behalf of Kellogg’s,
a multi-national
cereal manufacturer. She provided carbon copies of cash
deposits into her bank account of the monthly rental
for the cottage
in which the facility was housed. The cash deposit slips were
all signed by a certain M Wildschutt, in one
instance purportedly on
behalf of Kellogg’s. The earliest deposit slip identified
by Mouton, related to a payment of
R7 000,00 made on 29
March 2006 and, thereafter, a further two payments of R2 500,00
each. It is common cause that
Wildschutt’s wife is known
as Merilyn and in argument Mr Mellor did not seek to offer any
explanation that would suggest
that it was not she who deposited
these amounts.
296.
The evidence of Mouton also establishes the possibility that a
bakkie, similar to that followed by Brink from Hercules
Street to
Faraday Street on 19 June 2006, was at Volmoed in around April 2006,
and further, that a truck and container fitting
the description of
the large vehicle with the container found at the Hercules Street
yard on 19 June 2006, had also visited the
premises at Volmoed on
occasion. That vehicle, when searched by the police on the day
of the raid at Hercules Street, contained
paraphernalia and chemicals
used in the drying of abalone, similar to that found at Volmoed.
297.
Then there is the evidence of Adam and Lydia Wildschutt that in April
2006 their nephew, Gavin, had asked for permission
to use the garage
of their house at 15 Faraday Street, Belhar, to process and
pack what he referred to as “fish”.
Lydia
Wildschutt described the subsequent installation of three chest
freezers by accused 3 and the use of steel pans to freeze
the product
which was later packed into cardboard boxes. According to her,
a team of around five men used to come to the
house about three times
a week to do the cleaning and freezing of the product.
298.
Lydia Wildschutt described how the cardboard boxes were loaded on to
the back of a bakkie and then transported away to
an unknown
destination. She would have us believe that she did not know
from the outset what was happening in her own house
and claimed that
a couple of weeks after her nephew started working there, she became
concerned about an unpleasant smell pervading
the house and asked her
husband what was going on. He told her that abalone was being
cleaned and frozen. Discretion
became the better part of
valour, it seems, since Lydia Wildschutt held her tongue.
299.
Potgieter testified about the raid at both Hercules and Faraday
Streets. He confirmed the
modus
operandi
described by Lydia Wildschutt,
and more importantly, drew the Court’s attention to a series of
photographs taken at Faraday
Street on the day of the raid.
Those photographs too confirm the
modus
operandi
. In one such photograph,
Potgieter was able to identify a rubber stamp, which he said was
similar to Exhibit 1. That
exhibit was handed in to Court and
identified by Jaco Botha as a device which was used at Kendal Road to
stamp the word “Bait”
on the cardboard boxes before
delivery to V&A. Potgieter’s evidence suggests that
the boxes of abalone packed at
Faraday Street were to be similarly
stamped before being removed from the premises.
300.
We consider that there is evidential significance too in the fact
that police discovered not only wet and frozen abalone
at Faraday
Street, but also dried abalone. There was no obvious facility
at Faraday Street for the drying of the product
which, in the
circumstances, must have been processed elsewhere and transported to
Belhar. We believe that it is reasonable
to infer that such
dried abalone probably came from Volmoed, given accused 3’s
involvement at the latter drying facility.
This inference is
bolstered by the fact that dried abalone was found, together with wet
abalone, during the raid at V&A on
19 September 2006 and by the
MCM officials on 28 October 2006 in the four containers returned from
Singapore. Given that
the source of abalone on the pallets
seized at V&A and in certain of the returned containers was
described as Syroun, and further
that various of them bore the “Bait”
stamp mark, the inference that such abalone emanated from accused 3,
is reasonable
in the circumstances.
301.
Adam Wildschutt told the Court about his nephew, Gavin’s,
request in February 2006 for assistance in the storing
of abalone at
his yard in Hercules Street. He agreed to accommodate him and
they agreed on a monthly rental of R3 000,00.
Adam
Wildschutt said that he realised he had been duped into agreeing to
help his nephew out, when the operation became far bigger
than that
which he was originally led to believe. He said that after a
while accused 3 asked whether he could use the garage
at Faraday
Street, and he claimed he reluctantly agreed. He said he ended
up spending most of the rent on cleaning materials
as “Gavin
and his guys” did not clean up after themselves.
302.
The witness described how accused 3 brought quantities of salt and a
large truck on to the yard at Hercules Street.
It would seem
that Adam Wildschutt was referring to Mr Chaung’s Mercedes
Benz truck already referred to, and which appears
on photograph 30 in
Exhibit C. It was parked next to a Mitsubishi truck which Adam
Wildschutt said was without an engine.
On another occasion,
said Adam Wildschutt, accused 3 requested his uncle to convey a
bakkie load of salt through to a farm near
the hamlet of Stanford,
which lies between Hermanus and Gansbaai, which is where accused 3
now resides. That evidence too
was not challenged.
303.
In argument, Mr Mellor asked the Court to disbelieve this witness and
to find that the operation being conducted at his
yard and his house,
was, in fact, his business and not that of accused 3. The
problem with the argument starts with
the fact that accused 3 did not
take the witness box and contest the evidence of his uncle and aunt.
Argument on the probabilities
in those circumstances is, therefore,
problematic, because there is no countervailing version to assess for
purposes of probability.
Further, the evidence implicating
accused 3 in relation to Hercules and Faraday Streets, is simply
overwhelming, and in such circumstances
the accused’s failure
to take the stand is understandable. Credible evidence in
rebuttal would be difficult to create.
304.
We see too the reappearance of other persons involved in accused 3’s
set up. Some of those arrested at Foxhole,
(Jerry Witbooi,
Jerome Browne and Ashley Browne), were also found at Faraday and
Hercules Streets and they offered guilty pleas,
both in the Hermanus
court and in this court before Erasmus, J. It is important to
note further in this regard, that when
Adam Wildschutt handed his
cell phone to the police, and his list of contacts was downloaded,
the names of those persons, as well
as others arrested at Hercules
and Faraday Streets, were found in the list of contacts on his phone
with number ending 1938.
305.
While there may conceivably be an innocent explanation therefor, we
consider that this is a pointer to the fact that
Adam Wildschutt was
probably involved in the business with number 3. In this regard
we recall an off-the-cuff remark made
by Adam Wildschutt that at
Faraday Street pilchards were being packed in the metal trays,
together with the abalone. We know
that this did not take
place at Faraday Street, but at Foxhole, as the photographs relevant
to that raid show. Nevertheless,
this possibility does not
detract from Gavin Wildschutt’s involvement, as the principal
operator of the FPE’s being
conducted at Hercules and Faraday
Streets.
306.
At the beginning of this judgment, I set out the definition of a fish
processing establishment. It is undoubtedly
a wide definition
and includes activities such as “cleaning” and “storing”
and further covers a place where
fish is “salted, iced, chilled
or frozen”. We are satisfied that the operation at
Hercules Street fits the definition
of an FPE. Indeed,
Mr Mellor did not present any argument to the contrary. In
the circumstances, we are satisfied
that Gavin Wildschutt is liable
for conviction on the S18(1) charges relating to the sites at both
Hercules and Faraday Streets,
as well as Volmoed. In addition,
he admitted involvement in the FPE at Foxhole.
307.
As indicated earlier, Africa testified that he met accused 3 on one
occasion at the Waterfront, when he was introduced
to him by Ku.
At that stage they exchanged cell phone numbers and Africa says
Wildschutt gave him his cell number.
Africa said he
stored this number on his
skelm
phone’s list of contacts, under the pseudonym “Ga”.
It is not clear whether in February 2006 the number
given was 4596,
since Africa commented that number 3 was continually swopping his SIM
card and, hence, his number often changed.
What is clear,
however, is that when Africa’s handsets were seized by the
police late in September 2006, 4596 was the number
then stored under
the name “Ga” on the
skelm
phone.
308.
Ku’s cell phone records relating to his number 9019, show
plenty of contact with accused 3 in August to September
2006, and
also contact with Van Rensburg on 1734, which it seems was the only
number the latter was then using.
309.
Under cross-examination on behalf of accused 3, the meeting with
Africa at the Waterfront was denied, as was the fact
that 4596 was
ever his number. Accused 3 maintained, through his counsel, in
cross-examination that he used no less than
eight different cell
phone numbers during the relevant period, as also his daughter’s
number on occasion. But these
allegations were never
substantiated through testimony from him or any witness on his
behalf. The immediate question that,
of course, springs to
mind, is why a person, who claimed to be a seller of firewood, would
use so many numbers at all?
310.
The police evidence was to the effect that accused 3 used a Samsung
phone, which had been seized during the raid at Foxhole
and in which
the number 0364 had been used. Brink was questioned extensively
by Mr Mellor in an attempt to discredit
him, and much play was
made regarding the fact that accused number 3 disputed that a Samsung
SGH E800 cell phone, with IMEI number
ending in 8741, was taken off
him when he was arrested by Brink at Foxhole. No mention had
been made thereof in Brink’s
statement in the police docket for
that case, nor had the phone been handed in through the SAP13 exhibit
register at the Stellenbosch
Police Station, yet Brink steadfastly
maintained that he had taken that phone from the accused and later
handed it to Potgieter,
(the investigating officer in the Foxhole
matter as well), after he had downloaded the data on the phone on 3
April 2006.
311.
Brink said that the download of the data off this phone on 3 April
2006, related to a SIM card in respect of a cell number
ending in
0364. The list of contacts, Exhibit 3.1, contains a
number of relevant names, including the name “Doepie”,
the nickname of Attorney Wynand du Plessis, who was called by the
State, Africa (stored as “shelvin”) on 1874, accused
4,
(who is listed as “Tony") on 8645 and accused 2, (stored
as “tonywillie”) on 5069.
312.
The purpose of the challenge in regard to this instrument seizure,
was an obvious attempt to de-link it from the list
of contacts
recorded on Exhibit 3.1 to 3.3, which provide strong corroboration
for Africa’s evidence regarding the numbers
stored on his
skelm
phone. We agree with counsel that there is certainly cause for
concern regarding the manner in which Brink allegedly handled
the
exhibit after its seizure, which manifestly did not comply with
police standing orders. But at the end of it all, the
lie was
given to the defence version when Vodacom certificates, coupled to
both 0364 and 4596 were found in the house then occupied
by accused 3
in Naomi Street, Elsies River.
313.
The evidence of Mark McLean and Wayne Louw dealt with an authorised
police search at the premises at 58 Naomi Street
on 28 November
2006 at around 06h00 in the presence of accused 3 and his wife,
Merilyn. During the search, amongst other
things, a large
number of unused SIM cards, still attached to their credit card sized
backings, were found on the premises, as
were certificates or cards
relating to SIM cards which had been used. These were notarised
and bagged in forensic bags by
the search party and duly handed in to
the police at Bellville South through the SAP13 register.
314.
Included in the latter were 0364 and 4596’s certificates, which
suggest that both SIM cards had been in that house
at some time or
other. The Vodacom certificate in respect of 4596, for example,
(Exhibit 3.71), contains a warning from the
cell phone provider to
the customer to “Please keep these cards in a safe place”.
The reason therefor is obvious.
The certificate contains
the PIN number for the SIM card, the cell phone number and
importantly, the PUK number, which is required
if the SIM card is
blocked and the number is rendered temporarily unusable.
315.
In the absence of an explanation from Wildschutt to the contrary, it
is reasonable to infer, as Africa claimed, that
4596 was a
number used by accused 3 on occasion. I say on occasion, because
Africa testified that Wildschutt was forever
swopping SIM cards and
that he would receive calls on his
skelm
phone from numbers which he did not recognise, but which turned out
to be from number 3. This evidence, together with the
discovery
of a plethora of unused SIM cards, together with the used
certificates, suggests that Wildschutt was not, as Mr Mellor
submitted in argument, a purveyor of not only fish products and SIM
cards, but rather a serial SIM swopper. We believe that
it is
safe to find that 4596 was one of Wildschutt’s cell numbers,
that Africa stored this on his
skelm
phone under “Ga” and that the two communicated with each
other on this number.
316.
The discovery of the FPE’s at Volmoed, Faraday and Hercules
prompts the obvious question, what became of the product?
We
believe that the answer to the conundrum is to be found in the
evidence of Africa. He explained that prior to the delivery
of
a load of abalone to V&A, he would receive a call from Chao,
usually the day before. He would be informed when
delivery was to take place and by whom. If the delivery was
made by Jaco, on behalf of accused 4, Africa was instructed to
book
it in at V&A under the name Rapitrade. If the delivery was
made by “Gavin’s guys”, on behalf of
number 3, it
was to be booked in under the name Syroun. Africa testified
that accused 3 was present during the first delivery,
but thereafter
deliveries were made by his team. This is to be expected since
a seasoned abalone trader such as Gavin Wildschutt,
would not take
the risk of being found in possession of such a quantity of the
product, either en route to or at a public place
such as V&A.
317.
Africa said that he would usually be called by Wildschutt on the day
of the delivery, or the day before, to confirm the
time of
delivery. That evidence is not adequately sustained in
respect of all deliveries by Syroun with reference to
the cell phone
records before August 2006. But the core data from Vodacom in
relation to 4596, reflects that accused 3 was
in regular contact with
Ku around delivery times. We must have regard to the fact that
accused 3 often made use of other
SIM cards and so, as Africa
testified, those pre-delivery calls may have come from other numbers,
which the police did not, or
were not able to, trace.
318.
In the absence of any evidence to the contrary adduced by accused 3,
we are satisfied beyond reasonable doubt, that save
as set out
hereunder, all batches of abalone delivered to V&A during the
period February to September 2006 on behalf of Syroun,
emanated from
the FPE’s run by him. Insofar as those deliveries were
made on his behalf and at his direction, the abalone
was under his
control for purposes of commercial exploitation. He is
accordingly liable for conviction under Regulation 39(1)(a)
in regard
to such deliveries, shown beyond reasonable doubt, to have been made
on behalf of Syroun to V&A during 2006.
319.
In relation to counts 33, 36, 37, 40, 44 and 45, Africa testified
that the delivery of the abalone involved in those
charges to V&A,
was made by “Gavin’s guys” on behalf of
Syroun. In considering the GRVs and GIVs
relevant to these
deliveries, we note, however, that the product was booked in by
Africa on behalf of Rapitrade and when it was
booked out of the cold
store and transferred to the container, the GIV similarly records
that the product had been held on behalf
of Rapitrade.
320.
The invoices for these exports to Hong Kong on the other hand,
reflect Syroun as the consigner of the abalone.
We are
concerned that the documentation does not adequately corroborate
Africa’s evidence on the source of abalone involved
in these
counts, and in fairness to accused 3, he is entitled to the benefit
of the Court’s doubt on those counts.
321. In summary, therefore, we
are satisfied that accused 3 is liable for conviction on counts 46,
47, 50, 51, 100, 102, 104,
106, 108 and 109. The total volume
of abalone involved in the deliveries to V&A on behalf of Syroun,
is 13 960 kilograms
or 13.9 tons. The abalone found at
Faraday and Hercules Streets and Volmoed, as well as Syroun’s
share of the abalone
found during the V&A raid, and that which
was returned from Singapore, was not weighed, but the individual
units were counted.
The total thereof amounts to a staggering
171 050 units. If one were to estimate a mass of 200 grams
per unit, which
on the available evidence we believe is a
conservative figure, the weight would be of the order of 34 210
kilograms or about
34 tons.
SPLITTING
OF CHARGES
322.
During the State’s replying argument, we inquired of
Ms Heeramun whether there was a case for a splitting
of charges
at Hercules and Faraday Streets and Volmoed, in that the abalone
controlled there in contravention of Regulation 39(1)(a),
might have
been possessed for use in the FPE’s at either Volmoed or
Faraday Street. Ms Heeramun answered in the negative,
but the
matter was not debated further.
323. Neither Mr Mellor nor Mr
Uijs, SC, raised any issue around the splitting of charges in their
respective arguments, and
in the circumstances we consider that it
would not be appropriate to discuss the point further in this
judgment, in light of the
fact that the issue has not been properly
ventilated by the parties in argument.
ACCUSED
4 – TONY PETER DU TOIT
324.
Accused 4 is implicated by Africa, Le Roux, Jaco Botha, Percy Clack,
Harold Bauchop, AJ Theunissen, Brink and Lieutenant
Colonel
Potgieter. However, it is not necessary to go into that
evidence in any great detail in light of the defence put
up by Du
Toit when he took the witness stand. His case is that he
believed that the abalone which was processed at Kendal
Road had been
legitimately acquired and supplied to him on the strength of certain
remarks made to him by Chao. Accused 4
does not place in issue
the delivery by him of various loads of abalone to Sea Freeze in
2005, nor the deliveries by Botha on his
behalf to V&A in 2006.
325.
In argument Mr Uijs, SC, stressed that there were two legs to Du
Toit’s defence. The first was a defence
of wrongfulness
in respect whereof he accepted that the accused bore the
onus
.
The second leg was that Du Toit did not have the requisite
mens
rea
to commit the offences, because he
believed that the product had been lawfully delivered to him and that
his continued possession
and control thereof was lawful.
Counsel observed that in regard to the second leg of the defence, the
onus was on the State
to establish the
mens
rea
of his client. I agree.
326.
At the outset we need to state that accused 4 was not a good
witness. He is a quiet and retiring person who did
not talk a
lot in the witness box, but when he did so, he contradicted himself
in a number of respects, and in particular was often
unable to offer
reasonable explanations when pressed for answers. We are left
with the abiding impression, further, that
accused 4 did his best to
protect accused 2 wherever possible. Accordingly, we approach
his evidence with great caution.
327.
The legality defence is based on the following allegations. Du
Toit said that he arrived in Cape Town in 2004 from
Gauteng and lived
in a house in Xavier Street, Hoheizen, which is a suburb of Bellville
to the north of the N1 highway. He
ran a second-hand furniture
shop in Bellville and got to know Richard Chao as the latter was
interested in disposing of sleeper-wood
furniture which he was
manufacturing. Evidently the accused agreed to stock some of
this furniture in his store.
328.
The second-hand furniture store did not do well, and Du Toit was
forced to close it down sometime in late 2004/2005.
At that
stage Chao approached him and asked him to assist with the storage of
abalone at his house in Xavier Street. Du Toit
told the Court
that, being from Johannesburg, he did not know what abalone was.
This answer was probed by the State in cross-examination
when it was
suggested that, prior to his meeting Chao, accused 2 would have known
that Michelle’s erstwhile boyfriend had
been caught with
abalone. Nevertheless, Du Toit says he asked Chao if what he
was doing would be lawful, and he says that
Chao told him that he had
bought the abalone lawfully from the State, which disposed of seized
abalone from time to time, on auction.
329.
Accused 4 will have the Court believe that Chao showed him a document
in this regard, yet he could give no details thereof,
nor did he take
a copy for himself. He simply accepted the say-so of Chao that
the abalone was legitimate. Already
in this version one finds
the seeds of doubt. Can accused 4, then a 50-year-old man,
really not have known what abalone was,
given the extensive coverage
of the poaching thereof which one has had in the media over many,
many years? Was Michelle’s
boyfriend, to his knowledge,
caught with poached abalone, yet he knew nothing thereof? And,
why did he even ask Chao if his
conduct would be legal unless he had
some concerns in that regard?
330.
The veracity of this explanation is further brought into question
when one considers the evidence of Le Roux. He
explained how
his initial deliveries of abalone took place at a Pick n Pay shopping
centre in Boston which was located just below
the N1 highway.
On the first occasion he met accused 4, who explained to him how the
drop was to take place. Du Toit
drove the first load away and
returned the bakkie later. Le Roux was not permitted to see
where the abalone was being taken,
and thereafter his deliveries were
clouded in secrecy and subterfuge, with the deliverer being required
to abandon his vehicle
with the ignition keys hidden in a designated
place, disappear from sight so that he could not identify the party
collecting the
vehicle, and then return sometime later to drive off
with the vehicle that had been relieved of its load. On the
last occasion,
he said, he was instructed by accused 4 to follow him
to his house where the bakkie was offloaded.
331.
Du Toit testified that Chao provided three deep-freezers in which the
product was to be frozen. Initially, we understood
accused 4 to
say that he was asked only to store the abalone, but his evidence
moved swiftly towards a situation where he explained
that he was
required to clean the abalone and place it in steel pans before
freezing it. The frozen abalone was placed in
5 and 10kg boxes
and driven through by him to Sea Freeze, at least from the beginning
of 2005. Du Toit never really explained
how it came about that
the storage facility morphed into a fully functional FPE.
332.
Du Toit said that during 2005 his daughter, Michelle, ran into
domestic problems and relocated to Cape Town from Johannesburg.
At the same time his uncle,
Oom
Des,
who then resided in Mpumalanga, moved down to Cape Town and the
Kendal Road house was rented to accommodate them. Initially,
accused 4 said he rented the house, but almost immediately changed
his evidence to suggest that the lease was taken in the names
of
either Michelle or
Oom
Des.
Du Toit went on to describe how the Hoheizen production facility was
relocated to Kendal Road. He did not explain
to the Court the
rationale for this move, but went on to explain how use was then made
of a mobile freezer mounted on a trailer
to freeze the product.
333.
Du Toit confirmed that the drop-off point for abalone moved from
Boston to a spot near the public rose garden in Durbanville.
The same dead-drop procedure was employed. He confirmed, too,
that the frozen cartons were delivered to the Maitland premises
belonging to Theunissen, and then taken through to V&A using a
Kia bakkie provided by Chao. Accused 4 says that he was
introduced to Africa by Chao at his house on Woodbridge Island and
was told that Africa would thereafter attend to the deliveries
of
abalone to V&A. He suggested to the Court that he had no
knowledge that the cartons were stamped with the word “Bait”,
nor did he know that quantities of pilchards were being used to mask
the product when it was palletised at V&A.
334.
We have difficulty in accepting this explanation. He was, after
all, in charge of the FPE at Kendal Road where
the “Bait”
stamp, Exhibit 1, which was handed to the police by Botha, was
found. Further, it is inconceivable
that Botha would have been
party to the concealment of the product through the use of the bait
stamp and the masking of the pilchards,
and yet not have disclosed or
discussed this with Du Toit. We believe Botha’s evidence
sufficiently implicates number
4 in these acts of concealment.
335.
Regarding his cell phone number, accused 4 consented to the handing
in of a document containing admissions made in terms
of section 220
of the CPA that he used the numbers 3601 and 8645 at all material
times. He also admitted the contents of
the data files supplied
by MTN in respect of both numbers in that document. These
admissions were made by his counsel at
a time when accused 4 was not
in court, having been excused from attendance to attend to a
bereavement out of town. Mr Uijs
SC, assured the Court that he
had discussed the matter with his client, that the admissions were in
order, and that accused 4 would
formally sign the list of admissions
on his return. In the result, however, the issue fell through
the cracks and the document
was never signed. The State,
nevertheless, proceeded on the basis that the admissions stood and
were binding on accused 4.
Significantly, accused 2 and 5, who
along with the other accused signed the same document, admitted that
both numbers were used
by Du Toit.
336.
Under a thorough and probing cross-examination by Ms Heeramun, Du
Toit claimed at one stage that he had never used 8645.
When it
was pointed out that he had made the section 220 admission, the
witness fell about while Mr Uijs SC, manfully sought to
take the
blame on behalf of his client. But there was never a formal
application by number 4 to withdraw the admission and
as matters
stand today he is bound thereby.
337.
In any event, we believe that the admission was quite correctly made
if regard be had to the cross-examination of this
witness. Ms
Heeramun took Du Toit through the cell phone records of 3601 and 8645
and demonstrated, with reference to cell
phone towers, how the two
numbers obviously travelled together in the same vehicle on
occasion. One saw how calls were made
on first the one number
and then the other, the calls being routed through the same towers
along the way. The inference was
irresistible that the accused
was using two phones, alternately, at the same time.
338.
Du Toit was unable to provide either a satisfactory or convincing
answer for this coincidence. But then, at another
stage, he
seemed to concede that he had used 8645. The reason for this
flip-flop in the witness box was obvious: Brink’s
spider
in Exhibit 4.16 showed a high incidence of communications between
8645 and 5069 – 150, to be precise, from 5 April
to 10 October
2006, and Du Toit was desperate to put distance between himself and
accused 2. But, when pressed for an explanation
regarding the
reason that he would have had so many communications with number 2,
Du Toit sought to fall back on the spike story,
which earlier had
seemed to require far less contact with Van Rensburg than he would
later have us believe. It was during
this passage of the
evidence that we lost all confidence in the credibility of Du Toit’s
evidence.
339.
The question that arises here is why it was necessary for accused 4
to operate two cell phone numbers. We consider
that his conduct
is no different to so many of the players in this piece where the use
of legitimate and
skelm
phones was part of the
modus
operandi
.
340.
Accused 4 made his last call on 8645 at 12h09 on 23 September 2006,
just four days after the V&A raid. It is
reasonable to
infer that he was concerned about the further use of this number,
since he thereafter made exclusive use of 3601.
A further
troubling issue is the fact that in the early evening of 6 October
2006, the very day of the Kendal Road raid, accused
4’s phone,
using 3601, moved from the Bellville area to the Strand area where it
remained overnight in the vicinity of towers
called “Onverwacht”
and “Strand Fire Station”. Du Toit told the Court
that he may have visited his
brother in the Strand, but he could not
recall why.
341.
It is not unreasonable to infer that at that stage accused 4 was in
contact with accused 5, who resided nearby in Somerset
West.
Also, at the time of the V&A raid, said Jaco Botha, he was on
holiday in Mossel Bay, and received a call from accused
4 to lie low
for a while and delay his return to Cape Town. Clearly, Du Toit
was worried about the continued safety of those
involved in the
Kendal operation as a result of the V&A raid. But why so,
we ask, if it was legitimate?
342.
Ultimately the lie is given to Du Toit’s feigned innocence on
the day of the raid at Brackenfell. Theunissen
testified that
he was not on the premises that day but was visiting someone in Still
Bay with his secretary, allegedly for work
purposes. He
testified that he received several frantic phone calls from accused 4
and 5 claiming that there was an impending
police raid at
Brackenfell, and asking him urgently to release their product which
had been stored there.
343.
Theunissen said that accused 5 was in arrears with the rental for the
freezer room, and that he thought that this was
a ploy to enable them
to escape settling their debt. He accordingly refused to
cooperate, and ignored the request.
Even when Potgieter
contacted him regarding accused 4’s stash he thought it was
still a game, but was eventually brought
to his senses when he was
told that armed police had arrived at Brackenfell. It once
again begs the question why, if the
Kendal Road operation was legal,
accused 4 and 5 were so eager to recover the abalone which had been
stored at Brackenfell?
344.
In relation to the suggestion that Chao was handling legitimate
abalone which he had bought on a State auction, we have
the evidence
of McKenzie that no permit was ever issued to Chao for the period in
question. In fact, no such permits had
been issued since 2002,
and it follows that neither Chao nor Du Toit could have possessed any
abalone lawfully during the period
2005 to 2006. We take note
of the evidence that the regulation of seized abalone was in a state
of flux at the time, but
the fact remains that accused 4 was unable
to produce any documentation to substantiate his claim of legality.
345.
In the indictment the State relies on the application of the
provisions of section 250 of the CPA in relation to all
of the
accused. That section, generally, places the
onus
on an accused person to establish the authority required,
inter
alia,
to conduct a business or possess
a particular item when he is charged with an offence that requires
statutory permission.
In the context of this case it would
require each of the accused charged under s18(1) of the MLRA to
produce a valid permit entitling
him to operate same. The same
applies in respect of the accused who are charged with the possession
of abalone under Regulation
39(1)(a).
346.
The purpose of the section is to lighten the burden of the
prosecution in not having to prove a negative. However,
once
such a certificate is produced, the onus remains on the State to
prove the contravention of the offence by showing that the
alleged
criminal conduct was not covered by the permit. (See
S
v Auby
1987(4) SA 535 (N) at
542E-543B.) In this regard, we are satisfied that Du Toit
failed to discharge the
onus
which he bore to prove that he was the holder of the required
permits.
347. In summary then in regard
to accused 4, we are of the view, firstly, that he has failed to
discharge the
onus
of establishing that his conduct was
lawful, and we are further satisfied beyond reasonable doubt that the
State has established
his
mens rea
in relation to all of the
charges that he still faces. He is accordingly liable to be
convicted on the FPE charge (Count 114)
as well as contravening
Regulation 39(1)(a) on each occasion that abalone was delivered on
behalf of Rapitrade to Sea Freeze and
V&A. The counts
involved here are 14, 15, 16, 17, 19, 21, 22, 23, 25, 26, 27, 28, 29,
30, 31, 32, 34, 35, 38, 39, 41,
42, 43, 48, 105, 107, 115 and 116.
The mass of the abalone involved in these deliveries amounts to
71 500 kilograms
or 71,5 tons. As with accused 3, the
abalone found at Kendal Road, Brackenfell and V&A, and that
returned from Singapore,
was not weighed, but found to consist of
24 831 units. At 200 grams per unit, the weight would be
of the order of 4 966
kilograms or about 4.9 tons.
ACCUSED
5 – JOHANNES EMIL LIEBENBERG
348.
The State witnesses who implicate accused 5 are Botha, Theunissen and
Brink, and he was also referred to by accused 4
in his testimony.
349.
As we have said earlier, accused 5 exercised his right to remain
silent. We know little of his private life other
than that he
is a chef by profession, who currently works on oil rigs around the
world. During the trial the Court was told
that he was first
working off the coast of Chile, and it later appeared that he was on
a North Sea rig as well. Theunissen
told the Court that accused
5 accompanied Du Toit on visits by the latter to both Maitland and
Brackenfell, and as we observed
earlier he also accompanied Van
Rensburg to Brackenfell when enquiries were made about the
manufacture of a stand-alone freezer
unit.
350.
Jaco Botha told the Court that he ran into Liebenberg at Brackenfell
from time to time and found that he was also storing
abalone which
was required to be transported through to V&A. This abalone
was initially stored in polystyrene boxes with
lids (as appears from
Exhibit J) and packed into 10kg cardboard boxes before removal to
V&A. Botha said that after the
V&A raid (and before the
Kendal Road raid) Liebenberg arrived at Kendal Road with a bakkie,
hooked up the freezer trailer and
moved it elsewhere. This
evidence was not challenged. It is not clear on whose
instructions Liebenberg acted, but it
is safe to infer that this came
on the instructions of Du Toit, who was in charge of operations at
Kendal Road, and after Du Toit
had spent the night of the 19
th
September in the Strand.
351.
The unchallenged evidence of Theunissen suggests that there was a
fairly close working relationship between accused 2
and 5. And,
as Mr Uijs SC, suggested to him in cross-examination in relation to
the person who was interested in acquiring
the freezer unit, it is
probable that accused 2 stood in a position of some authority over
accused number 5. By this we intend
to suggest that it is
probable that accused number 5 would defer to accused number 2, who,
in any event, seems to us to be a little
older than him.
352.
The bulk of the evidence against accused 5 is to be found in the cell
phone evidence. Liebenberg also used at least
two cell
numbers: 7652 and 1361. That demonstrates ample
communication between him, Van Rensburg and Du Toit, and many
calls
to Theunissen. Importantly, we consider, is the fact that on
7652 Liebenberg had 49 communications with the “Wayne”
number (5069), and 91 communications with Van Rensburg on 1734.
And, in the context of those many communications, we wonder
why
accused 5 was referred to by various persons on their lists of
contacts as “Koos Fish” rather than, for example,
“Koos
Caterer” or “Koos Kok”?
353.
Be that as it may, the evidence establishes that accused 5 delivered
quantities of abalone to Brackenfell shortly before
the raid and, as
pointed out above in relation to accused 4, he was eager to retrieve
same from the freezer facility shortly before
the police raid there.
His demands that Theunissen release the abalone to him, are capable
of only one inference: that
he exercised control over the
abalone, and he is therefore liable for conviction for contravening
Regulation 39(1)(a) on Count
116 in relation to 1 969 units of
frozen abalone. This is the same number of units included in
the number found to have
been controlled by accused 4 at
Brackenfell. Accused 5 is therefore directly implicated in one
predicate offence.
354. However, I am of the view
that the matter does not end there. Earlier I referred to the
doctrine of common purpose,
and it is appropriate at this stage to
consider whether the State has established any predicate offences
against accused 2 and
5 on the basis of a common purpose to
commercially exploit abalone with accused 4.
APPLYING
THE DOCTRINE OF COMMON PURPOSE TO ACCUSED 2,
4 AND 5
355.
In dealing with accused 4 we have made findings which establish the
following pattern of criminal conduct on his part.
Firstly,
Chao facilitated the provision of fresh, mostly shucked abalone to Du
Toit, the delivery whereof took place in circumstances
of secrecy.
Secondly, that abalone was processed, frozen and boxed at Kendal Road
under the ultimate supervision of accused
4, whereafter it was taken
to Theunissen’s cold storage facility (whether at Maitland or
Brackenfell) for storage prior to
delivery to V&A. That
delivery was undertaken by Botha, sometimes on his own and sometimes
with the assistance of one
of the Du Toit siblings. In this
phase of the operation Botha made use of a Kia LDV, probably under
the control of Chao.
356.
Thirdly, at V&A, Africa attended to the paperwork and other
administrative duties required to place the frozen product
in a new
storage facility, and then later to pack it into a container for
purposes of export. Chao assumed responsibility
for the
expenses incurred by Africa, as also the costs relating to V&A
and transhipment overseas.
357.
We know from Botha’s evidence that he and the others employed
at Kendal Road were all paid handsomely for their
work. He said
that, much like the members of a collective, each participant in the
operation received the same amount of
money every month. He
said he was paid by accused 4 and told that the total proceeds for
the month were divided up equally
by Du Toit who, himself, allegedly
took the same amount for himself. According to Theunissen,
accused 4 was regarded by him
as the person responsible for the
payment of the storage fees at his facility. What we do not
know, is where the money for
all of these payments by Du Toit came
from. At first blush it would seem that Chao was the most
likely source of finance.
358.
The State urged us to have regard to cell phone communications
between the principal role players around the time of
deliveries by
Rapitrade to V&A. The dates of deliveries can be
established from the GRVs issued by V&A in respect
of product
stored on behalf of Rapitrade. In most instances the charges
relating to Rapitrade involved more than one delivery
and hence more
than one GRV. It was suggested by Ms Heeramun that round about
the time of each delivery, i.e. a day or two
before or after:
1 Chao could be seen
communicating with accused 1 and 2 and Africa;
2
Du Toit routinely communicated with accused
2, Africa and Theunissen;
3
Botha could be seen communicating with
accused 4 and Africa; and
4
Van Rensburg could be seen communicating
with Africa, Du Toit and Theunissen.
359.
Having considered the source documentation in Files 4 and 5 (as
individually flagged by the State), we make the following
observations in relation to just two of the counts against these
accused:
A.
Count 41
1.
On 15 and 25 May 2006 there were two
deliveries of abalone to V&A at 10h58 and 10h07, respectively.
The GRVs relevant
to these deliveries are Exhibits 2.151a and 2.151b.
2.
The cell phone records relevant to the days
around the first of these dates show the following pattern:
a.
On 13 May 2006 Miller calls Chao twice:
at 12h47 and 13h54;
b.
On 14 May 2006 Africa (on 1874) calls Du
Toit at 19h47, and Pienaar at 19h50;
c.
On 15 May 2006 Du Toit calls Theunissen at
08h50;
d.
Africa
calls
Pienaar at 10h50;
e.
While Van Rensburg (on 5069) calls Du Toit
three times at 08h42, 09h55 and 11h11, and in between Van Rensburg
(then on 1734) also
calls Chao at 10h54;
f.
Shortly thereafter, at 11h08, Miller calls
Chao;
g.
And then at 12h24 Africa calls Chao;
h.
In the meantime, also on the 15
th
,
Africa calls Botha at 10h45 and 10h48, while
i.
Du Toit calls Botha at 10h37.
3.
For the delivery to V&A on the 25
th
,
the following calls are noted:
a.
On 24 May 2006 Van Rensburg (on 5069) calls
Du Toit (8645) at 11h03;
b.
On 25 May 2006 Africa (on 5353) calls
Pienaar at 07h26, and later again at 09h25, while
c.
Van Rensburg (on 5069) calls Theunissen at
08h51; and
d.
Africa
(on 0270)
calls Van Rensburg (on 5069) at 08h54; and
e.
Then Du Toit calls Botha at 09h01, and
Africa (on 1874) calls Botha twice, at 09h32 and 09h48;
f.
On 26 May 2006 Miller phones Pienaar at
08h21.
B.
Count 42
1.
There are two GRVs relevant to this count
relating to deliveries on 5 and 8 June 2006. (Exhibits 2.156a
and 2.156b.)
2.
For the delivery on 5 June (which occurred
at 13h16) the following calls are relevant:
a.
On 4 June 2006 Pienaar calls Africa at
14h09;
b.
On 5 June Du Toit calls Botha five times:
06h21, 09h31, 10h43, 14h32 and 15h32;
c.
Van Rensburg (on 5069) calls Africa (1874)
at 09h48 and 13h32, Du Toit (on 8645) at 09h49, Chao at 10h17, and
Theunissen at 11h14
after Theunissen had called him earlier at 10h19;
d.
Chao calls Africa at 11h10; and
e.
Africa
(on 1874)
calls Du Toit (8645) at 10h53 and 12h48, and Botha at 12h49;
f.
On 6 June 2006 Theunissen calls Du Toit at
11h29; and
g.
Africa
calls
Pienaar at 11h35;
h.
While Van Rensburg (1734) calls Chao (1789)
at 09h53; and
i.
Miller calls Chao at 13h08.
3.
For the delivery on 8 June 2006 the
following calls are relevant:
a.
On 7 June Africa (5353) calls Pienaar at
11h53 and 14h46; and
b.
He also phones Du Toit twice, at 09h28 and
13h40, while
c.
Africa
(1874)
calls Van Rensburg (5069) at 17h59, who immediately calls (on 5069)
Du Toit (on 8645) at 18h08.
d.
At the same time Chao (on 1789) calls Van
Rensburg (1734) at 17h59.
e.
On 8 June there is a host of calls with
Africa (on 1874) calling Du Toit at 09h28, 11h41, 12h19 and 12h29.
f.
Also Africa (on 1874) called Van Rensburg
(5069) at 10h32 and Pienaar at 13h06, after Pienaar had called him at
12h03; and
g.
Van Rensburg (5069) called Du Toit (8645)
at 13h02, 15h08 and 19h04.
h.
Lastly, on the 8
th
,
Du Toit called Botha at 09h15, 11h42, 11h44, 12h08, 12h19, 12h28,
14h40, 15h09 and 15h17, Theunissen at 12h05, who had earlier
called
Botha at 10h42.
360.
Based on this analysis, we see some very interesting patterns.
Van Rensburg usually uses his contract phone (1734)
to call Chao,
while he uses 5069 to call Africa (on 1874) and Du Toit (on 8645) –
in effect, three
skelm
phones
talking to each other. Further, we note regular contact between
Van Rensburg, Africa, Du Toit, Botha, Theunissen and
Chao in the
immediate proximity of deliveries to V&A on behalf of Rapitrade.
We know from the evidence of Africa, Du
Toit and Botha that such
deliveries related exclusively to abalone, and that Chao was the
ultimate beneficiary of these deliveries.
And, having regard to
accused 4’s evidence, it is fair to conclude also that Chao
participated, whether directly or indirectly,
in the supply of the
product to Du Toit for processing.
361.
We have already commented on the fact that accused 2 seemed to enjoy
a fairly comfortable lifestyle. We know, too,
from the
cross-examination on behalf of Van Rensburg, that he claimed to be
involved in the local fishing industry in Hermanus,
and that he also
claimed to trade lawfully in abalone on occasion. And a month
or two before the raid at Brackenfell, accused
2 had made enquiries
about the purchase of a freezer unit which, while it may be said to
have been suitable for fish products generally,
would have been ideal
for the blast freezing of abalone. The evidence further
suggests that he was amenable to paying in
excess of R50 000 for
that equipment.
362.
We have already rejected accused 4’s suggestion that his
extensive communications with number 2 related to the
purchase and
supply of security spikes as being not reasonably possibly true in
the circumstances, and we note that Van Rensburg
did not take the
witness stand and support these claims by Du Toit, nor did accused 2
endeavour to explain the reason for the many
calls made between him
and the various persons referred to above – most importantly
Africa, whom he (number 2) ostensibly
had no reason to call.
While the records show that he was in the thick of it all, Van
Rensburg sought at all costs to distance
himself from the use of the
number ending 5069. We have found that denial to be untenable.
363.
There is, in our view, no explanation for these calls in
circumstances where such an explanation is reasonably expected.
For instance, aside from calls to and/or from Chao, Du Toit,
Liebenberg and Theunissen, what reason did Van Rensburg have to speak
to Africa or accused 3? And if those communications were for a
legitimate purpose, why did Van Rensburg not take the Court
into his
confidence?
364.
In the result we are driven to the conclusion that the only
reasonable inference to be drawn from all of the prevailing
facts and
circumstances is that the communications which Van Rensburg had with
these key players in the piece at the times of deliveries
must have
related to abalone, and in particular to accused 4’s processing
facility at Kendal Road.
365.
There is, however, an important aspect of Botha’s evidence
which is relevant here, too. In examination in
chief Botha was
asked about the involvement of accused 2 in relation to Du Toit’s
operation at Kendal Road. The following
appears at page 578 of
the transcript, where the witness was being led by Ms Greyling in
relation to the acquisition of metal pans,
cleaning materials and
packing boxes used at Kendal Road:
"Het u ooit geweet wie die
geld verskaf het om al hierdie goed te koop? Ek
het nie geweet
nie, maar ek het gehoor daarvan, ja.
Wie het vir u
gesê? Die eerste een wat my
vertel het, was
Michelle,
en
toe oom Tony.
Nou vertel vir
ons wat oom Tony vir u vertel het?
Dat
die geld van Willie kom.”
(
Emphasis
added.)
366.
That evidence was never challenged by Mr Uijs SC, during the
cross-examination of Botha, and given that he represented
both
accused 2 and 4, he would have been in a position to take
instructions from both men in relation to the veracity of this very
material piece of evidence. The State was therefore entitled to
accept that this point was not in issue, and it did not need
to
adduce any further evidence to establish that accused 2 was the
financier. As we have said, Du Toit’s claim that
he knew
nothing of accused 2, other than in the context of the supply of
spikes, is not worthy of serious consideration and falls
to be
rejected as false.
367.
Snyman
, at
256
et seq
,
has a detailed discussion of the doctrine of common purpose.
While noting that the doctrine has not been limited to consequence
crimes (the learned author cites cases involving the unlawful
possession of firearms), he explains, with reference to a consequence
crime such as murder, that the doctrine of common purpose has been
accepted and regularly employed in our law to ease the burden
of
proof on the State in criminal matters.
"In order
inter alia
to
overcome difficulties relating to causation as explained.....above,
the courts apply a special doctrine, called the common purpose
doctrine, to facilitate the conviction for murder of each separate
member of the group. The essence of the doctrine is that
if two
or more people, having a common purpose to commit a crime, act
together in order to achieve that purpose, the conduct of
each of
them in the execution of that purpose is imputed to the others.
The doctrine is couched in general
terms and therefore not confined to one type of crime only.
However, the best-known application
of the doctrine – at least
in our reported case law – is to be found within the context of
the crime of murder.
The discussion of the doctrine which
follows, will, for the sake of simplicity, therefore be limited to
its application to the
crime of murder.
The crucial requirement is that the
persons must all have the intention to murder and to assist one
another in committing the murder.
Once that is proved, the act
of X, who actually shot and killed Y, is imputed to Z, who was a
party to the common purpose and actively
associated himself with its
execution, even though a causal relationship between his (Z’s)
act and Y’s death cannot
readily be proved. X’s act
is then regarded as also that of Z.
It is not unjust to impute X’s
act which caused the death, to Z. By engaging in conduct in
which he cooperates with
X’s criminal act, Z forfeits his right
to claim that the law should not impute to him another’s
unlawful act.
He signifies through his conduct that the other
person’s (i.e. X’s) act is also his.
The basis of the
doctrine used to be the idea that each member of the plot or
conspiracy gave the other an implied mandate to execute
the unlawful
criminal act, and accordingly the liability of those participants in
the common purpose who did not inflict the fatal
blow depended on the
question of whether the unlawful criminal result fell within the
mandate.”
368.
Applying that analogy to the present case, we find the following
scenario. Accused 4 is actively involved in the
serial
contravention of Regulation 39(1)(a) by unlawfully possessing or
controlling abalone for commercial purposes, and he does
so without
the requisite permit. His control runs from the time of
acquisition of the abalone through the processing thereof
to the
delivery of boxes of frozen abalone to V&A. That is akin to
“
X’s criminal act”
described by Professor Snyman above. Accused 2’s
cooperation in those criminal acts is to be inferred from his
communication
with the main role players (Du Toit, Chao, Africa and
Botha) at the critical time of delivery of the product to V&A.
And so, accused 4’s criminality is imputed to accused 2 through
the doctrine of common purpose.
369.
Further, Botha’s evidence provides the obvious reason for the
frequency of communication between accused 4 and
the main actors
involved in the enterprise, and it is reasonable to conclude, in the
circumstances, that Van Rensburg had a common
purpose with accused 4
in relation to the running of the FPE at Kendal Road in furtherance
of the enterprise’s objective,
which was the commercial
exploitation of abalone.
370.
The frequency of calls around the time of Rapitrade deliveries to V&A
in relation to Counts 41 and 42, in our view,
certainly brings
accused 2 within the purview of the contravention of Regulation
39(1)(a) through the application of the doctrine
of common purpose,
but his criminal liability is not limited to just those two counts
which we have examined in detail. In
light of a similar pattern
of conduct in relation to the other deliveries on behalf of Rapitrade
to V&A, Van Rensburg is further
implicated in the counts relevant
to those deliveries through the application of the doctrine of common
purpose. Similarly,
his financial support for accused 4’s
operation at Kendal Road renders him liable, through the doctrine of
common purpose,
for conviction in regard to Count 114, that is the
unlawful operation of the FPE at those premises.
371.
As regards accused 5’s involvement in this common purpose,
there is a high incidence of calls between him and Theunissen
in
September 2006. We know, too, from the evidence of Botha and
Theunissen that this coincides with the time during which
accused
number 5 was regularly seen at Brackenfell delivering abalone.
But Liebenberg’s phone records do not show any
particular
pattern, other than a reasonable number of calls to Van Rensburg and
a few to Du Toit.
372.
Also, we have observed from the cell phone towers that accused number
5 was often in Gauteng and in other parts of the
Southern Cape
Peninsula, such as Grassy Park and Plumstead. These are not
areas often frequented by Van Rensburg or Du Toit
if one has regard
to the towers through which their cell phone numbers were routed.
There is a high level of suspicion about
just what accused 5 was
doing in the operation, but it seems to us that he was more aligned
to accused 2 than to accused 4, as
the freezer enquiries from
Theunissen suggest. Also, he was a regular deliverer at
Brackenfell in September 2006, but not
on behalf of Du Toit.
This tells us that accused number 5’s abalone came from another
processing enterprise.
373.
While it is obvious that he was delivering abalone that was
ultimately being exported by Rapitrade, what we do not know,
is
exactly when accused 5 began participating in the keeping of abalone
for commercial purposes on behalf of that entity.
We cannot
say, as we can in the case of number 2, that Liebenberg was part of
the scheme from the outset. If he is to be
drawn in through the
doctrine of common purpose, he is more likely to resort under the
“joining in” category of participants
contemplated in
Mgedezi
.
374. That situation brings a
fresh inquiry of its own. Has the State established the
mens
rea
of accused 5 in relation to number 4’s activities?
Did he know that the abalone he was storing was for the operation
being run by Du Toit (and by implication Chao), and has the State
shown that he knew the extent of that operation? We believe
that it has failed to do so. In this regard there was evidence
which it might have adduced from Africa, Botha and Theunissen
in
relation to the cell phone records, which it failed to do. In
the result, while the case for common purpose might have
been
established against Liebenberg if this were a civil matter, we are
not satisfied that this has been shown beyond reasonable
doubt.
ACCUSED
6 – RODNEY ONKRUID
375.
The State witnesses who implicate accused 6 are Zolile Machaba, Adam
Wildschutt, Africa and Inspector Carstens, who took
his warning
statement, Exhibit PP. There are no cell phone records in
respect of Onkruid.
376.
Machaba, then a police officer stationed at Bellville South,
testified that he participated in the raid at Hercules Street
and
that he arrested several persons there, one of whom was Onkruid.
However, Machaba did not say where on the yard he apprehended
accused
6. He accordingly did not link Onkruid directly to either the
fresh abalone lying under the lean-to or in the freezers,
or any of
the abalone-processing paraphernalia lying around on the yard.
377.
We have reviewed photographs 27 to 48 in Exhibit C and can see from
them that it is a sizable, ramshackle yard filled
with a variety of
items from rusty, old lorries and piles of firewood to bags of salt
and abalone in deep-freezers. In the
circumstances, it is
important to know exactly where accused 6 was apprehended to
establish whether it can be said beyond reasonable
doubt that he was
in possession of abalone, or participating in the activities of the
FPE that was being conducted there.
The evidence of the
arresting officer does not assist us in any way in resolving this
issue.
378.
As I have said earlier, Adam Wildschutt testified that on one
occasion accused 3 asked him to deliver some salt to a
farm near
Stanford. He was accompanied on this trip by accused 6, who
presumably helped offload the salt. That evidence
was not
challenged.
379.
Africa told the Court that he met accused 6 at an engineering works
belonging to Johan Kloosman in Maitland when he went
to collect a
batch of metal trays that were used to freeze the abalone.
Africa also told the Court that he saw accused 6
at V&A on one
occasion when a vehicle belonging to number 3 was being offloaded
with cargo for Syroun. From this he drew
the conclusion that
Onkruid was one of “Gavin’s guys”. Mr
Banderker exposed some doubt regarding the alleged
time of this
delivery when he demonstrated to Africa in cross-examination that
accused 6 was in custody at the time, having been
arrested at
Hercules Street.
380.
We are satisfied that there is sufficient evidence to link accused 6
to accused 3, and that he probably was one of “Gavin’s
guys”. However, that finding is not sufficient to link
accused 6 to the abalone found at Hercules Street: his
mere
membership of that number is not sufficient to attract criminal
liability for possession of abalone in the circumstances.
381. In his witness statement
taken by Inspector Carstens, Onkruid claimed that he had visited the
yard that day to see one
Derek Wildschutt (apparently a relative of
number 3 and one of those also arrested at Hercules Street) to
collect wood from him,
and that he was not near the abalone when
arrested, but sitting near a fire. It was June, it was probably
cold, and on the
strength of the facts to hand we cannot say that
that explanation falls to be rejected as not being reasonably
possibly true in
the circumstances. It follows that the State
has failed to establish the commission of any predicate offence on
the part
of accused 6.
ACCUSED
8 – DESMOND DAVID PIENAAR
382.
The witnesses who refer to Pienaar are Africa, Potgieter and Miller,
while the accused testified in his own defence.
As we have
already said, it is common cause that in 2005 to 2006 Pienaar was
employed at V&A as a cold store supervisor.
His immediate
superior was accused 9, Gregory Abrahams, who was the manager of the
cold store. Pienaar’s work embraced
a number of
functions, but for the purposes of this case it will suffice to refer
to just the following.
383.
All products which were brought in for storage at V&A passed
through the supervision of accused 8. He was responsible
for
booking the product in and issuing a GRV and seeing to it that the
product was removed from the loading bay and safely stored
at its
designated place in the cold room. Like Africa, Pienaar had
worked in the industry for many years, and both were in
agreement
with the standard operating practices applicable at V&A in 2006.
So, for instance, all products had to be frozen
in advance to a
temperature not less than minus 12 degrees Celsius, as we recall.
If it was warmer than that, it would be
turned away or sent to a
blast freezer, which would attract an additional cost for the client.
384.
Pienaar explains that V&A made use of a computerised storage
system which automatically allocated a predetermined
place in the
cold room where the product was to be kept. This location was
not fixed by human hand, and once the computer
had allocated a space
the product (which was required to be palletised and covered in
plastic wrap) would be taken there by forklift.
When the
product was required to be removed from the cold room, it was easily
located through the computer system and was retrieved
by forklift
before being loaded into a container or transported elsewhere.
385.
Africa testified that when he became involved with Chao’s
business he was told that accused 8 and 9 were already
“on
board” or in the know, as it were. He was told by Chao
that their function was to ensure “safe passage”
while
the product was in the warehouse. For this, Chao allegedly told
Africa, they were to be paid a fixed amount per container.
Africa said that Miller, and later he, attended to these payments,
which were of the order of R10 000 per person per container.
Pienaar disputed such payments, and Abrahams’s case, through
the cross-examination by Mr Fransch, was that he did, too.
However, both men admitted receiving money from Africa for so-called
“spotter's fees”.
386.
Pienaar claimed that due to the computerised nature of the storage
system, he did not have effective control of the abalone
once it was
stored in the cold room. He suggested that the fact that he did
not allocate the exact place where the abalone
was to be stored,
implied that he could not control its location.
387.
We think that that argument misses the point. The supervisor
had access to the computerised system at all material
times. By
feeding in a customer name or a location code and pressing a button
the cold storage supervisor could immediately
have access to the
contraband product. And, if it ever became necessary to
preclude the product from being detected by either
a superior at V&A
or the law enforcement authorities, the product could be shielded or
moved by him to another place in the
cold store.
388.
Importantly, too, if the supervisor was aware of the illegal nature
of the contents of a pallet stored in the cold room,
he was no doubt
duty-bound to inform the owners of the business (or at least his
manager) thereof, lest the business be held accountable
for illegal
possession. By agreeing to maintain his silence in this regard
for a fee, the supervisor most certainly guaranteed
“safe
passage” of the abalone through the refrigeration process.
In the circumstances, we are satisfied that
accused 8 exercised the
requisite degree of “
keeping or
controlling”
as contemplated in
Regulation 39(1)(a), and that the State has established his
actus
reus
in that regard.
389.
The question that then follows, is whether the State has succeeded in
establishing the requisite
mens rea
(or criminal intent) on the part of Pienaar. Central to this
inquiry is whether the State has proved beyond reasonable doubt
whether accused 8 had knowledge of the content of the cartons stored
on behalf of Rapitrade and Syroun. There are various
considerations at play here
viz
whether Africa is to be believed when he says that Pienaar was in the
know from the outset; whether he is further to be believed
regarding the payment of commission (as opposed to spotter's fees) to
Pienaar, and whether the meeting with Africa and Chao at
Grand West
Casino went as Africa claimed or as Pienaar said it did.
390.
According to Africa, Miller and Pienaar, the payment of a spotter's
fee is commonplace in the wholesale fish market.
It is
fundamentally based on knowledge of what stock is available on the
one hand and who is looking to buy on the other hand.
In that
situation the “spotter” is paid a small commission by
either the seller or the purchaser, (and if he is lucky,
by both),
for bringing the seller and the purchaser together.
391.
Pienaar explained that this practice, while rife, is not one which
his employer would have sanctioned, and he insinuated
that his
erstwhile boss, Mr Fernandes, would not have taken kindly to
discovering that he was involved in the practice. For
this
reason, said Pienaar (and Africa confirmed), payments were
customarily made in cash placed in plain envelopes and delivered
outside of the workplace, usually at his or Africa’s home.
392.
Pienaar said that he and Miller were old acquaintances. Indeed,
through another strange twist of fate, Pienaar
said, he got to know
Brink and Smal when he, too, was put through his paces by Miller at
the False Bay Diving School. Be
that as it may, Pienaar said
that when Miller became involved with Rapitrade in about 2003, he was
paid spotter's fees by Miller
from time to time. That was not
only in relation to pilchards, but also ribbon fish and jacopever.
Accused 8 said that
these payments by Miller came to an end when FTE
went out of business, but, he added, in 2005 and 2006 Africa
continued to pay
him spotting fees when he ran short of pilchards.
393.
Initially, Pienaar spoke of Africa with a degree of admiration.
He described his own personal life, growing up
in the rough,
working-class neighbourhood of Manenberg on the Cape Flats and his
eventual ability to hold down a good job in a
tough industry,
dominated by white men, much like that of Africa. Pienaar said
he was most impressed when he saw that Africa
was in charge of his
own company and that he treated those who assisted him at the cold
store most benevolently. However,
said Pienaar, having heard
Africa’s evidence and the profound untruths about which he
testified, he had lost all respect
for the man he castigated as a
shameless liar.
394.
It is necessary to comment briefly on accused 8 as a witness.
He came across as a well-spoken, confident person
who was proud of
what he had achieved (and, we would say, rightfully so), and
devastated by the consequences of being implicated
in this matter.
He said that it had cost him dearly. Among the many witnesses
that we heard in this case, Desmond Pienaar
stands out as one of the
best. In his evidence he compared the Africa that he knew with
the Africa that he saw in the witness
box, and spoke of “chalk
and cheese”. We would say the same about Pienaar when
compared to Africa as a witness.
He gave evidence in a clear
and forthright manner, and we are not aware of any material
contradictions, whether internal or external,
in his evidence.
395.
Pienaar said that he had no knowledge of a box of abalone bursting
open at V&A in late 2004 which led to the move
to Sea Freeze.
Africa’s version on that score was in any event garbled and
hard to follow, and we are unable to reject
Pienaar’s version
on this aspect as not being reasonably true in the circumstances.
396.
Africa testified that on one occasion at V&A a box was delivered
(we think it was on behalf of Syroun) which contained
partly frozen
contents and from which slime was allegedly leaking. He said
that the employees at V&A refused to accept
it as it was not
properly frozen, and so he called Chao to inform him thereof.
Africa said that Chao told him to speak to
Pienaar and that the
latter would make a plan, which he did.
397.
Pienaar denied the incident and, in any event, pointed out that not
only did company policy prohibit the receipt of such
product, but
that it would have to have been placed in a blast freezer to bring
the temperature down to the requisite level.
This did not
happen. Once again, in the absence of any evidence to support
Africa’s claim (for instance an erstwhile
employee at V&A
who had first-hand knowledge of the incident), we are not prepared to
find that Pienaar is to be disbelieved
on this point.
398.
In relation to the payment of spotter's fees in 2006, there is no
dispute between Africa and Pienaar as to the exchange
of money.
While Africa claims that the payments were made pursuant to Chao’s
instruction to keep those responsible
for “safe passage”
on their side, we cannot ignore the fact that Africa was struggling
to find supplies of pilchards
in 2006 and would most certainly have
benefited from the assistance of a spotter. There is
accordingly nothing inherently
improbable in Pienaar’s version
on this score.
399.
Africa testified that a month or two before the V&A raid he,
Pienaar and Chao dined together at a fish restaurant
at the Grand
West Casino. He said that at the meeting Pienaar cautioned Chao
to slow down his supplies of abalone and went
on to point out that
Pienaar had said that there was a shortage of 10kg packs of pilchards
in the industry, that 5kg boxes were
being used, and that people were
suspicious of the fact that Rapitrade and Syroun had managed to
access 10kg boxes of “Bait”.
400.
Pienaar’s version of that meeting is that Africa had picked him
up at his home in Kenilworth and driven through
to the casino for a
meal. While there, he said, Chao pitched up unexpectedly and
joined them. Nothing of any great
moment was discussed, said
Pienaar. While it is true that some of the photographs taken
during the V&A raid show the
presence of 5kg boxes of pilchards
covering the boxes of “Bait”, Pienaar testified that
there was no shortage in the
marketplace at that time, thereby
implying that the use of 5kg boxes was purely fortuitous.
401.
The State did not seek to lead evidence in rebuttal as to the state
of the market then. Further, we believe that
this is one of
those instances where the evidence of Chao may have led to the Court
taking a different view on the evidence.
In the circumstances,
we are unable to reject Pienaar’s version on this issue as not
being reasonably possibly true.
402.
There is, however, one aspect of Pienaar’s evidence which
causes us concern. He told the Court that at the
time he had
two cell phone numbers (8920 and 9138) which were used
interchangeably. In some circumstances, he said, one phone’s
battery might run flat, and then he would put it on charge while
using the other phone. Pienaar said that one phone belonged
to
V&A and the other was his, and that in respect of the latter he
was compensated by his employer for his work-related calls.
403.
In a thorough and probing cross-examination Ms Van der Merwe showed a
high frequency of calls between Africa and Pienaar
in the six-month
period prior to the V&A raid. These calls appeared to be,
on average, at the rate of two to three per
week, and often coincided
with deliveries of abalone by either Rapitrade or Syroun.
Significantly, one sees no communications
between Chao and Pienaar,
but there are a few calls between him and Miller. We can find
nothing untoward in either the frequency
of the calls or the parties
to whom Pienaar spoke. After all, he would have had to speak to
Africa in relation to deliveries
to V&A.
404.
Ms Van der Merwe concentrated on a number of calls made immediately
after the raid, which are usefully depicted in linear
form in Exhibit
4.2 which was drawn up by Brink. This document shows, at around
06h50 of the morning of the raid, a call
from accused 9 to number 8
and thereafter a call by number 8 to number 1. Miller can then
be seen communicating with Chao
on two occasions in short
succession. Later in the morning and early afternoon of 19
September Chao called Pienaar on a couple
of occasions, some of these
calls being of several minutes’ duration, and there were a
number of calls from Africa to Pienaar
that day, some of them well
into the night.
405.
When pressed for an explanation in the witness box by the prosecutor,
accused 8 explained that he had been contacted
at home by accused 9
and told that abalone had been found amongst Africa’s
products. Pienaar was requested to come
to work immediately,
and he said that while he was on his way he received a further call
from Abrahams who told him that Africa
(of whom Abrahams was said to
have been suspicious and uncomplimentary) had asked him to call
Miller and tell him what had happened.
406.
Pienaar said that he did so as a favour to two old friends in the
industry. The question that immediately springs
to mind is why
Africa would want to inform Miller of the situation if Miller was not
involved in any way. But that conundrum
need not be resolved
now. If the purpose was ultimately to inform Chao, one would
have expected that if Pienaar had been
in cahoots with him, he would
have called Chao immediately himself. He did not do so, and his
explanation for calling Miller
cannot be faulted.
407.
The calls from Chao to Pienaar later during the day were all incoming
calls, one such call being of about seven minutes.
Pienaar said
that initially Chao was looking for Africa and asked to speak to
him. He told Chao that Africa was busy with
the police, but
Chao was persistent and called again not long thereafter, wanting to
know what was going on. Pienaar says
he explained to Chao that
abalone had been found amongst Africa’s products in the cold
store and that the police were busy
investigating. Pienaar’s
ability to properly explain these communications with Chao was
rightfully criticised by the
State.
408.
In argument Mr Fransch pointed out that most of the calls were in one
direction – from Chao to Pienaar –
and he suggested that
this was consistent with Pienaar’s version and not consistent
with the version of one who would have
been expected to call his boss
the moment trouble ensued, thus dispelling the notion of “safe
passage”. In addition
counsel pointed to Pienaar’s
evidence that Chao spoke with a heavy Chinese accent which was
difficult to follow on occasion,
that he may have had to repeat
himself to be understood, and that Pienaar was taking calls while he
was on the factory floor, and
that this may also have accounted for
the protraction of such calls.
409.
Then the State tackled Pienaar on a number of calls between him and
Africa on 21 and 22 September 2006. This is
after Africa had
been released from custody and granted bail on the basis that he
would be assisting the police as a possible section
204 witness, and
immediately prior to Pienaar’s arrest on the afternoon of
Friday, the 22
nd
.
Those calls were long, in both directions, and in some instances late
at night.
410.
Pienaar was persistently unable to give any explanation as to what
the topic of conversation may have been, claiming
that it happened
long ago and that his memory had left him in the lurch. Of
course, that is a fair answer, but surely he
must have had some
recollection of what the topic of discussion was. After all,
the earlier rationale for their communications
(arranging deliveries
of abalone or the packing of containers) fell away with the raid on
the 19
th
September. We regret to say that during that part of his
cross-examination Pienaar was far less convincing than before.
411. When we evaluate accused
8’s evidence we must approach it on the basis of the
dictum
of Watermeyer, AJA, in
R v Difford
1937 AD 370
at 373:
"It is
equally clear that no
onus
rests on the accused to convince the Court of the truth of any
explanation he gives. If he gives an explanation, even if
that
explanation be improbable, the Court is not entitled to convict
unless it is satisfied not only that the explanation is improbable,
but that beyond any reasonable doubt it is false. If there is
any reasonable possibility of his explanation being true, then
he is
entitled to his acquittal.”
412. When reviewing the evidence
of accused 8 in the context of all the other evidence before the
Court, we are bound to say
that we cannot hold that his version is
false beyond any reasonable doubt. The latter part of his
testimony under cross-examination
certainly has blemishes, but the
suspicions which these engender, are not sufficient to persuade us
that the
mens reas
of Desmond Pienaar has been established
beyond reasonable doubt. In the circumstances, we cannot find
that the State has
proven any predicate offences against accused 8.
ACCUSED
9 – GREGORY ABRAHAMS
413.
The evidence which implicates accused 9 is limited, Africa being the
only witness who referred to him, and then only
in respect of the
receipt of commissions from Chao for guaranteeing “safe
passage” of the abalone through V&A.
In considering
the veracity of those allegations we are obliged to bear in mind that
Abrahams did not enter the witness box and
take the Court into his
confidence. Those allegations are therefore unchallenged by
accused 9.
414.
We have the evidence of accused 8 as to the basis of payments made to
him on behalf of Chao. We know, too, from
Pienaar’s
unchallenged evidence that Abrahams functioned at a different level
at the V&A cold storage business –
both departmentally in
the company, and physically on the premises. Abrahams was the
manager of the three supervisors (which
included Pienaar) who were on
the factory floor, while he occupied an office on the upper level of
the building. On a day-to-day
basis he had far less to do with
the public delivering and collecting product than number 8 and the
lower-level employees.
415.
In cross-examination Pienaar said that he did not know for a fact
whether Abrahams ever received spotter's fees, although
he suspected
that he might have. Assuming that this was so, we have found
that number 8’s evidence on the
causa
for the receipt of money emanating from Chao could not be rejected as
false. We are bound to apply this reasoning to accused
9, even
though he has not testified, on the basis that it is not likely that
money would have been advanced to Abrahams on any
ground different to
that on which it was to Pienaar. We are not prepared to accept
the uncorroborated evidence of Africa
on this point.
416. In the result we are unable
to find beyond reasonable doubt that the State has established that
accused 9 has committed
any predicate offence.
THE
IMPLICATIONS OF THE FINDINGS ON THE PREDICATE OFFENCES IN THE
APPLICATION OF POCA
417.
We now turn to the POCA charges. As we demonstrated at the
outset, once the State has conclusively established
the commission of
two or more predicate offences on the part of an accused it is
entitled to ask the Court to find that such accused
has participated
in a pattern of racketeering activity in the enterprise. To
repeat the
dictum
in
De Vries
in the SCA:
"In order
to secure a conviction under s2(1)(e) of POCA the State must do more
than merely prove the underlying predicate offences.
It must
also demonstrate the accused’s association with an enterprise
and a participatory link between the accused and the
enterprise’s
affairs by way of a pattern of racketeering activity.”
Once again, we will deal with the
accused individually as we apply the provisions of POCA, and in
particular s2(1)(e) thereof.
ACCUSED
1
418.
In our finding in respect of the predicate offences we held that
accused 1 is liable for conviction as an accomplice
for the
contravention of Regulation 39(1)(a). Our finding in that
regard covers the period in 2005 when pilchards were supplied
to
Rapitrade by Pesca at Sea Freeze. As stated earlier, we are
satisfied that Miller knew of the existence of the unlawful
enterprise being conducted by Chao, and willingly participated
therein during 2005.
419.
What of 2006? The cell phone records show that Miller was in
regular communication with,
inter alia
,
Africa and Chao during 2006. At that stage, said Miller, he had
embarked upon a new venture: the installation of a
fish-processing facility at Humansdorp in the Eastern Cape.
This, he said, necessitated him travelling to the Eastern Cape
regularly during that period.
420.
When asked to explain the necessity for these communications with
Chao (who would have had no interest in the Humansdorp
project),
Miller suggested that he and Chao had other ongoing business
interests,
inter alia
the marketing of electric scooters and electric pumps for water
features. The first time the Court heard of these was when
Miller testified. No mention had been made thereof in the
cross-examination of any witnesses who may have been able to comment
about the veracity of the allegations, for example Africa, who seemed
to be in the know about most things.
421.
We are of the view that this explanation must be viewed with
circumspection, because the very reason that Miller applied
to reopen
his case was to seek to offer an innocent explanation for his cell
phone communications which the State had heavily criticised
in its
initial argument.
422.
In relation to the number of calls made between Miller on 1666 and
Africa during 2006, Miller was in a bit of a spot.
It was
common cause that he had stopped supplying pilchards to Africa at the
end of 2005 when, according to Africa, Chao had worked
Miller out of
the business, claiming that he was dissatisfied with the quality of
the pilchards supplied. On the face of
it, therefore, there was
no reason for the two old acquaintances to be talking to each other
any longer.
423.
However, Miller said that he knew that Africa was still working for
Chao in 2006, and that he received calls from Africa
from time to
time, asking for advice regarding the availability of pilchards and
quizzing him on the price thereof. Miller
admits that he
furnished such information, claiming that he was still in the know in
the pilchard market.
424.
I consider that the mere furnishing of such advice to Africa would
have been to the benefit of the enterprise, generally,
in that it
facilitated the provision of pilchards used to mask the export of the
abalone. In this activity then we see Miller
participating
indirectly in the affairs of the enterprise through a pattern of
racketeering activity in 2006 as contemplated in
s2(1)(e) of POCA.
425.
But this is not all. Miller told the Court that after the
collapse of FTE there were several debts outstanding
to unpaid
creditors who had supplied him with pilchards. One of these was
a company in Kommetjie called Komicx. He
said that he repaid
that entire liability over the years as he wished to preserve his
good name in the marketplace. He did
this by passing on orders
to Komicx in respect whereof he would ordinarily be entitled to a
commission, and then forfeiting the
commission in favour of Komicx in
settlement of the debt.
426.
One sees on some of the GIVs relating to exports processed by Africa
the provision of pilchards by Komicx. In the
circumstances it
is not unreasonable to conclude that Miller may have had a hand in
sourcing these supplies. On other GIVs
we see pilchards
supplied by “P Miller”. Accused 1 readily agreed in
the witness box that this could only have
been a reference to him.
But, he said, it wasn’t he who had supplied the pilchards.
427.
Miller explained, and accused 8, Desmond Pienaar, confirmed that for
purposes of traceability in the cold chain process
a product is
always booked in under a designated name (and the client could choose
any name, as we see with Africa nominating Rapitrade,
Syroun or Cross
Berth, as the batch name), and once so booked in it remained
classified under that name forever. So, for
example, if
Bongolethu Fishing had stored 20 tons of pilchards at V&A and
Africa had bought 10 tons thereof to have a ready
supply for masking
purposes, the batch name would always be referred to in documentation
as “Bongolethu”, even though
it then belonged to
Rapitrade.
428.
So, we ask, what was the source of the “P Miller” batches
used by Africa in 2006? Miller denied any
knowledge thereof and
said that this must have been a batch of pilchards stored by someone
else under his name. The explanation
is difficult to follow,
but what is certain is that when those batches arrived at the cold
store someone chose to associate them
with Phillip Miller. Why
his name if he had no interest in them? We believe that this
evidence, too, demonstrates that
Miller was still involved with the
enterprise in 2006 even though, as Africa claimed, Miller did not
supply pilchards to him.
429.
The participation of Miller becomes all the more clear on the day of
the V&A raid. Exhibit 4.2 shows that,
most likely at the
request of Abrahams, Pienaar called Miller at 06h51 and the two spoke
for 82 seconds. About 20 minutes
later Miller called Chao (on
1789) and they spoke for more than two minutes. Why? Who
asked him to do so? Or
was it of his own initiative, and, if
so, why?
430.
Then, almost immediately thereafter, Abrahams called Miller and they
spoke for 97 seconds. Why would Abrahams be
seeking out
Miller? And, if not on his own initiative, who was it that
asked him to call Miller? Perhaps Africa?
And if it was
Africa, why would he have wanted a message to be conveyed to Miller?
431.
An hour later Miller called Chao again, at 08h16 and 08h32.
Why? Surely, they were not talking about electric
scooters when
all hell had broken loose at V&A? And why did Miller call
Abrahams later that morning at 10h13 and speak
for only 21 seconds?
432.
Miller claimed that he was asked by Pienaar, during the call at
06h51, to call Chao on behalf of Africa to inform him
of the fact
that abalone had been found amongst Africa’s products.
Miller said he obliged because he knew them both,
although Pienaar
denies that that was what he conveyed to Miller. Assuming
Miller’s version to be correct, why the
follow-up calls to Chao
and Abrahams?
433.
We believe that the answers to these questions are not hard to find.
Miller and Chao went back a long way.
Miller introduced Chao to
Africa in 2002 when Africa was down and out, and Chao needed someone,
not in the furniture business,
but to do the paperwork for his fish
exports, the so-called “Girl Friday”. Further, it
was Miller who knowingly
took Africa to Pitman to sign the documents
to set up the companies through which, at least from early 2003,
abalone was exported.
And, after the collapse of FTE, Miller
was financially embarrassed and did what he knew best: the
supply of pilchards –
this time with the assistance of Pesca.
And at that stage, on his own version, he knew that the pilchards
were being used
to mask the abalone.
434. In 2006 Miller continued to
provide the enterprise with, at the very least, advice, if not the
sourcing of pilchards
themselves. And when the edifice came crashing
down on 19 September 2006 he was around, speaking to the man behind
it all.
We are satisfied that accused 1 was an active and
knowing participant in a pattern of racketeering in an unlawful
enterprise over
a protracted period, and is therefore liable for
conviction under s2(1)(e) of POCA.
ACCUSED
2
435.
We have found that accused 2 was a co-perpetrator in the unlawful
enterprise in light of the fact that he made common
purpose with
accused 4 in relation to the control of abalone when it was delivered
to V&A, and there is the important aspect
of Botha’s
evidence regarding where the money came from.
436.
Further, if regard be had to the cell phone records produced by MTN
(File 5) in relation to accused 4’s number
ending in 8645, and
in particular at pages 1 to 51 thereof (which relate to the period
September 2005 to January 2006), one finds
frequent communications
between Du Toit and Van Rensburg. Given that Du Toit admitted
that he frequently delivered abalone
to Sea Freeze during that
period, it is possible to infer that these communications might have
been in relation to Du Toit’s
abalone-processing- and delivery
operation.
437.
As we have said, this pattern of communication repeats itself
throughout 2006, and the evidence is not limited to the
extracts
which we have given in relation to Counts 41 and 42 above. For
the sake of convenience and to not necessarily overburden
an already
long judgment with further minutiae, we will not recite those
communications in detail. Suffice it to say that
the cell phone
records for 2006 sustain this pattern of communication.
However, the records for 2005 are more limited and
less reliable, and
we are therefore not prepared to find beyond reasonable doubt that
the common purpose between accused 2 and
4 which we find in 2006,
goes as far back as 2005.
438.
We mentioned earlier that Van Rensburg’s number ending in 5069
was regularly seen moving about in the vicinity
of cell phone towers
located along the Atlantic Seaboard, as also in the vicinity of
Hermanus and places en route thereto.
With effect from 28 July
2006 we note that 5069 seems to have been mostly in the vicinity of
the tower described as “Philippi
Station” on the Cape
Flats. That number occasionally moved into Clifton, Oudekraal
and the Cape Town City Centre, but
it was also seen in the Eastern
Cape around towers described as “Katberg” and “Fort
Beaufort”.
439.
We infer from this movement that accused 2 did not use 5069 in his
handset during that period. It is probable that
he gave the
5069 SIM to somebody else to use in another phone, since Exhibit
4.16A (the “User Profile” referred to
earlier) tells us
that 5069 was in a Nokia 3120 from 26 July to 19 September 2006, and
the IMEI number of that Nokia 3120 corresponds
with the IMEI number
of the phone in use in the vicinity of Philippi Station and the other
towers referred to.
440.
Nevertheless, there is a very interesting development on 19 September
2006, the day of the V&A raid. The last
call made on 5069
was an outgoing call at 11h48 on that day to a number reflected as
084 432 0761, a number not identified
to us.
Thereafter the phone appears to have been switched off, as the
records reflect that all calls were forwarded to voicemail.
This suggests that Van Rensburg must have been in touch with the user
of the phone and directed that it be deactivated so as to
preserve
anonymity.
441.
Also on 19 September 2006 Van Rensburg was in contact with Ku and
Chao. Exhibit 4.2 shows that at 07h37, not long
after he had
spoken to Miller and Abrahams, Chao (on 1789) called Van Rensburg (on
1734) and spoke for 87 seconds. This call
cannot be denied,
because Van Rensburg admits using 1734. Immediately thereafter
Van Rensburg called Chao back, both on the
same numbers, and they
spoke for 44 seconds. These calls, at a critical stage in the
history of this matter and on a number
which Van Rensburg admitted
was his, called for an explanation by accused 2. In the absence
of any such explanation the only
reasonable inference that we can
draw, is that Chao and Van Rensburg must have been communicating
about the raid at V&A.
This places accused 2 at the nerve
centre of the unlawful enterprise at a time when its affairs were
under attack and when contingency
plans needed to be made.
442. We can come to no other
reasonable inference, having regard to all the circumstances relevant
to Van Rensburg, that he
was intimately involved in the affairs of
the enterprise. After all, the unchallenged evidence of Botha
was that the money
for the Kendal Road FPE came from accused 2.
This was used, as Botha demonstrated, to pay the overheads of the
operation
there, including packaging and staff remuneration. We
are satisfied that accused 2’s overall pattern of behaviour
fits
neatly into the mosaic, and that he, too, is liable for
conviction under s2(1)(e) of POCA.
ACCUSED
3
443.
As we have said, Africa was introduced to Gavin Wildschutt by Ku.
There is sufficient evidence before us to demonstrate
that
Rapitrade’s supply line was the joint work of Van Rensburg and
Du Toit, together with their respective lackeys in the
form of Botha,
Clack, Beauchop
et al
.
The State has asked us to find that Syroun’s supply line was
the joint work of Ku, accused 3 and “Gavin’s
guys”.
444.
The absence of Ku from these proceedings has meant that there has not
been any particular focus on his activities.
That
notwithstanding, we are satisfied that the evidence places him firmly
in the enterprise, too. If regard be had to the
spider relating
to Ku’s number ending in 9019 (Exhibit 4.7) which covers the
period 1 April to 10 October 2006, we see that
he had in excess of
200 communications with Chao on 8839; at least 35
communications with Van Rensburg on his legitimate
phone, 1734;
at least 52 communications with Africa on 6520, and more than 160
communications with accused 3 on 4596.
The spider also reflects
in excess of 100 communications with a number ending 4429, which is
described on the spider as “Jerry
Driver”, and was said
to be accused 7, Stanley Dlamini.
445.
Exhibit 4.7 confirms Africa’s testimony that he was in regular
communication with Ku, and when an exercise is conducted
like that
which we performed in relation to Counts 41 and 42, a similar pattern
of communications between the major role players
around the time of
deliveries to V&A on behalf of Syroun emerges.
446.
When we look at the call data for 9019 we see, for example, that
accused 3 (on 4596) was often in touch with Ku, who
seems to have
been more in Gauteng than the Cape Peninsula if regard is had to the
cell phone towers through which his phone was
routed. That
having been said, Ku’s number was also in and around the towers
near Hermanus and Gansbaai in late July
and early August 2006, when
he can be seen in contact with both accused 2 (on 1734), number 3 (on
4596), Chao (on 8839) and Africa
(on 6520), and those calls coincide
with deliveries by Syroun to V&A around those times.
447.
We will not overburden an already longer judgment with further detail
in this regard. Suffice it to say that we
have satisfied
ourselves that the details in the Vodacom records sufficiently
corroborate Africa’s evidence regarding Ku’s
involvement
in the business of Syroun and Ku’s links to accused 3 and Chao.
448.
As said earlier, we note that Ku’s communications with Van
Rensburg were on 1734 – the number which he admits
was his.
Those communications are therefore not in issue. What was Ku
talking to number 2 about, and once again, we
ask, why did Van
Rensburg not take the Court into his confidence in that regard?
Importantly, in the absence of Ku’s
further involvement in this
trial (and the fact that he skipped bail creates negative inferences
of its own), Van Rensburg’s
innocent explanation of such
contact with Ku would have most likely gone unchallenged.
449.
Finally, Exhibit 4.2 contains critical information suggesting Ku’s
links with the hierarchy of the enterprise.
Firstly, we note
that Ku communicates with Chao on his 8839 number, while all the
other role players, including number 2 (on his
admitted number,
1734), call Chao on 1789. Was 8839 then possibly Chao’s
skelm
phone,
we ask?
450.
In any event, the first call from Chao to Ku is at 07h13, just three
minutes after Miller had called Chao (on 1789) and
spoken for a
little over two minutes. Thereafter, Chao and Van Rensburg
speak twice, at 07h37 and 07h44, before Chao calls
Ku again at 08h23,
when they speak for nearly four minutes. At 13h20 Van Rensburg
calls Ku and they speak for almost five
minutes. In the 25-hour
period that follows, from 15h05 on 19 September, Chao and Ku speak no
less than 15 times, with the
call durations ranging from two seconds
to three minutes. And from 11h24 on 19 September 2006 to 14h28
on the 20
th
,
Ku speaks to Wynand du Plessis, the enterprise’s attorney, on
five occasions. One can clearly see that, as the fortress
is
under siege, central command springs into action, and Ku is very much
part of the action.
451.
We believe that the State has more than adequately demonstrated Ku’s
involvement in the enterprise, and that his
supply line was through
Syroun, ably assisted by the production and logistical services of
accused 3. We consider that it
is reasonable to infer that the
abalone emanating from Foxhole, Volmoed, Hercules and Faraday Street
found its way to Syroun, and
no other enterprise.
452. In the circumstances we are
satisfied beyond reasonable doubt that Gavin Wildschutt, too, was
directly involved in the
affairs of the enterprise from at least
February to September 2006 through a pattern of racketeering
activity, and that he is liable
for conviction under s2(1)(e) of
POCA.
ACCUSED
4
453.
The involvement of accused 4 in the affairs of the enterprise
presents little difficulty once the defences of lawfulness
and the
absence of
mens rea
have been disposed of. Du Toit testified that his supply of
abalone emanated from Chao and was delivered to Sea Freeze and
later
V&A on the instruction of Chao. While he said that Chao
paid him a rate per kilo for the processing work, we know,
too, from
the unchallenged evidence of Botha that Van Rensburg provided
financial support to Du Toit as well.
454. We are therefore satisfied
beyond reasonable doubt that accused 4 participated directly in the
affairs of the enterprise
from early 2005 through to September 2006
through a pattern of racketeering activity, and is therefore liable
for conviction under
s2(1)(e) of POCA.
ACCUSED
5
455. We have found that the
State only proved a single predicate offence against accused 5
viz
the possession of 1 969 units of frozen abalone at Brackenfell.
Although the barometer of suspicion in relation to Liebenberg’s
involvement in number 4’s criminal conduct through common
purpose runs high, we have been unable to find this beyond reasonable
doubt. In the circumstances, accused 5 is not liable for
conviction under s2(1)(e) of POCA.
ACCUSED
6, 8 AND 9
456. In light of our finding
that the State has failed to establish the commission of any
predicate offences on the part of
these accused, they are not liable
for conviction under s2(1)(e) of POCA.
THE VERDICT
We have reached our verdict, and that
verdict is a unanimous one. It is the following:
1.
ALL
OF THE ACCUSED ARE ACQUITTED ON ALL THE
FRAUD
CHARGES THAT THEY FACE
.
2.
ACCUSED
1: PHILLIP JAMES MILLER
COUNT 2
(Contravening
section 2(1)(e)
of the
Prevention of Organised Crime Act 121 of 1998
, POCA)
GUILTY AS CHARGED
COUNTS 15, 16, 17, 19, 21, 22,
23, 25, 26, 27, 28, 29, 30, 31 and 32
(Contravening Regulation 39(1)(a) of
the regulations as promulgated under Government Gazette Notice R1111
and published in Government
Gazette 19205 of 2 September 1998 –
the MLRA Regs)
GUILTY AS CHARGED
On all the
remaining charges which accused 1 still faces
.
NOT GUILTY AND DISCHARGED
3.
ACCUSED
2: WILLEM JACOBUS VAN RENSBURG
COUNT 2
(Contravening section 2(1)(e) of POCA)
GUILTY AS CHARGED
Counts 34, 35, 38, 39, 41, 42,
43, 48, 105, 107 and 115
(Contravening Regulation 39(1)(a) of
the MLRA Regs)
GUILTY AS CHARGED
COUNT 114
(Contravening
section 18(1)
of the
Marine Living Resources Act 18 of 1998
, the MLRA)
GUILTY AS CHARGED
On all the remaining charges
which accused 2 still faces
NOT GUILTY AND DISCHARGED
4.
ACCUSED
3: ADRIAAN GAVIN WILDSCHUT
COUNT 2
(Contravening
section 2(1)(e)
of POCA)
GUILTY AS CHARGED
COUNTS 3 AND 4
We take note of the fact that these
counts have already been established in terms of accused 3’s
guilty plea in terms of
section 105A
of the
Criminal Procedure Act in
April 2006, and that they are before us only as acts of racketeering.
COUNTS 46, 47, 50, 51, 100, 102,
104, 106, 108 and 109
(Contravening Regulation 39(1)(a) of
the MLRA Regs)
GUILTY AS CHARGED
COUNTS 99, 101 and 103
(Contravening section 18(1) of the
MLRA)
GUILTY AS CHARGED
On all the remaining charges
which accused 3 still faces
NOT GUILTY AND DISCHARGED
5.
ACCUSED
4: TONY PETER DU TOIT
COUNT 2
(Contravening section 2(1)(e) of POCA)
GUILTY AS CHARGED
COUNTS 14, 15, 16, 17, 19, 21,
22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 38, 39, 41, 42, 43,
48, 105, 107, 115 and 116
(Contravening Regulation 39(1)(a) of
the MLRA Regs)
GUILTY AS CHARGED
COUNT 114
(Contravening section 18(1) of the
MLRA)
GUILTY AS CHARGED
On all the remaining charges
which accused 4 still faces
NOT GUILTY
AND DISCHARGED
6.
ACCUSED
5: JOHANNES EMIL LIEBENBERG
COUNT 116
(Contravening Regulation 39(1)(a) of
the MLRA Regs)
GUILTY AS CHARGED
On all the other counts which
accused 5 still faces
NOT GUILTY
AND DISCHARGED
7.
ACCUSED
6: RODNEY ONKRUID
NOT GUILTY
AND DISCHARGED ON ALL COUNTS
8.
ACCUSED
8: DESMOND PIENAAR
NOT GUILTY
AND DISCHARGED ON ALL COUNTS
9.
ACCUSED
9: GREGORY ABRAHAMS
NOT GUILTY AND DISCHARGED ON ALL
COUNTS
____________________
GAMBLE,
J