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[2015] ZASCA 33
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Jwara and Others v S (916/2013) [2015] ZASCA 33; 2015 (2) SACR 525 (SCA) (25 March 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case
no: 916/2013
In
the matter between:
PETROS
DUMISANE
JWARA
...........................................................................
FIRST
APPELLANT
VICTOR
MPHO
JWILI
..................................................................................
SECOND
APPELLANT
RATSHEKI
LAMPROS
MOKGOSANI
...........................................................
THIRD
APPELLANT
and
THE
STATE
.....................................................................................
RESPONDENT
Neutral
citation:
Jwara v S
(916/13)
[2015] ZASCA 33
(25 March 2015)
Coram:
Brand, Ponnan and Willis JJA and
Dambuza and Gorven AJJA
Heard:
12 March 2015
Delivered:
25 March 2015
Summary:
Criminal Law ─ various offences
under
Prevention of Organised Crime Act 121 of 1998
and other common
law crimes ─ admissibility of evidence obtained pursuant to a
direction made under Interception and Monitoring
Prohibition Act 127
of 1992 ─ exercise of discretion to admit a proper one ─
evidence of crimes sufficient ─
convictions good ─ no
basis to interfere with sentences.
ORDER
On
appeal from:
South Gauteng High Court,
Johannesburg (Coetzee J)
The
appeals against the convictions and sentences of all three appellants
are dismissed.
JUDGMENT
Gorven
AJA (Brand, Ponnan and Willis JJA and Dambuza AJA concurring):
[1]
Quis
custodiet ipsos custodes?
[1]
Thus
enquired the satirist Juvenal in his poem on his attempts to enforce
moral behaviour.
Since
Plato, this phrase has been used to lament the corrosive effect of
corrupt police and judicial officials. When Captain Sizane,
the
investigating officer in this matter, stumbled on a reference to the
first appellant being involved with a suspected manufacturer
of
substances proscribed under the Drugs and Drug Trafficking Act
[2]
(the Drugs Act), he was confronted with what appeared to be just such
corrupt behaviour. This came about after he had obtained
an order
under the Interception and Monitoring Prohibition Act
[3]
(the Interception Act) to monitor calls made to and from the
cellphone of that suspected drugs manufacturer. The conversation said
that the first appellant had undertaken to store the seized drug
manufacturing machinery and return it to the suspect after the
matter
had been resolved. The first appellant was also said to have told the
arrested wife of the suspect what to mention in her
warning statement
to the police. The first appellant was, at the time, a Superintendent
in the South African Police Service (SAPS)
and the head of the West
Rand Organised Crime Unit.
[2]
This discovery led Captain Sizane to set
about applying for a direction under the Interception Act from the
designated judge, Seriti
J, to monitor the cellphone calls made to
and from the first appellant’s cellphone. This direction was
granted. An extension
of that direction was afterwards obtained from
the same judge relating to the cellphones of the second and third
appellants and
one Captain Shange (Shange). The three appellants and
Shange were all members of the West Rand Organised Crime Unit at the
time.
[3]
In due course, the three appellants were
arraigned, along with Shange, in the South Gauteng High Court,
sitting at Johannesburg
before Coetzee J. They confronted 13 charges;
not all of which applied to all of the accused. Before the trial
commenced, Shange
died. This left the three appellants as the only
accused persons in the trial. They were all acquitted on counts 2, 4,
5 and 8.
The remaining charges confronting them, and on which they
were convicted as charged, were as follows:
Contravention
of s 2(1)(
d
)
of the Prevention of Organised Crime Act 121 of 1998 (the POCA),
during the period 2005 to 2007 by acquiring or maintaining
an
interest in an enterprise – second and third appellants (Count
1);
Contravention
of s 2(1)(
f
)
of the POCA, during the same period by managing the operation of an
enterprise – first appellant (Count 3);
Dealing
in drugs by supplying cocaine, ecstacy and crystal methaqualone to
Norman Kokoeng on 8 February 2007 – first and
second
appellants (Count 6);
Defeating
or obstructing the course of justice by releasing a suspect, Kenneth
Bogopane and/or causing a false entry to be made
in the SAPS
occurrence book, resulting in his release on 10 February 2007 –
first and second appellants (Count 7);
Theft
of 800kg of ephedrine, a scheduled substance, at OR Tambo airport on
3 October 2007 – all three appellants (Count
9);
Supply
of ephedrine, a scheduled substance, by selling it for R1 425 000
– all three appellants (Count 10);
Fraud
by giving out to MJ Pretorius on 3 October 2007 at OR Tambo airport
that they were authorised to seize a consignment of
ephedrine for
the purposes of investigation – all three appellants (Count
11);
Attempted
theft of 5.7 kilograms of cocaine on 9 October 2007 at OR Tambo
airport – all three appellants (Count 12);
Fraud
by giving out to JD Scott that they were authorised to apply for a
certificate in terms of
s 252A
of the
Criminal Procedure Act 51
of 1977
in respect of the ephedrine at OR Tambo airport on 3 October
2007 – all three appellants (Count 13).
[4]
The first appellant was sentenced to an
effective 25 years’ imprisonment, the second appellant to an
effective 22 years’
imprisonment and the third appellant to an
effective 20 years’ imprisonment. The appellants were all
denied leave to appeal
by the court below but granted bail pending
the outcome of a petition to this court. This court granted leave to
appeal against
the convictions and sentences on 28 February 2012.
[5]
The appeal lapsed for failure to file the
record timeously. Some six months thereafter the state applied to
have the bail of the
appellants revoked. Despite opposition, an order
to that effect was granted by Satchwell J. This elicited an
application for leave
to appeal that order by the appellants, which
was granted by Satchwell J. Although that appeal was before us, all
concerned agreed
that events had overtaken it. Nothing more need be
said on the matter.
[6]
An application for reinstatement of the
appeal was brought and must be decided. The explanations given for
allowing the appeal to
lapse were, to put it mildly, somewhat
unconvincing. However, consideration of such an application also
involves weighing the prospects
of success on appeal. Since it was
necessary to fully consider the very substantial record for that
purpose, it seemed appropriate
to deal with the merits of the appeal.
The appeal was therefore reinstated at the hearing without objection.
[7]
I turn to summarise the offences. Count 1,
relating to the second and third appellants, concerned acquiring an
interest in an enterprise
through a pattern of racketeering activity
in contravention of
s 2(1)(
d
)
of the POCA. The word ‘enterprise’ is defined in the POCA
as follows:
‘“
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.’
As
was pointed out by this court in
S
v Eyssen
:
[4]
‘
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 fact; those which the
legislature has not included specifically would 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 the
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 discrete.
Proof of the pattern may establish proof of the enterprise, but this
will not inevitably be the case.’
[8]
Pattern of racketeering activity is, in
turn, defined as meaning:
‘
.
. .
the planned, ongoing, continuous or
repeated participation or involvement in any offence referred to in
Schedule 1 and 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 commission of such prior offence
referred
to in Schedule 1’.
Schedule
1 includes contraventions of s 3, 4 and 5 of the Drugs Act which
deal with the manufacture and supply of scheduled
substances, the use
and possession of proscribed dependence producing substances and
dealing in such dependence producing substances.
I shall refer to all
of these by way of the general term ‘drugs’. Schedule 1
also includes the common law crimes of
theft and fraud. This, in
effect, means that a group of people, associated in fact, which
commits two offences under schedule 1
within a ten year period,
maintains an interest in an enterprise through a pattern of
racketeering activity.
[9]
Count 3, relating to the first appellant,
was that he contravened s 2(1)(f) of the POCA by managing an
enterprise through a pattern
of racketeering activity. Apart from the
management aspect, the same criteria apply. All of the other counts
fall under Schedule
1.
[10]
It was correctly accepted by the appellants
that, apart from counts 6 and 7, the outcome of the appeal hinged
largely on the question
whether the acceptance into evidence of the
intercepted phone conversations obtained under the Interception Act
should be set aside
on appeal.
[11]
The
court below recognised that the provisions of the Interception Act
limit the right to privacy accorded in the Constitution.
[5]
There was no attack on the constitutionality of the Interception Act.
Therefore, evidence obtained in accordance with it would
thus have
been obtained without violating this, or any other, right. Where a
right under the Constitution is impinged on by legislation,
the
prescripts of that legislation must be strictly adhered to. The
appellants correctly submitted that the principles governing
the
obtaining and carrying out of search and seizure warrants apply
equally to a direction under the Interception Act. The position
on
search and seizure was explained by Langa DP in
Investigating
Directorate: Serious Economic Offences & others v Hyundai Motor
Distributors (Pty) Ltd & others; In re Hyndai
Motor Distributors
(Pty) Ltd & others v Smit NO & others
,
[6]
when he said:
‘
On
the proper interpretation of the sections concerned, the
Investigating Directorate is required to place before a judicial
officer
an adequate and objective basis to justify the infringement
of the important right to privacy. The legislation sets up an
objective
standard that must be met prior to the violation of the
right, thus ensuring that search and seizure powers will only be
exercised
where there are sufficient reasons for doing so. These
provisions thus strike a balance between the need for search and
seizure
powers and the right to privacy of individuals.’
[7]
[12]
The relevant parts of s
2(2)
of the Interception Act read as follows:
‘
Notwithstanding
the provisions of subsection (1) or anything to the contrary in any
other law contained, a judge may direct that-
(a)
. . .
(b)
. . . all communications which have
been or are being or are intended to be transmitted by telephone or
in any other manner over
a telecommunications line, to or from a
person, body or organization be intercepted; or
(c)
conversations by or with, or
communications to or from, a person, body or organization, whether a
telecommunications line is being
used in conducting those
conversations or transmitting those communications or not, be
monitored in any manner by means of a monitoring
device.’
Some
relevant definitions are:
‘“
monitor”
includes the recording of conversations or communications by means of
a monitoring device’.
‘“
monitoring
device”
means any instrument,
device or equipment which is used or can be used, whether by itself
or in combination with any other instrument,
device or equipment, to
listen to or record any conversation or communication’.
‘“
telecommunications
line”
includes any apparatus,
instrument, pole, mast, wire, pipe, pneumatic or other tube, thing or
means which is or may be used for
or in connection with the sending,
conveying, transmitting or receiving of signs, signals, sounds,
communications or other information’.
[13]
In
their heads of argument, the appellants attacked the admissibility of
the evidence obtained under the Interception Act on three
fronts. The
first was the grant of the initial direction by Seriti J in respect
of the first appellant. The gravamen of this was
that the application
did not comply in all respects with the elaborate procedure set out
in the Act. In argument, they conceded
that this matter was
distinguishable from that of
S
v Pillay & others
[8]
where the direction was obtained on false information contained in
the affidavit supporting the application. In the present matter,
it
was correctly conceded that, whilst there may have been minor
shortcomings in the application, they were at most technical in
nature and did not go to the foundation of the application.
[14]
The
second point of attack was that the Interception Act did not provide
for the interception of cellphone communications. This
was not
addressed in argument but was also not expressly abandoned. The
reasoning was that, because cellphones were not operative
in South
Africa when the Act was promulgated and because there has been a
subsequent amendment to the Act which makes explicit
mention of this
form of communication, the Act did not provide for interception of
that form of communication. As has been seen
in the section and the
relevant definitions, however, this submission does not bear
scrutiny. It was dealt with in
S
v Cwele & another
,
[9]
where Koen J rejected a similar submission. In the light of the
diffidence in advancing this argument before us, I need only say
that
I do not disagree with the finding in
Cwele
that this form of communication is included in the Act.
[15]
The third point of attack was directed at
the finding of the court below that, even if the application did not
strictly comply with
the Act, the evidence obtained as a result of
the direction was nevertheless admissible. A failure to obtain
evidence within the
strict confines of the Act means that it falls
outside the protective umbrella provided by the Act and results in a
violation of
the right to privacy. Such evidence may be rendered
inadmissible under s 35(5) of the Constitution which provides:
‘
Evidence
obtained in a manner that violates any right in the Bill of Rights
must be excluded if the admission of that evidence would
render the
trial unfair or otherwise be detrimental to the administration of
justice.’
A
number of factors meriting consideration in this enquiry were
mentioned in
Pillay
, without these being regarded as
exhaustive. These were:
‘
.
. . the kind of evidence that was obtained, what constitutional right
was infringed, was such infringement serious or merely of
a technical
nature and would the evidence have been obtained in any event.’
[10]
[16]
On the facts of that matter, there were
three primary considerations. The direction had been obtained by way
of false information
in the affidavit supporting the application, the
evidence obtained under the Interception Act was supplemented by
additionally
tainted evidence by way of a statement obtained by undue
influence and there were other means of investigation available. The
concern
was therefore expressed that:
‘
In
our view, to allow the impugned evidence derived as a result of a
serious breach of accused 10's constitutional right to privacy
might
create an incentive for law enforcement agents to disregard accused
persons' constitutional rights since, even in the case
of an
infringement of constitutional rights, the end result might be the
admission of evidence that, ordinarily, the State would
not have been
able to locate.’
[11]
[17]
The court below was alive to the relevant
principles and set out clearly several features which weighed in the
scale in favour of
the admissibility of that evidence. When the
appellants were asked whether they could make any submissions to the
effect that the
discretion was wrongly exercised, they candidly
conceded that they could not do so. The deficiencies were of a purely
technical
nature. There was nothing misleading said in the
application. The procedure in the Interception Act was followed as
closely as
possible. The monitoring of the conversations was the only
means to investigate. In this regard, Captain Sizane testified that,
since the suspects were all members of the SAPS and because of the
endemic corruption therein, he could not use any other investigative
tools without jeopardising the investigation. Not only was the
exercise of the discretion a proper one but, in my view, it was
correct and, in the circumstances of the matter, to have excluded
that evidence would have led to a failure of justice. The provisions
of s 35(5) therefore did not serve as a basis to exclude the
evidence obtained pursuant to the directions and the admission
of the
evidence by the court below cannot be impugned.
[18]
The court below dealt in extensive detail
with the evidence on each count. This included setting out the
intercepted communications
which specifically bore on the counts in
question. The picture that emerged was a clear one. The first
appellant was managing the
operations of the other two appellants,
informers, drug dealers and Shange in seizing and onselling drugs.
[19]
In brief, the evidence on counts 6 and 7
was as follows. One Kokoeng had been an informer for the first
appellant when he was stationed
at Vereeniging. When the first
appellant was transferred to become the head of the West Rand
Organised Crime Unit, he arranged
for Kokoeng to be transferred
there. He introduced Kokoeng to the second appellant and Shange as
being the two loyal juniors who
would be running around with him.
After a successful raid for drugs, the second appellant misled
Kokoeng, saying that it had been
unsuccessful. When Kokoeng
discovered this, he phoned the second appellant who undertook to
straighten it out. The second appellant
arranged to meet him in
Randfontein with his friend Bogopane. They met the second appellant
at a church there and he handed to
them some cash and a stash of
drugs for which they were to find a buyer. When Bogopane went to meet
a prospective buyer, he was
arrested. As a result he phoned the first
appellant who promised to solve the problem. Whilst he was in the
holding cells at Randburg,
the second appellant visited him and told
him that Shange had told him the arrest was unlawful. The arrest of
Bogopane in possession
of drugs was confirmed by a reserve police
officer who was mystified as to why he was never called to testify in
the case against
Bogopane. The substances found in his possession
were sent for analysis and found to be cocaine, ecstacy and crystal
methaqualone,
all prohibited substances under the Drugs Act. Despite
this, the charges against Bogopane were withdrawn. The police
occurrence
book recorded that Bogopane was released by the second
appellant and Shange on the basis that there was no evidence which
connected
him to the offence. The second appellant was the
investigating officer and the docket subsequently went missing. The
court below
correctly convicted the first and second appellants on
these counts.
[20]
I turn to consider counts 9, 10, 11 and 13.
The evidence of Mr Pretorius, an employee of Swissport Cargo, was
that on 3 October
2007 he was approached by three police officials.
They introduced themselves as Mokgosane, Shange and Jwili – the
first and
last also being the names of the third and second
appellants respectively - from the West Rand Organised Crime Unit and
told him
that they were looking for a parcel. They showed him an
airways waybill which corresponded with the parcel they were looking
for
and told him the parcel contained cocaine. He was requested to
contact them when the person came to fetch the parcel. They took
the
parcel with them for safekeeping. The parcel weighed 189 kilograms
and they loaded it onto a pickup truck with a forklift.
He contacted
them when the person came to collect the parcel and all three
returned and took the person with them.
[21]
Captain Scott was approached telephonically
on 2 October by Shange to obtain authorisation to do a controlled
delivery of the consignment.
He received a written request the
following morning but heard nothing more. The substance taken was
tested and found to be ephedrine,
a scheduled substance under s 3
of the Drugs Act. Only 30 000 grams of this was submitted for
analysis and subsequent
destruction. According to the transcripts of
the intercepted communications, the controlled delivery was arranged
by the appellants.
On 3 October, the third appellant told the
first appellant during a conversation which was intercepted that he
had taken possession
of the ephedrine and that a buyer had already
taken two bags and that more would be supplied the following day. The
third appellant
told the first appellant that he would let him have
R1 million that evening. This arrangement was confirmed by Shange in
a conversation
with the first appellant where they congratulated each
other on a successful job. There were further communications
concerning
payment where it was indicated that R425 000 had been
received and that another R1 million was expected.
[22]
Count 12 related to an incident where an
employee of the South African Revenue Service, stationed at OR Tambo
airport discovered
5.7 kilograms of cocaine in a container with the
assistance of a dog. The second and third appellants and Shange
arrived in the
search area and informed her that they were waiting
for that shipment and were to take it by way of a controlled
delivery. They
were not authorised to be in the search area and were
also not accompanied by an authorised person as was required. They
were also
unable to produce documents to show that they were entitled
to do a controlled delivery with the shipment. After they had been
asked for those documents, they disappeared. This attempt at theft of
the consignment was also referred to in the transcripts of
the phone
calls intercepted under the Interception Act.
[23]
In addition, it was clearly shown by a
forensic audit of the financial affairs of the appellants that, in
2007, all three appellants
received moneys in excess of their
salaries and for which they could not account. The first appellant
received R1 044 169.61,
the second appellant R69 679.61
and the third appellant R56 430.56. Many of the intercepted
communications revolved around
the amounts which had been negotiated
with purchasers and how payments were being made to the appellants.
No point would be served
in repeating the analysis of the court
below. In argument before us the findings and reasoning of the court
below were not seriously
challenged.
[24]
Counts 1 and 2 related to the first
appellant managing an enterprise as defined in the POCA and the other
two participating in it.
Taking into account the other offences, all
of which took place during 2007, it is clear that the state proved
that the appellants
were associated with each other in fact in a
pattern of racketeering activity managed by the first appellant and
participated in
by the second and third appellants.
[25]
All
of this compelling evidence required an explanation. The failure of
any of the appellants to call countervailing evidence placed
them at
risk.
[12]
This, too, was
conceded in argument. In my view, considering the evidence in its
totality, the court below correctly found that
the state had proved
its case beyond reasonable doubt. There is therefore no basis on
which to set aside the convictions.
[26]
As regards the sentences, despite an
invitation to do so, none of the appellants was able to point to any
misdirection by the court
below. Neither were they able to submit
that the sentences were so startlingly inappropriate as to induce a
sense of shock. As
a result, this court is not entitled to interfere.
[27]
In the result, the appeals against the
convictions and sentences of all three appellants are dismissed.
___________________
T
R Gorven
Acting
Judge of Appeal
Appearances
For First Appellant:
C Meiring
Instructed
by:
Dolf
Jonker Attorneys, Bryanston
Symington
& De Kock, Bloemfontein
For
Second & Third
Appellants:
WB Ndlovu
For
Respondent: I Bayat
Instructed
by Director of Public Prosecutions
[1]
Juvenal
Satire
6
.346–348.
The translation has been rendered as: ‘Who will guard the
guards themselves?’
‘…
I
know the plan that my friends always advise me to adopt:
"Bolt
her in, constrain her!"
But
who can watch the watchmen?
They
keep quiet about the girl's secrets and get her as their payment;
everyone
hushes it up.’
[2]
The
Drugs and Drug Trafficking
Act
140 of 1992
.
[3]
The
Interception
and Monitoring Prohibition Act 127 of 1992.
[4]
S
v Eyssen
2009
(1) SACR 406
(SCA) para 6.
[5]
Section
14(
d
)
of the
Constitution
of the Republic of South Africa, 1996.
[6]
Investigating
Directorate: Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd
[2000] ZACC 12
;
2000 (2) SACR 349
(CC) para 55.
[7]
References
omitted.
[8]
S
v Pillay & others
2004
(2) SACR 410 (SCA).
[9]
S
v Cwele & another
2011
(1) SACR 409 (KZP).
[10]
Paragraph
93.
[11]
Paragraph
94.
[12]
Osman
& another v Attorney-General, Transvaal
[1998] ZACC 14
;
1998 (2) SACR 493
(CC) para 22;
S
v Boesak
[2000] ZACC 25
;
2001
(1) SACR 1
(CC) para 24.