S v Roberts and Others (CC 20/2011) [2012] ZAECPEHC 72; 2013 (1) SACR 369 (ECP) (27 September 2012)

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[2012] ZAECPEHC 72
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S v Roberts and Others (CC 20/2011) [2012] ZAECPEHC 72; 2013 (1) SACR 369 (ECP) (27 September 2012)

REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
Case No: CC 20/2011
In the matter between:
THE STATE
And
PETER MICHAEL ROBERTS
..................................................................
Accused
No 1
CAROLINA ROBERTS
.............................................................................
Accused
No 2
JONATHAN DANIEL NEL
.......................................................................
Accused
No 3
BRUCE ROBERT BURNSTEIN
..............................................................
Accused
No 4
JOHN NELL
..............................................................................................
Accused
No 5
Coram:
Chetty, J
Date Heard:
14/11/2011 –
18/11/2011; 21/112011 – 25/11/2011;
17/01/2012; 27/08/2012 –
30/08/2012; 18/09/2012
Date Delivered:
27/09/2012
Summary:
Criminal
Law
–
Prevention of
Organised Crime Act 121 of 1998
–
Racketeering
Activities – Illegal trading in abalone over period of time –
Two or more offences – enterprise found
proved –
Interception of telephone communications – Judge’s
directive in terms of
Regulations Of
Interception Of Communications And Provision of Communication-Related
Information Act 70 of 2002
–
Validity
of directive – Accomplice evidence – Cautionary rules -
Search of premises validity thereof – Accused
guilty as charged
________________________________________________________________
JUDGMENT
________________________________________________________________
Chetty, J
Introduction
[1] During the early afternoon of 8
January 2009, a truck bearing the registration letters and number BZH
945 EC pulled off the
N4 about five (5) km from the Lebombo border
post between the Republic of South Africa and Mozambique and was
immediately swooped
on by members of the then Directorate of Special
Operations (the Scorpions). The two (2) occupants of the truck,
Marthinus Janse van Rensburg
senior (
Marthinus
)
and his son,
Marthinus Janse
van Rensburg
junior
(
Boetman
)
were ordered to alight and shortly thereafter Boetman voluntarily
admitted that the truck was carrying a load of abalone hidden
in a
false compartment in the rear roof of the truck. In due course the
roof was drilled open and found to contain six hundred
and fifty
eight (658) kilograms of abalone loosely packed in the concealed
compartment.
Marthinus
and
Boetman
were duly arrested and detained in a
nearby police station.
[2] Shortly after their apprehension,
accused no.’s 3 and 4 were stopped at a roadblock on the N4
about twenty (20) kilometres
from where the truck had veered off the
N4 but in the opposite direction. Shortly thereafter they too were
arrested by the Scorpions
and in due course came to share a cell with
Marthinus
and
Boetman
.
The next day accused no. 1 was arrested at the Natures Gate Resort on
the outskirts of Nelspruit in close proximity to the N4
leading to
Mozambique and incarcerated with accused no.’s 3, 4,
Marthinus
and
Boetman
at the Matsulu Police station. On 12
January 2009 all five (5) of them appeared in the Barberton
Magistrates Court.
[3] The arrest of the aforementioned
quintet
1
was the culmination of a special
project, codenamed, Operation May, initiated by the Scorpions, into a
criminal syndicate suspected
of involvement in abalone poaching.
Accused no. 1 was one of the persons suspected of being a kingpin in
the syndicate. During
September 2008 the Scorpions, in an attempt to
gain evidence of the syndicate’s nefarious activities, sought a
directive
from a Judge pursuant to the provisions of section 18
(3)(a) read with sections 18(1), 16(1) and/or 17(1) and/or 19(1) of
the
Regulations of
Interception of Communications
And
Provision Of
Communication-Related
Information Act
2
.
[4] In his affidavit in support of the
directive sought, Senior Special Investigator
Johan Jooste
(
Jooste
), employed by the National Prosecuting Authority but
assigned to the Scorpions, outlined the historical background to the
project
as follows –
“
A.
HISTORICAL
BACKGROUND
14.
As background,
investigation have proved that Chinese cartels operated under a
blanket of quasi-legitimate businesses in which non-existent

addresses, false identification documents, non-traceable partners
etcetera, play a major role. Accommodation is always in areas
where
security is above average to exceptional and/or surveillance is
almost impossible. During surveillance operations on Chinese

individuals it was evident that the drivers of the abalone vehicles
were well trained in counter-surveillance actions, eliminating

surveillance teams vehicles within 10 minutes. The evasion tactics
used were extremely efficient. Numerous disruptive actions were

conducted against the identified suspects. The suspect’s
houses, storage facilities and businesses were searched to obtain

evidence, but to no avail. Because of their close knit operations,
informers are being recruited within the structures of the syndicates

in order to assist with the investigation. Efforts are being made to
introduce agents into the syndicates to build trust relationships
for
infiltration and penetration. It is however very difficult, because
of time constraints and the Chinese close knit operations
and
culture.
15.
This is but a few
examples of what law enforcement officers have to bear in mind when
investigating and encountering Chinese Organised
Crime. It is true
that other syndicates make use of similar traditional methods, but
with the sudden increase of Chinese controlled
activities, the
trans-national networks across the international arena, the need to
address these criminal activities is very high.
16.
This affidavit relates
to information received by an informant identifying the methodology
to smuggle abalone from the coastal line
of South Africa to the nine
provinces of South Africa and across the borders to the Far East via
road, railway and airplanes.
17.
On the 28
th
of May 2008 the informer was debriefed. The informer divulged
information that has been followed up and corroborated by the
intelligence
report drawn up by SSI Heydenrych.
18.
The informer stated
that there are local syndicates closely linked with Chinese
syndicates that illegally dive for and collect abalone
in the coastal
areas. These Chinese syndicates dominate and control the illegal
industry in South Africa. The informer identified
several individuals
that supply directly and indirectly to these Chinese syndicates. The
informer also indentified several Chinese
individuals who control
these markets. The modus operandi of the syndicates is to buy poached
abalone from the coastal syndicates,
transport it by means of road,
rail or air transport to the storage facilities that are widely
spread in the different provinces,
process it and export it via the
national border to the Far East. Part of their modus operandi is to
make use of cell phone communication
during transactions. The cell
phone numbers are kept secret amongst the syndicate members as a
method of protecting their criminal
activities. This makes
conventional investigation methods extremely difficult as mentioned
above.
19.
The informer is
personally involved in the criminal activities of these syndicates
and has direct access to these cell phone numbers.
The informer’s
role in the syndicate is the link between the suppliers of the
abalone and the Chinese syndicate members.
The informer collects the
abalone which is illegally poached and supplies it to the Chinese
syndicate members on instruction via
cell phone communication. The
point of collections will differ on a daily basis as the Chinese
syndicates are well aware of the
law enforcement’s actions.
During these deliveries a close eye will be kept on the process for
any unnatural reaction by
the suppliers or anyone else in the area of
the deliveries. The syndicate members will alert one another by cell
phone. This makes
observation and investigation actions extremely
difficult.”
I have deliberately reproduced this
rather prolix historical exposition of the reasons which informed the
decision to obtain the
directive by virtue of the fact that it
emphasizes the cloak and dagger nature of the poaching syndicates.
The somewhat cryptic
nature of the intercepted and monitored
telephone conversations, which I will examine in detail hereinafter,
must accordingly be
evaluated against this background.
[5] Accused no.’s 2 and 5 were
subsequently arrested and appeared with the quintet in Barberton
until the matter was transferred
to Port Elizabeth. During the
various remands both in Barberton and thence Port Elizabeth, the
seven (7) accused were represented
by Mr
Griebenow
.
During their first appearance in this Court on 3 May 2011,
Marthinus
and
Boetman
dispensed with Mr
Griebenow’s
services and expressed a desire to
plead guilty to the charges preferred against them and requested that
they be afforded the services
of a legal practitioner. Mr
Cilliers
,
a member of the Port Elizabeth Justice Centre was duly appointed as
their legal representative and entered a plea bargain with
the state.
Both pleaded guilty to counts eight (8) and nine (9) and were duly
convicted and sentenced, but not incarcerated.
Marthinus
and
Boetman’s
decision to plead guilty elicited a
volley of derision from Mr
Price
.
During their cross-examination and in the written heads it was
suggested that they were threatened by the Scorpions not only to

enter a plea bargain with the state but moreover to
“
unceremoniously
and in very superstitious circumstances dump(ed)”
their attorney, Mr
Griebenow
.
The submission is based entirely on wild speculation and is directly
contradicted by both
Marthinus
and
Boetman
.
[6] The five (5) accused now stand
arraigned before me on multiple charges arising from contraventions
of regulation 36 (1) (b)
of the regulations promulgated under
Government Notice R. 1111 and published in Government Gazette 19205
dated 2 September 1998
as amended, read with regulation 1 and 96 of
the said regulations, as issued, in terms of section 77 of the
Marine
Living Resources Act
3
(the Act) and further read with
sections 1 and 58 (4) of the Act and section 250 of the
Criminal
Procedure Act
4
.
The offences relate to unlawful engagement in the fishing,
collecting, keeping, transportation, controlling of or being in
possession
of abalone
5
without a permit. For ease of
reference, I shall, at times, merely refer to the offences, simply,
as poaching. At the inception
of the trial, the spouses, accused
no.’s 1 and 2, were represented by Mr
Price
whilst accused no.’s 3, 4 and 5
were represented by Mr
Griebenow
.
At the commencement of the defence case however, Mr
Griebenow
sought and obtained my leave to
withdraw acting on behalf of accused no.’s 3, 4 and 5, their
defence being entrusted to Mr
Price
on his instructions.
The pleas and plea explanation
[7] In his written plea explanation
(exhibit “A”) accused no. 1 not only denied complicity in
the offences charged,
but proceeded to cast aspersions not only on
the integrity of the police investigation but on various witnesses
whom he anticipated
would be called on behalf of the state. The plea
explanation is moreover replete with gratuitous comment and
constitutes an aberration
of the statement envisaged by section 115
of the
Criminal Procedure
Act
. Accused no.’s 2,
3, 4 and 5 likewise denied all complicity in the offences charged.
The individual counts
[8] Counts one (1) and two (2) concern
a contravention of sections 2 (1) (e) and (f) respectively read with
sections 1
,
2
(2),
2
(3),
2
(4) and
3
of the
Prevention
of Organised Crime Act
6
(POCA
)
viz.
conducting or participating in the conduct of an enterprise through a
pattern of racketeering activities
(s 2(1)(e))
, and managing an
enterprise conducted through a pattern of racketeering activities
(s
2(1)(f)).
The racketeering activities attributed to the accused, ten
(10) in number, are reflected on Schedule A to the indictment and
appear
thus in chronological order commencing in 2005 and terminating
during January 2009. To aid the narrative of this judgment, it is

reproduced hereinafter in the same format. The contents are self
explanatory-
Date
Accused
persons involved
Place
Activity
1
On
or about 10 October 2005
1
and 2
Port
Elizabeth and or Graaf Reinet
Unlawfully
and wrongfully engaged in the fishing and or collecting, keeping,
controlling, transporting or possession of abalone,
to wit by
collecting, keeping, controlling, transporting possessing and
dealing in 3147 units of abalone, without a permit
as set out in
count 3
and or its alternative count.
2
On
or about 20 May 2006
1
and 2
Port
Elizabeth
Unlawfully
and wrongfully engaged in the fishing and or collecting, keeping,
controlling, transporting or possession of abalone,
to wit by
collecting, keeping, controlling, transporting, possessing and
dealing in 9947 units of abalone, without a permit.
3
On
or about 7 July 2006
1,
2 and 3
Port
Elizabeth
Unlawfully
and wrongfully engaged in the fishing and or collecting, keeping,
controlling, transporting or possession of abalone,
to wit by
collecting, keeping, controlling, transporting possessing and
dealing in 11144 units of abalone, without a permit.
4
On
or about 3 December 2006
1,
2 and 3
Port
Elizabeth
Unlawfully
and wrongfully possessed 1676 units of abalone without a permit
[Previous conviction, accused 1]
5
During
or about the month of May 2007
1,
2, 3 and 5
Port
Elizabeth
Unlawfully
and wrongfully engaged in the fishing or collecting, keeping,
controlling, transporting or possession of abalone,
to wit by
collecting, keeping, transporting, controlling, possessing and
dealing in approximately 220 kilograms abalone,
without a permit
as set out in
count 4
and or its alternative count.
6
During
or about the period of May to September 2007
1,
2, 3 and 5
Port
Elizabeth
Unlawfully
and wrongfully engaged in the fishing or collecting, keeping,
transporting controlling or possession of abalone,
to wit by
collecting, keeping, transporting, controlling, possessing and
dealing in approximately 5400 kilograms abalone,
without a permit
as set out in
count 5
and or its alternative count.
7
On
or about 22 to 24 September 2007
1,
2, 3 and 5
Port
Elizabeth and/or N1 Highway between Bloemfontein & Edenburg
Unlawfully
and wrongfully engaged in the fishing or collecting, transporting,
keeping, controlling or possession of abalone,
to wit, by
collecting, keeping, controlling, possessing and dealing in 7935
units abalone weighing 656.96 kilograms, without
a permit as set
out in
count 6
and or its alternative count. [accused 3 and
5: Previous conviction]
8
During
or about the period 16 to 19 December 2008
1,
2, 3 and 4
Port
Elizabeth and or Komatipoort
Unlawfully
and wrongfully engaged in the fishing or collecting, keeping,
transporting controlling or possession of abalone,
to wit, by
collecting, keeping, transporting, controlling, possessing and
dealing in approximately 603 kilograms abalone,
without a permit
as set out in
count 7
and or its alternative count.
9
During
or about the period 21 to 24 December 2008
1,
2 and 3
Port
Elizabeth and or Komatipoort
Unlawfully
and wrongfully engaged in the fishing and or collecting, keeping,
transporting, controlling or possession of abalone,
to wit by
collecting, keeping, transporting, controlling, possessing and
dealing in approximately 593 kilograms of abalone,
without a
permit as set out in
count 8
and or its alternative count.
10
During
or about the period 7 to 8 January 2009
1,
2, 3 and 4
Port
Elizabeth and or Komatipoort
Unlawfully
and wrongfully engaged in the fishing and or collecting,
transporting, keeping, controlling or possession of abalone,
to
wit by collecting, transporting, keeping, controlling, possessing
and dealing in approximately 658 kilograms abalone,
without a
permit as set out in
count 9
and or its alternative count.
[9] Before I proceed to an analysis
and appraisal of the evidence adduced, it is apposite, given the
aforegoing activities relied
upon by the state, to consider the
legislative framework governing counts one (1) and two (2). The
POCA
was promulgated to combat organised
crime, money laundering and criminal gang activities, to prohibit
racketeering and to provide
for a range of related matters. Chapter 2
of the
POCA
delineates the offences relating to
racketeering activities and prescribes the penalties for persons
convicted of such offences.
The essence of the offence postulated by
section 2
(1) (e) of the
POCA
was succinctly stated by Cloete J.A in
S v Eyssen
7
viz, –
“
.
. . 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) . . . ss (e) covers a person
who was managing, or employed by, or associated with the enterprise]

. . . “Manage” is not defined and therefore bears its
ordinary meaning which in this context is “(1) to be in
charge
of;
run,
(2) to supervise (staff), (3) be the manager of.”
Section 2
(1) (f) in turn provides as
follows –
“
(1)
Any person who-
. . .
. . .
. . .
. . .
. . .
manages the operation
or activities of an enterprise and any person who knows or ought
reasonably have known that any person,
whilst employed by or
associated with that enterprise, conducts or participates in the
conduct, directly or indirectly, of such
enterprise’s affairs
through a pattern of racketeering activity;”
[10] Since its enactment the
POCA
has been subjected to ongoing judicial
scrutiny and has invited learned discourse. Extrapolated from the
case law the following
principles emerge - in order to found a
conviction thereanent, the state is required to establish the
existence of an enterprise,
a pattern of racketeering activity and a
link between them and the accused. It must thereafter establish that
the accused participated
in the enterprise’s affairs and that
such participation was through a pattern of racketeering activity,
which
section 1
defines as –
“
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.
As
pointed out in
Eyssen
8
the participation or involvement must
be
ongoing, continuous, or
repeated
. As will appear
more fully hereinafter, the existence of the enterprise has, on the
totality of the evidence, been established
beyond any doubt. It is
however necessary, at this juncture, to immediately dispel any notion
that the reference to
“
two
offences”
in
the definition of
“
pattern
of racketeering activity”
means
two (2) separate and disparate offences specified in schedule 1 to
the Act. The submission made on behalf of the accused to
that effect
amounts to heresy. The definition of racketeering activities itself
proves the fallacy of the submission. The evidence
adduced
furthermore proves beyond any doubt that accused no.’s 1 and 2
managed the operation of the enterprise and were aware
of the fact
that the various persons employed by it directly participated in its
affairs through a pattern of racketeering activities.
[11] In order to acquit itself of the
overall onus resting upon it to establish the guilt of the accused
beyond a reasonable doubt
Mr
Le Roux
adopted a multifaceted
approach in the presentation of the state case. Firstly, he adduced
the evidence of a number of persons
who were directly involved in the
listed activities under the aegis of accused no.’s 1 and 2.
These witnesses, Mr
Russel Stevens
(
Stevens
), Mr
Marthinus Horn
(
Horn
),
Marthinus
,
Raymond
Janse van Rensburg
(
Raymond
) and
Boetman
, whose
evidence I shall consider in some detail hereinafter were all warned
pursuant to the provisions of section 204 of the
Criminal
Procedure Act
. Secondly, he adduced evidence of a plethora of
documents found in accused no. 1’s study at his residence
following a search
and seizure operation conducted by the Scorpions
on 12 January 2009 and thirdly, he adduced evidence of intercepted
telephonic
conversations.
[12] In argument before me the section
204 witnesses were vilified and denounced as untruthful, and it was
suggested that they had
been coerced by the Scorpions to falsely
implicate the accused in the commission of the offences charged. The
search of the house
and seizure of documents found was lambasted as
unlawful and an infringement of the accuseds’ constitutionally
entrenched
rights and hence inadmissible and, as regards the
intercepted telephone calls, accused no.’s 1, 2 and 3’s
common approach
was to say that the calls after 18 December 2008 were
inadmissible, that the transcripts were a morass of confusing
details, contained
no reference whatsoever to abalone and in general,
of such poor quality that it be disregarded in
toto
.
The evidence of the witnesses
directly involved in the poaching activities
Stevens
[13] It is convenient, given the
passage of time over which the listed activities and individual
offences were committed to commence
with the evidence of
Stevens
.
His evidence and that of the other section 204 witnesses must of
course be critically analysed and evaluated by reason of the
fact
that they are accomplices. However, in this exercise caution should
not be allowed to displace common sense
9
.
In the evaluation and appraisal of their evidence, their status as
accomplices must not be overlooked. Before I embark upon an
analysis
of his evidence, it is apposite to record the relationship between
the various accused. Accused no.’s 1 and 2 are,
as stated,
spouses. Accused no. 5 is accused no. 1’s brother-in-law whilst
accused no. 3 is a long standing family friend
of accused no.’s
1, 2 and 5. Accused no. 4’s involvement is this matter arose
out of his friendship with accused no.
3. It is not in dispute that
prior to their arrest during 2009 accused no.’s 1, 3 and 5 had
each been arrested and convicted
10
for the illegal poaching of abalone,
the circumstances under which, I shall in due course advert to. The
previous conviction of
accused no. 1 constitutes the fourth (4
th
)
activity and that of accused no. 3 and accused no. 5 the seventh
(7
th
)
activity listed on schedule A respectively.
Stevens’
involvement in poaching commenced
shortly after his arrival in Port Elizabeth from Bloemfontein during
2004 and terminated when
he was arrested in November 2007 for abalone
related offences. It is not in issue that
Stevens
was placed under witness protection
for some time until interviewed by Colonel
Johannes
Hendrik Smith
(
Smith
)
whereafter he voluntarily made a statement in connection with this
case. It is evident that
Stevens
has intimate knowledge of the
methodology involved in the harvesting and preparation of saleable
abalone. He narrated his rise through
the ranks, from being the
lowest, a “guardjie”, i.e. the person carrying the
abalone from the boats to land, to a sorter,
storeman, renter of
homes and ultimately an intermediary between the seller and buyer.
Abalone, he recounted, differed in size,
the nomenclature employed in
its illicit trade to distinguish the various sizes, being small,
medium and large. After being removed
from the sea, the abalone would
be transported to safe houses where it would be sorted according to
size i.e. small, medium and
large, preserved, generally by being
dried by artificial means and thereafter stored in deep freezers
pending transportation to
specific destinations
inter
alia
, Cape Town,
Bloemfontein and Johannesburg.
[14]
Stevens’
working knowledge of the manner in
which the abalone was transported is also not in dispute. To avoid
detection the vehicle in which
the abalone was transported would
follow an advance vehicle, the lead vehicle. Both drivers would be
provided with cell phones,
the sim card of which would contain only
the respective drivers’ numbers and nothing else. The lead
vehicle would travel
ahead, generally at a distance of between 20 –
25 kilometres, and, in the event of a roadblock or a police presence
ahead,
would telephone the other driver to appraise him thereof in
which event an alternative route would be agreed upon or some other

course adopted to evade the police.
[15]
Stevens
initially worked for two (2) well
known abalone poachers in Port Elizabeth viz
Mario
de Ridder
and
Jason
Ross (Ross)
both of whom
were heavily involved in the illegal trade. Logistical problems
relating to the transportation of the abalone necessitated
them
acquiring a safe house in Johannesburg. To that end he, accompanied
by
Ross’
brother,
Alan
,
and the latter’s cousin, one
Jonathan
11
journeyed to Johannesburg where he
rented a safe house in Norkem Park, a suburb of Johannesburg. The
requisite deep freezers were
soon acquired and abalone stored in the
house.
Stevens
adverted to a system employed to avoid
detection but it is unnecessary, for purpose of this judgment, to
incorporate those herein.
Suffice it to say it was akin to a cloak
and dagger operation.
Stevens
regularly commuted to and from
Johannesburg either by air or in the lead vehicle and recalled an
incident during February 2007 whilst
en route to Port Elizabeth where
he was appraised that a shared load i.e. belonging to two different
poachers was en route to Johannesburg.
[16] His testimony hereanent related
to count four (4) and an amendment was sought to alter the date
reflected on the indictment
from May 2007, to February 2007. There
being no objection, the amendment was granted. Paraphrased his
evidence was as follows -
the shared load, several bags of abalone,
was differentiated by some being tied with cable ties and masking
tape and the others
not. All the bags were duly received by him and
stored in the freezers in the house. In due course a Chinese buyer
bought the unmarked
bags which contained the larger abalone but
declined to take the smaller abalone. When
Stevens
communicated this information to
Ross
,
he advised him to keep the eleven (11) bags containing the small
abalone in the freezer until further notice.
Stevens
flew back to Port Elizabeth and about
a week later was informed by
Alan
that he would have to
accompany him and his wife to Johannesburg by air. They were met at
the airport by
Ross
who took
Alan
and his wife to a hotel before
returning to the airport where
Ross
collected accused no. 1, introduced
them and informed
Stevens
that he (i.e. accused no. 1) was the
owner of the eleven (11) bags in the house. They left the airport and
Ross dropped him and
accused no. 1 at Emperor’s Palace hotel in
Johannesburg where, later the evening, accused no. 5 arrived and
joined them.
He, and accused no. 1 thereafter left the complex in a
vehicle driven by accused no. 5 and he directed the latter to a
shopping
complex in Norkem Park. When their vehicle stopped at the
McDonald’s take out, he noticed accused no. 3 stopping next to
them.
Stevens
,
on the instructions of
Ross
,
was to deliver the eleven (11) bags at the house to accused no. 1.
Given the clandestine nature of the operation however, only
Stevens
and accused no. 3 repaired to the
house and loaded the abalone into the vehicle. Accused no. 3 drove
off with the load and
Stevens
walked a few blocks away before
phoning accused no. 1 and giving him directions where to collect him
which he duly did. He, accused
no. 1 and accused no. 5 returned to
the McDonalds car park where they met up with accused no. 3 before
returning to Emperor’s
Palace hotel. In the early hours of the
morning a Chinese man arrived at the hotel and he and accused no. 5
left the room before
returning after some time. Early the next
morning all four (4) of them flew back to Port Elizabeth.
[17]
Ross’
involvement in poaching eventually led
to his arrest and this rendered
Stevens
down and out. During his impecunious
state he fortuitously met accused no. 1 at a service station in Port
Elizabeth where he lounged
about and thereafter began working for
him. Although Stevens admitted that he performed some work for
accused no. 1’s business,
Lungile Industries, his real
involvement was in his abalone activity as a storeman at the abalone
drying and storage shed on a
small holding in Seaview.
Stevens
became the link between the divers and
accused no. 1. The abalone would either be picked up by him at the
seaside or delivered to
the small holding where it would be weighed.
The weight would be telephonically conveyed to accused no. 1 and the
divers paid after
he visited accused no.1‘s home and received
the money from accused no. 2 who handled all the finances.
[18]
The
next chapter in
Stevens’
involvement in accused no. 1’s
poaching affairs concerned a load of abalone transported to
Bloemfontein at the end of September
2007 (
count
6
)
12
.
He recalled the circumstances in which he and accused no. 3 loaded
half the load at the store in Seaview and the other half at
accused
no. 3’s home into a Nissan bakkie fitted with a rear,
concertina type roller door. It is not in issue that the vehicle
had
been purchased at an auction in Johannesburg where accused no. 1 and
accused no. 3 were together. In his evidence in chief
accused no. 3
testified that he was unsure whether he or accused no. 1 bid for the
two (2) vehicles purchased, i.e. the Nissan
bakkie and the Colt
bakkie. He stated that although he had sufficient money to pay for
the Nissan, accused no. 1 did not. Consequently,
accused no. 1
transferred money into his Absa banking account which he used to pay
for the bakkie.
Stevens
had intimate knowledge hereof. He
recounted how accused no. 1 telephoned from Johannesburg and
instructed him to obtain money from
accused no. 2 and deposit it into
accused no. 3’s banking account which he duly did. Accused no.
1 of course denied having
purchased the bakkie and maintained that it
was in fact purchased by accused no. 3. The latter’s convoluted
explanation why
the money had to be transferred into his banking
account is plainly nonsensical and designed to disguise the fact that
it was in
fact purchased by accused no. 1.
[19] Accused no. 3’s evidence
concerning the bakkie is furthermore in direct conflict with what had
been put to
Stevens
by Mr
Griebenow
. In evidence in
chief he stated that he purchased the vehicle for himself and paid
for it at the auction. That is in fact confirmed
by exhibit “QQ”,
the statement by Mr
Darren Winterstein
, a director of the
auction house, Aucor (Pty) Ltd. During cross-examination he confirmed
that after repairs had been effected to
the vehicle he kept it at his
home and, after being cajoled by
Stevens
into agreeing to
transport a load of abalone to Bloemfontein, he proceeded to the
store in Seaview where the abalone was loaded
onto the Nissan
whereafter he dropped
Stevens
at the Walker Drive shopping
centre and proceeded to Bloemfontein trailing the lead vehicle driven
by accused no. 5.
Stevens
of course denied being dropped off
at the centre and I accept his evidence that accused no. 3 dropped
him off at a church where
he was picked up by accused no. 1.
[20] Accused no. 3’s evidence
concerning ownership of the Nissan is clearly false. It was put to
Stevens
by his then attorney, Mr
Griebenow
, that
accused no. 3 bought the Nissan at the auction on the instructions of
Fabian Roberts
(
Fabian
) and fetched the vehicle from
him immediately prior to loading the abalone at Seaview before
departing to Bloemfontein. What was
put is irreconcilable with both
accused no. 3’s and accused no. 1’s evidence and
vouchsafes
Stevens’
truthfulness.
Fabian
is,
according to the accused, the real villain. His name features
prominently in the telephone transcripts and it is clear that
he was
heavily involved in poaching.
[21] Accused no. 1’s direct
involvement in the illicit trade in abalone during 2005 to March 2008
was similarly chronicled
by
Horn
.
Horn
readily
admitted his involvement in the poaching of abalone for several years
until his arrest during November 2007. What follows
is his narrative.
After his arrest, he was questioned by Captain
Cronje
and
divulged the names of persons listed as contacts on his cell phone
address book. He transcribed those numbers onto a sheet
of paper and
supplied it to
Cronje
. The document was handed in as exhibit
“AA” and it reflects the names and cell numbers of
various poachers including
that of accused no. 1.
Horn’s
decision to resort to a life of poaching was occasioned by the
failure of his business endeavours. Initially he dove for abalone

which he sold on the black market and soon attracted the attention of
known poachers,
Pierre Lourens
(
Lourens
) and
Ronnie
Viviers
, whose names appear on exhibit “AA”. The
latter were employed by one
Deon de Villiers
(
Divvy
)
and in due course
Lourens
introduced him to accused no. 1. In
terms of their newly established business relationship he now began
buying abalone from other
divers and commenced storing it for accused
no. 1 first in Despatch and thereafter at various other places in
Port Elizabeth and
its environs.
[22] This business relationship led to
Horn
visiting
accused no. 1’s home where he would receive money to pay the
divers either from accused no. 1 or in his absence,
accused no. 2.
Horn’s
evidence comprised the entire gamut of
the illegal trade in abalone and was never seriously disputed. What
was placed in issue was
the involvement of accused no. 1 and accused
no. 2. Thus, the opening salvo in Mr
Price’s
cross-examination was the exclamatory
declaration that accused no. 1 and accused no. 2 had never, prior to
him (i.e.
Horn
)
entering the courtroom, seen him.
Horn’s
immediate riposte, framed as a
question, was where would he then have obtained accused no. 1’s
cell phone number from. The
retort, perhaps understandably, was not
pursued. Instead, the focus of the cross-examination shifted to show
that
Horn’s
evidence was a complete and utter
fabrication.
Horn
was asked to describe the house, its
surrounds and its features. His answers were somewhat vague and
ultimately led to a request
made by Mr
Le
Roux
in re-examination that
Horn
be
conveyed in order for him to point out the house he alleged he
visited on divers occasions.
[23] On my instruction and at the
behest of the prosecutor and the defence, Captain
Els
(Els)
, a member of the
South African Police Services, was assigned the task of conveying
Horn
in
order for the latter to point out the home of accused no.’s 1
and 2. The outcome
13
of this endeavour was that
Horn
,
albeit that his directions were initially somewhat wayward, directed
Els
to
the former house of accused no.’s 1 and 2. In argument before
me Mr
Price
submitted that
Horn’s
success in finding the house was
either pure coincidence or that
Horn
had been appraised of the exact
location of accused no. 1’s home. It is not in issue that at
the time this pointing out occurred,
accused no. 1 and his family had
relocated to other premises and the home substantially refurbished.
Horn’s
evidence is not open to attack and the
pointing out, more than three (3) years after his relocation to
Pretoria attests to his truthfulness.
Accused no.’s 1 and 2’s
denial of any prior association with him is patently false and I
accept that he worked for
accused no. 1 and, on occasion, together
with
Lourens
,
repaired to the home where accused no. 2 handed money over to them.
The inference is inescapable that she knew precisely that
the money
paid related to the illegal trade in abalone and constituted payment
to the divers for the abalone. The foregoing evidence
related to the
fourth (4
th
),
fifth (5
th
)
and seventh (7
th
)
activities, but were considered out of sequence purely to explain the
modus operandi
of
the enterprise. I revert now to the first (1
st
)
activity.
The first activity
[24] Further evidence of accused no.
1’s involvement in and association with the illegal trade in
abalone was inadvertently
uncovered on 10 October 2005, when traffic
officer
Morné
Mulder
, on patrol duty along the
road near Graaff Reinet, signalled to an oncoming motorist that
he/she should stop for a routine check.
The vehicle, a Golf, bearing
the registration letters and numbers DKH 477 EC, was searched and a
substantial quantity of abalone
found. The driver, a Mr
Leetion
,
was duly arrested and he and the vehicle removed to the South African
Police Services in Graaff Reinet. Warrant officer
Pika
,
attached to the Port Elizabeth organised crime unit, was contacted
and hastened to Graaff Reinet and seized two (2) cell phones
from
Leetion
. Scrolling through the contacts on the phone he
recorded the numbers on a piece of paper, handed in as exhibit “T”.

Both accused no. 1 and accused no. 2’s numbers, 082 659
2820 and 083 320 2619 appear thereon. Both accused formally

admitted in exhibit “S1” that those were the numbers of
their respective cell phones.
Pika’s
evidence hereanent
was never challenged. Although accused no. 1 was led concerning his
relationship, if any, with
Leetion
, and maintained that
Leetion
worked for
Fabian
, no attempt was made to
proffer any explanation for the inclusion of his cell phone number on
Leetion’s
phone. So too, in the case of accused no. 2.
[25] This activity, essentialized as
count 3, represents the first in sequence of the activities relied
upon by the state as constituting
the pattern of racketeering
activities. The accused formally admitted that as regards count 3 –
“
Ad
Count 3
(i) That on the 10
th
of October 2005 at about 15h25 and near Graaff Reinet, AJ Leetion,
whilst being the driver of a vehicle with registration DKH 477
EC,
was stopped by two traffic officers.
(ii) That 3147 units of
shucked abalone was found in the said vehicle and that AJ Leetion did
not have a permit or could not produce
any authority to transport or
be in possession of the abalone.
(iii) That the abalone
was the
Haliotis Midae
species.
(iv) That on 17 January
2006 and in the Magistrate’s court in Graaff Reinet AJ Leetion,
under case number 2439/05, was convicted
of the Contravention of
Regulation 36(1)(a) of the Regulations as promulgated under
Government Notice R.1111 and published in Government
Gazette 19205 of
2 September 1998, as amended, read with Regulation 1 and 96 of the
said Regulations as issued in terms of Section
77 of Act 18 of 1998,
the Marine Living Resources Act and read with Section 1 and 58(4) of
the said Act {The unlawful engagement
in fishing, collecting,
keeping, transportation, controlling and or being in possession of
abalone without a permit.}
(v) That on 10 March
2006 he was sentenced to 18 months imprisonment.
(vi) That the value of
the abalone at the time was approximately R350 000-00.”
[26] I shall in due course deal fully
with the evidence of both
Marthinus
and
Raymond
, but
mention, as part of the apercu detailing the accuseds’
involvement in the activities listed on annexure A to the indictment,

that both
Marthinus
and
Raymond
testified that they
knew
Leetion
.
Raymond
testified that one of the persons
to whom he handed accused no. 1’s abalone was
Leetion
whilst
Marthinus
narrated the circumstances in which he was
appraised by accused no. 1 of
Leetion’s
arrest and
subsequent conviction. It is clear from his evidence that he and
accused no. 1 were in the lead vehicle which escorted
Leetion
to Johannesburg and although
Marthinus’
recollection was
sketchy it is clear that the incident he testified to related to
Leetion’s
arrest near Graaff Reinet. This was clearly an
activity of the enterprise.
The second activity
[27] On 20 May 2006, Senior Fisheries
Inspector Colonel
Rudolf Gerhard van der Berg
(
van der
Berg
) was on patrol duties in Algoa Park with a member of the
South African Police Services. Acting upon information relayed to
them
they stopped a white Toyota Quantum panel van bearing Gauteng
registration plates. The vehicle was searched and found to contain

abalone. The accused formally admitted, pursuant to the provisions of
section 220 of the
Criminal Procedure Act
that, -
“
Ad
Activity 2, Schedule “A”
That on the 20
th
of May 2006 at about 13h30 and near Port Elizabeth, Nico Schultz,
whilst being the driver of a vehicle with registration SLB
348 GP
was stopped by Mr Gerhard van der Berg, an official from Marine and
Coastal Management.
That 9947 units of
shucked abalone was found in the said vehicle and that Nico Schultz
did not have a permit or could not produce
any authority to
transport or to be in possession of the abalone.
That the abalone was
of the Haliotis Midae species.
That on 25 May 2006
and in the Magistrate’s court in Port Elizabeth, under case
number 27/2952/06, Nico Schultz was convicted
of the Contravention
of Regulation 36(1)(a) of the Regulations as promulgated under
Government Notice R.1111 and published in
Government Gazette 19205
of 2 September 1998, as amended, read with Regulation 1 and 96 of
the said Regulations as issued in
terms of Section 77 of Act 18 of
1998, the Marine Living Resources Act and read with Section 1 and
58(4) of the said Act {The
unlawful engagement in fishing,
collecting, keeping, transportation, controlling and or being in
possession of abalone without
a permit.}
That on the 3
rd
of August 2007 he was sentenced to 12 months correctional
supervision in terms of section 276(1)(h) of Act 51 of 1977.”
[28] The circumstances under which the
Quantum was found to contain abalone was narrated by
Raymond
.
Acting on the instructions of accused no. 1, he loaded the abalone
onto the vehicle prior to handing it over to
Nico
Schultz
, the driver
depicted on exhibit “V14”. The weight of the evidence
clearly establishes that the abalone belonged to
the enterprise and
was destined for its buyers in the hinterland.
The third activity
[29] On 7 July 2006 warrant officer
Zola
Yako
(
Yako
)
was on patrol with a colleague, warrant officer
Piet
Bester
(
Bester
).
Acting on information they followed a Tata bakkie towing a trailer
laden with bags of charcoal from Walker drive in Sherwood
to the
Metlife Plaza in Kabega Park. When the driver alighted in the car
park
Bester
approached him and requested
permission to search the trailer. The driver consented and, on
inspection, bags of abalone were found
concealed under the charcoal.
Yako
testified
that the incident occurred at 09h20
14
.
The bakkie and the load of abalone on the trailer was photographed
(exhibit “U”). The accused formally admitted that
–
“
Ad
Activity 3, Schedule “A”
That on the 7
th
of July 2006 at about 09h20 and near Makro, Kabega Park, Port
Elizabeth, Stephanus Schultz, whilst being the driver of a vehicle

with registration DNT 094 EC with a trailer, was stopped by members
of the South African Police Services.
That 11144 units of
shucked abalone was found in the said vehicle and that Stephanus
Schultz did not have a permit or could not
produce any authority to
transport or to be in possession of the abalone.
That the abalone was
of the Haliotis Midae species.
That on the 7
th
of November 2007 and in the Magistrate’s court in Port
Elizabeth, under the case number 27/7175/06, Stephanus Schultz was

convicted of the Contravention of Regulation 36(1)(a) of the
Regulations as promulgated under Government Notice R.1111 and

published in Government Gazette 19205 of 2 September 1998, as
amended, read with Regulation 1 and 96 of the said Regulations as

issued in terms of Section 77 of Act 18 of 1998, the Marine Living
Resources Act and read with Section 1 and 58(4) of the said
Act {The
unlawful engagement in fishing, collecting, keeping, transportation,
controlling and or being in possession of abalone
without a permit.}
That on 13 December
2007 he was sentenced to a fine of R15 000-00 or 6 months
imprisonment and a further 2 years correctional
supervision in terms
of section 276(1)(h) of Act 51 of 1977.”
[30] The enterprise’s and
accused no. 1’s direct involvement in this activity was
adverted to by both
Raymond
and
Marthinus
.
Raymond
was instrumental in packing the abalone onto the trailer whilst
Marthinus
was to accompany accused no. 1 in the lead vehicle
to Johannesburg. To that end he and accused no. 1, who had secured
Raymond’s
BMW for the trip were at a garage near Makro
where accused no. 1 received a telephone call that the police had
seized the Tata.
The trip to Johannesburg had to be aborted
accordingly.
The fourth activity
[31] Accused no. 1’s involvement
in the fourth (4
th)
activity listed in Schedule “A”
was somewhat tentatively admitted in terms of section 220 of the
Criminal Procedure Act
as follows -
“
Ad
Activity 4, Schedule “A”
That on the 3
rd
of December 2006 at about 21h10 and on the N1 National road, Deal
Party, Port Elizabeth, accused 1, whilst being the driver of
a
vehicle with registration CSR 989 EC was stopped by members of the
South African Police Services.
That 1676 units of
shucked abalone was found in the said vehicle and that accused 1 did
not have a permit or could not produce
any authority to transport or
to be in possession of the abalone.
That the abalone was
of the Haliotis Midae species and the approximate value was
R300-000-00.
That on the 13
th
of June 2007 and in the Magistrate’s court in Port Elizabeth,
under the case number 27/7175/06 and attached as Annexure
“A”,
accused 1 was convicted of the Contravention of Regulation 36(1)(a)
of the Regulations as promulgated under
Government Notice R.1111 and
published in Government Gazette 19205 of 2 September 1998, as
amended, read with Regulation 1 and
96 of the said Regulations as
issued in terms of Section 77 of Act 18 of 1998, the Marine Living
Resources Act and read with
Section 1 and 58(4) of the said Act {The
unlawful engagement in fishing, collecting, keeping, transportation,
controlling and
or being in possession of abalone without a permit.}
and sentenced to 18 months conditionally suspended for a period of 5
years.”
Included in the annexure referred to
in paragraph (iv) thereof, to wit, the transcript of the proceedings
in the magistrate’s
court, is a plea explanation pursuant to
the provisions of section 112 (2) of the
Criminal Procedure Act
wherein the circumstances in which accused no. 1 came into possession
of the abalone was adverted to viz. –
“
1.
. . .
2. . . .
3. . . .
4. I attended a braai
whereafter I was asked to drop off one of the people who attended the
braai at his home in Sidwell. When I
dropped this person he asked me
whether I would deliver something for him to a certain given address
on my way home. I agreed.
I waited until the man returned. On his
return I saw that he was loading bags of abalone onto my bakkie. I
objected but he assured
me that there will be no problem. As a result
of my alcohol intake at the braai I was easily convinced.”
This seemingly exculpatory explanation
tendered for his possession of the abalone is patently false in the
light of the totality
of the evidence adduced before me that he was
one of the illegal abalone industries’ big kahunas in Port
Elizabeth. The inference
may legitimately be drawn that this activity
was that of the enterprise.
The fifth activity
[32] The fifth (5
th
)
activity involves the participation of
Stevens
and has been fully set out in
paragraph [16] hereinbefore. Notwithstanding the concession made by
Mr
Le Roux
,
I am satisfied that accused no. 5, by his conduct, directly
participated in the enterprise’s affairs.
The sixth activity
[33] Counsel for the state conceded
that this activity, essentialized as count five (5)
15
has not been established and that
accused no.’s 1, 2 and 3 are entitled to their acquittal
hereanent.
The seventh activity
[34] This relates to count six (6) and
has been dealt with in paragraphs [18] to [20] viz. the offences for
which accused no. 3
and accused no. 5 were convicted.
The eighth, ninth and tenth
activities
[35] These activities relate to counts
seven (7), eight (8) and nine (9) viz. the transportation of abalone
to Mozambique by
Raymond
,
Marthinus
and
Boetman
.
Although their testimony was subjected to a barrage of criticism the
attack upon their credibility and reliability is completely

unwarranted. Although their evidence is not entirely without blemish,
whatever contradictions or inconsistencies there were can
properly be
attributed to the passage of time which has elapsed since they first
became involved in accused no.’s 1 and 2’s
nefarious
activities. There is abundant corroboration for their testimony from
other witnesses, documentary evidence and the telephone
records,
exhibit “Z”, to which I now turn.
[36] These telephonic communications
are strongly relied upon by the state as affording ample
corroboration for the evidence of
the
Janse
van Rensburgs
relating to
the eighth (8
th
),
ninth (9
th
)
and tenth (10
th
)
activities which the state alleged were undertaken during the period
16 December 2008 to January 2009. Although the initial authorisation

was valid only until 21 December 2008, it was extended by a further
order of Swart J until 17 March 2009 (exhibit “Y”).
Both
written directions were admitted into evidence with the consent of
the accuseds’ legal representatives.
[37] Notwithstanding the defences’
acquiescence in the admission of exhibits “X” and “Y”
however,
Mr
Price
,
in his written heads of argument sought to impugn the admissibility
not only of the intercepted telephone calls post 18 December
2008 but
moreover the admissibility of the extension directive itself. This
incongruity is perplexing to say the least. Be that
as it may
however, the submission that Swart J
“
did
not apply his mind to the second directive”
is
spurious. It is apparent from
Jooste’s
affidavit in support of the extension
that cogent reasons existed for seeking the extension. As will appear
hereunder, the reasons
for seeking to have these telephonic
communications consigned to the dustbin, is not difficult to fathom.
Their content, from the
most unlikely source, the accused themselves,
vouchsafes the
Janse van
Rensburgs’
truthfulness.
[38] Special Investigator
Marko
Strydom
(
Strydom
),
the official designated to monitor the communications to and from
accused no. 1’s cellular phone testified that over the
passage
of time he developed a personality profile of the persons engaged in
conversation from which he was able to identify the
persons in
communication with accused no. 1. That tittle of evidence was never
challenged under cross-examination. In Mr
Price’s
written heads of argument however
Strydom’s
evidence identifying the interlocutors
was assailed and it was submitted that in the absence of expert voice
analysis testimony,
no weight whatsoever be accorded to
Strydom’s
evidence hereanent. The fact of the
matter is that
Strydom’s
evidence was never challenged. To now
suggest that in as much as the accused did not admit their voices on
the recording that
Strydom’s
evidence was of little or no probative
value is disingenuous. As pointed out in
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
16
-
“
[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’s
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’s testimony is accepted as
correct. This was enunciated by the House of Lords in
Browne
v Dunn
and has been adopted and consistently followed by our courts.
[62] The rule in
Browne
v Dunn
is not merely one of professional practice but ‘is
essential to fair play and fair dealing with witnesses’. It is
still
current in England and has been adopted and followed in
substantially the same form in the Commonwealth jurisdictions.
[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 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 witness or others and to explain contradictions on which
reliance is to be placed.”
Apart from the aforegoing I
unreservedly accept
Strydom’s
evidence that during the prolonged
period of monitoring accused no. 1’s telephone calls, he
succeeded in identifying the interlocutors.
[39] The telephonic communications
relevant to these proceedings and relied upon by the state were
handed in as exhibit “Z”
and covered the period 1
December 2008 to 9 January 2009. During
Strydom’s
initial cross-examination, objection
was taken to specific telephonic communications where a telephone
number other than of accused
no. 1 was reflected on either the
“
called
address”
(destination)
or
“
calling
address”
(received
from). Counsel for the accused submitted that it was apparent
herefrom that
Strydom
had listened to and monitored
telephone numbers not authorised in terms of the directive. There is
no substance in the objection.
I accept
Strydom’s
evidence that in those instances where
a cellular number other than that of accused no. 1 appears in exhibit
“Z” in
either scenario, i.e. called address or calling
address, that accused no. 1, notwithstanding his denial, diverted the
call to that
particular number. The telephone number monitored
remained that of accused no. 1 and no other.
[40] During his cross-examination of
Strydom
,
and in an attempt to impugn the reliability of the transcriptions in
exhibit “Z”, Mr
Price
handed up a random assemblage of
transcripted conversations (exhibit “M”) which he
submitted were riddled with mistakes
and reflective of the
unreliability of exhibit “Z”.
Strydom
was cross-examined at length on
obvious incorrect data reflected on exhibit “M”
17
and readily conceded that mistakes did
appear therefrom. The upshot of this exercise however was that
counsel were directed to listen
to the compact discs from which the
transcriptions (forming part of exhibit “F”) emanated.
During
Strydom’s
re-examination, whatever typographical
errors appearing on exhibit “Z” were corrected and
exhibit “Z” amended,
without demur from the defence and
it properly records the identity of the interlocutors and the
communications between them albeit
that some of the transcriptions
are punctuated by words such as “indistinct” and the
like. Notwithstanding such deficiencies
however, objectively read,
they reveal the direct involvement of the accused in the commission
of the offences charged.
[41] The accused furthermore formally
admitted that –
“
(i)
That at all times relevant to the indictment a cell phone with the
cell number of 0826592820 was the contract phone of Accused
1.
(ii) That at all times
relevant to the Indictment a cell phone with the cell number
0833202619 was the contract phone of Accused
2.
(iii) That the cell
phone with the number 0826592820 the subject was of an interception
direction issue in terms of the Regulation
of Interception of
Communications and Provision of Communication-related Information
Act, Act 70 of 2002.
(iv) That the cell
phone communications was intercepted and monitored pursuant to a
judge’s direction in terms of the Regulation
of Interception of
Communications and Provision of Communication-related Information
Act, Act 70 of 2002.
That the cell phone
communications so intercepted were digitally recorded and stored in
audio files on a hard drive of a computer.
That the telephonic
communications [audio files] for the period 1 December 2008 to 21
January 2009 from and to the cell phone
0826592820 was transcribed.
That the
transcriptions are a true reflection of the content of the
conversation so recorded.”
[42] The accuseds’ involvement
in the offences charged can best be illustrated by analysing the
intercepted calls following
the arrest of accused no.’s 3 and 4
and
Marthinus
and
Boetman
and
thereafter to retrace the events as they unfolded and which
ultimately led to their arrest. At 07h23 on 9 January 2009, accused

no. 3’s wife,
Chanelle
telephoned accused no. 1 on his cell
no. 082 659 2820. The call was answered by accused no. 2. After
a brief exchange of pleasantries,
she informed accused no. 2 that she
had not spoken to accused no. 3 since midday the previous day.
Accused no. 2 expressed her
surprise and sought confirmation that the
former had in fact last spoken to accused no. 3 at noon the previous
day. Accused no.
1 interjected saying that she i.e.
Chanelle
should phone accused no. 3 and told
accused no. 2 to convey what information they had. She notified her
that accused no. 1 had spoken
to accused no. 3 at 12h30 the previous
day and said
“
they
might be at the edge”
.
Accused no. 3 then immediately
telephoned accused no. 1 and said
“
oh
S, they pulled them off”
18
.
He said something about
“
I
am going to get out of here, they have taken them out of the truck,
they are opening the back or something”
.
Chanelle
then
enquired whether this had occurred in Johannesburg whereupon accused
no. 2 informed her that it was not in Johannesburg but
“
almost
on the other side”
.
The remainder of the conversation proceeded as follows:-
“
FEMALE
VOICE IN:
And,
ja, and was he, was he not with them or what?
FEMALE VOICE:
No, no. What he did was, you see, they, they were going, they were
going to cross over, so he was on the one station that [VOICES
IN
BACKGROUND] you cross over and they, the other vehicle came through
and they were on the other side and then he said that he
saw a car in
front of it and a car behind it and they got out of the vehicle and
they were opening the back.
FEMALE VOICE IN:
Oh.
FEMALE VOICE:
OKAY. NOW HE SAW THIS, SO HE SAID TO Pete ‘I am getting out of
here’ and then a few minutes later Peter said no, Peter
phoned
him and he said, ‘no, no, I am getting out of here’ and
he left, but we haven’t heard from him since and
we tried to
phone him again and his phones were off, so (indistinct), what he
could have possibly done is, switched the phone off
and F chopped it.
FEMALE VOICE IN:
But what about the other one?
FEMALE VOICE:
Well, now, we were flipping waiting, waiting, waiting. When you
phoned now we thought okay, well, okay, obviously now the police
have
got him, because he phoned us and he spoke to you, but we’ve
heard nothing and you say you have heard nothing.
FEMALE VOICE IN:
Ja (indistinct - . . . intervenes)
FEMALE VOICE:
Now we don’t know what the F is going on . . . (intervenes)
FEMALE VOICE IN:
(Indistinct) (indistinct) F in an accident and (indistinct)
FEMALE VOICE:
No, (indistinct) (indistinct)
FEMALE VOICE IN:
(Indistinct)
FEMALE VOICE:
No, we don’t know what the F is going on.
FEMALE VOICE IN:
And he obviously hasn’t book in any hotel?
FEMALE VOICE:
No.
FEMALE VOICE IN:
Because if he was in Jo’ burg then he would have phoned.
FEMALE VOICE:
exactly, that what Peter said. You know, what’s, what’s
odd, he could have come, like coming to the closest town and
go to a
tiekie-box and phone your cell no or my cell no. . . (intervenes)
FEMALE VOICE IN:
Ja.
FEMALE VOICE:
Or Peter’s contact cell number, any cell number, I mean he
would remember somebody’s cell number, so somebody would
have
heard something by now.
FEMALE VOICE IN:
Ja.
FEMALE VOICE:
But now, his driver said, I don’t know, but (indistinct) he
lives in the F bottom of a beer bottle, Peter says his driver

apparently spoke to him at four o’clock yesterday. Peter says,
no that is F impossible, because he’s phone is off,
his phone
has been off since one o’clock.
FEMALE VOICE IN:
Ja, no, I phoned him just after one o’clock and his phones were
off (indistinct – speaks simultaneously)
FEMALE VOICE:
Yes, peter said . . . (intervenes - )
FEMALE VOICE IN:
(Indistinct) I (indistinct) those phones were off, (indistinct)
(indistinct).
FEMALE VOICE:
Dead right, dead right. Now that is what’s confusing us, but
you’ve heard nothing?
FEMALE VOICE IN:
No, the last time was five past twelve when he phoned me.
FEMALE VOICE:
No, I don’t know, I don’t know what the F (indistinct)
(indistinct), like Peter said, its either a knock, or that’s

(indistinct), because he said to Peter there’s a, there’s
a Volkswagen in front , he said they were unmarked vehicles
again,
you know mos, they always with unmarked vehicles, that’s not
police cars, you understand what I am saying.
FEMALE VOICE IN:
Ja, (indistinct)
FEMALE VOICE:
There was one in front and (indistinct – speak simultaneously)
(indistinct) like he (indistinct) (indistinct) where and they
are
(indistinct)
FEMALE VOICE IN:
Now, what do, what do we do, what do we think? Do we phone the long
one and ask him to query?
FEMALE VOICE IN:
[Amused] Oh, Jirre.
FEMALE VOICE:
Do you understand what I am saying.
FEMALE VOCIE IN:
Uhm-uhm.
FEMALE VOICE:
No we are sitting patiently waiting and then you phoned, I though
okay, thank God we know now where he is of what is going on.
FEMALE VOICE IN:
If he is (indistinct) (indistinct) phone call (indistinct).
FEMALE VOICE:
He has to, they have to. Because remember, there are four of them.
Somebody has to phone somebody, you understand what I am saying?
FEMALE VOICE IN:
Ja.
FEMALE VOICE:
There’s four people. Some of them got to get contact sooner or
later.
FEMALE VOICE IN:
Ja, but then (indistinct) (indistinct) in a strange place, I mean, do
they work the same and (indistinct).
FEMALE VOICE:
Of course, yes. They have to. No, no, no they haven’t gone
over.
FEMALE VOICE IN:
Oh.
FEMALE VOICE:
It is here . . . (intervenes)
FEMALE VOICE IN:
Oh.
FEMALE VOICE:
On this side. They had worked exactly the same, you know, the
(indistinct) it is not illegal.
FEMALE VOICE IN:
Jeeziz.
FEMALE VOICE:
Do you understand?
FEMALE VOICE IN:
Ja. Uhm.
FEMALE VOICE:
They say if they wanted to catch them they had to catch them on this
side, not on that side.
FEMALE VOICE IN:
Ja.
FEMALE VOICE:
You understand, that’s why they stopped them, but now we are
confused. We are not sure whether it was (indistinct).
FEMALE VOICE IN:
No, no.
FEMALE VOICE:
Now if you, if you hear anything . . . (intervenes)
FEMALE VOICE IN:
I mean you have to . . . (intervenes)
FEMALE VOICE:
But this sign is pretty dead, Peter’s contact phone and my died
already, and we couldn’t bring chargers for our contract

phones, because we were just going to buy a phone over there.
FEMALE VOICE IN:
Where? Where are you? (Indistinct - . . . intervenes)
FEMALE VOICE:
We are (indistinct) on holiday.
FEMALE VOICE IN:
Oh, really.
FEMALE VOICE:
Yes.
FEMALE VOICE IN:
Oh, F
FEMALE VOICE:
Yes.
FEMALE VOICE IN:
Okay, well, if I hear anything then I will . . . (intervenes)
FEMALE VOICE:
Please let us know and where (indistinct – speak
simultaneously) and all the details so that Peter can go sort
something
out.
FEMALE VOICE IN:
Ja. And if he (indistinct) give me call.
FEMALE VOICE:
If I hear anything I obviously I will let you know, but obviously we
are waiting for you to let us know, because obviously he need
to
phone you, not us.
FEMALE VOICE IN:
Ja, okay. Okay, thanks.
FEMALE VOICE:
But anyway, as soon as you hear anything, I am going to get, what’s
his name, Alwyn to maybe phone . . . (intervenes)
FEMALE VOICE IN:
Ja.
FEMALE VOICE:
Phone around here, up there (indistinct) heard anything or seen
anything, or (indistinct) is going on, you know what I mean . .
.
(intervenes)
FEMALE VOICE IN:
I will.
FEMALE VOICE:
Thanks, hey.
FEMALE VOICE IN:
Thanks very much.
FEMALE VOICE:
Bye.
FEMALE VOICE IN:
Bye.
FEMALE VOICE:
Bye.”
[43] Approximately four (4) hours
later,
Chanelle
once more telephoned accused no. 1 and
after an initial pause, accused no. 2 answered.
Chanelle
asked for the registration number of
the vehicle driven by accused no. 3 and she responded by saying that
she would attempt to do
so and revert to her.
[44] Eight (8) minutes later accused
no. 1 received a call from
Marinda
,
Marthinus’
wife. I interpolate to say that this
conversation must be examined against the background of accused no.’s
1 and 2’s
defence that they had nothing to do with
Mathinus
and
Boetman’s
trip to Mozambique and had heard it
for the first time that morning when telephoned by
Fabian
.
After an initial pause and when she said “Hello”, the
call was ended. A few seconds later accused no. 2 called her
on
accused no. 1’s cell phone and when she gave her name, handed
the phone to accused no. 1.
Marinda
asked him
“
het
als toe goed afgeloop?”
to
which accused no. 1 responded saying
“
Hu-uhm,
nee. Nee.”
The
conversation proceeded as follows
19
:-
“
VROUESTEM:
Wel, ek kry, ek kry hulle glad nie in die hande nie en ek begin nou
worry.
MANSSTEM IN:
Ek
worry ook, maar okay, kyk hierso, ja, okay, ek kan nie verstaan nie,
okay, maar moenie worry nie, alles sal alright wees, maar
okay, hulle
was fine né? Die trok, alles het goed geloop en hulle was in
Jo’burg, né . . . (tussenbei).
VROUESTEM:
En
toe gaan Johnno(?) en sy vriend voor en die ou man en die laaitie was
saam. Hulle, en hulle was amper daar, uhm, waar hulle
sou uitgeklim
het waar die ander ou sou oor gevat het . . . (tussenbei).
VROUESTEM:
Ja.
MANSSTEM IN:
En
toe het Johnno my gebel, okay?
VROUESTEM:
Ja.
MANSSTEM IN:
En
John het vir my gesê ‘o god’, ek moet net sien of
miskien hy sal my help moet nodig hê, want hulle,
daar, daar’s
‘n kar voor en agter die trok, hy staan oor die pad by die een
petrolstasie en die trok is by die ander
petrolstasie en daar is een
voor en een agter . . . (tussenbei).
VROUESTEM:
Ja.
MANSSTEM IN:
Hulle het ‘n wit ou en ‘n swart ou en hulle praat daar
met, met die toppie en die laaitie.
VROUESTEM:
And
hy, maar ek kan nie verstaan wat aangaan nie, want toe sê hy
vir my, ek bedoel ‘n ou kan nie so bad luck wees nie,
man. Toe
sê hy vir my nee, want daai ding is, toe sê hy nee, toe
sê ek vir hom maar nou gaan vind uit wat die
fout is en bel die
ou man. Toe sê hy nee-nee, hy wil net wegkom hier, hy wil net
wegkom hier, hy wil wegkom hier.
VROUESTEM:
Ja.
MANSSTEM IN:
Toe
sê hy wil net wegkom, hy gaan hom later bel, hy wil net wegkom
daar van die plek. Toe ry hy. Toe bel ek hom weer. Toe
sê hy
nee, hy wil net wegkom, hy gaan my nou bel. Ek sê bel vir die
ou en see of alles alright is.
VROUESTEM:
Ja.
MANSSTEM IN:
En
toe, toe ek hom try bel, so half-past-12, one o’clock, gister,
one o’clock, né?
VROUESTEM:
Ja.
MANSSTEM IN:
Fone af.
VROUESTEM:
Ah.
Ah.
MANSSTEM IN:
Fone af. En nou die twee voertuie, die vier mense net weg –
poef, gone, weg.
VROUSTEM:
Is als weg?
MANSSTEM IN:
Ek weet nie.
VROUESTEM:
So jy kry hulle glad
nie in die hande nie?
MANSSTEM IN:
Glad nie in die hande
nie.
VROUESTEM:
Nou wat dink jy wat het
gebeur?
MANSSTEM IN:
Marinda, ek weet nie.
Ek is so . . . (tussenbei).
VROUESTEM:
Hulle is nie opgesluit
nie, né?
MANSSTEM IN:
Ek weet nie, want kyk
hierso . . . (tussenbei).
VROUESTEM:
So jy weet nie of hulle
opgesluit is nie?
MANSSTEM IN:
Kyk hierso, as hulle,
as hulle gevang was, dan obviously is hulle gepimp. Verstaan jy?
VROUESTEM:
Ja.
MANSSTEM IN:
Maar ek weet nie by
wie, want daar kan nie baie mense wees nie, want dan was hulle
gepimp. Maar dan as hulle opgesluit is, hulle
moet ‘n oproep
kry. Dan gaan hulle mos, Thinus gaan jou most bel. Verstaan jy?
VROUESTEM:
(Onduidelik).
MANSSTEM IN:
En dank an jy my bel.
Verstaan jy?
VROUESTEM:
Ja.
MANSSTEM IN:
Dan kan ek reel, want
kyk as (onduidelik) – dit is, dit is ‘n groot F, as dit
die storie is, dan, maar dan, ek bedoel
ek het klaar met Alwyn
gepraat, ek het hom gebel. Toe sê hy nee, jy, ek kan nie nou,
hy kan nie bel nie, ek kan niks doen
nie, ek moet net wag. As hulle
iets verkeerd gedoen het en die Boere het hull gelaai, hulle sal ‘n
oproep kry . . . (tussenbei)”.
[45] The conversation continued in
much the same vein, accused no. 1 adding that he was beginning to
panic and then sought to reassure
her saying:-
“
MANSSTEM
IN:
Of so half-past-12. Of iemand, man ek weet nie, maar die beste is,
okay, alles sal alright wees, maak nie saak nie wat dit is.
As hulle
(onduidelik) is, al die goed is weg, hulle sal alright wees. As die
Boere, hulle sal borg kry, hulle sal afkom met ‘n
boete. Ek
bedoel ek sal reel. Dit is nie ‘n problem nie. Ek het klaar met
die prokureur gepraat. Hy sê, hy sê
ek moenie worry nie,
ek moet maar oorgaan, my ‘n international nommer kry, ek kan
hom bel, as ek iets hoor, die nie ‘n
problem nie, maar die
beste is laat Raymond wee tons weet nie, daar kan miskien ‘n
problem wees, ek weet nie wat dit is nie
. . . (tussenbei).”
[46] The content of these
conversations unequivocally establishes the falsity of accused no.’s
1 and 2’s versions that
they were not involved in the
transportation of the abalone. The conversation between accused no. 1
and accused no. 3 on the evening
of 7 January 2009 establishes not
only the truth of the
Janse van Rensburgs’
version of
events but gives the lie to their own contrived defence. At 20h51 on
7 January 2009, accused no. 1 telephoned accused
no. 3.
Notwithstanding the guarded and somewhat cryptic nature of the
conversation it is evident that it concerns the
Janse van
Rensburgs
and establishes that accused no. 3, as testified by
them, had been in contact with them earlier. This is fortified by the
content
of the conversation reproduced in paragraph [44] where
accused no. 1 informed
Marinda
that
Marthinus
and
Boetman
had been in Johannesburg. Their evidence that they
would alight from the truck close to the Mozambican border whereafter
accused
no. 3 would drive the truck is in fact confirmed by the
conversation between accused no. 3 and accused no. 1 that they would
meet
at a restaurant across the border in Mozambique. The remainder
of the conversation is concerned with abalone and their prospects
for
2010.
[47] It follows from the aforegoing
that accused no. 1’s evidence that he received a telephone call
from
Fabian
on the morning of 8 January 2009 wherein the
latter informed him that a truckload of his abalone was en route to
Mozambique and
requested that he keep a lookout for the truck is
clearly false. Accused no. 3’s evidence that accused no. 1 in
turn telephoned
him and conveyed
Fabian’s
request to him
is likewise contrived. The contention that the truckload of abalone
belonged to
Fabian
surfaced for the first time in accused no.
1’s evidence and was never put to either
Marthinus
or
Boetman
. What was put to
Marthinus
by Mr
Price
gives the lie to both accused no.’s 1 and 3’s version. Mr
Price
made the following assertion –
“
Wat
ek vir jou wil sê is, meneer, dat as ‘n mens kyk na die
omringende feite van hierdie saak – ek praat nou spe-sifiek
van
daardie twee trips Komatipoort toe – daardie perle-moen was
Raymond en (onduidelik) Janse van Vuuren se perlemoen. Dit
is gery
met die doel om geld te verdien sodat Peter Roberts terugbetaal kan
word. Dit was julle perlemoen; julle het dit ge”source”,

ons weet nie van wie af nie en julle, al wat jy doen is jy sleep mnr
Roberts in wanneer jy weet dis nie hy nie, dis iemand anders.
---
Edelagbare, as ek mag reghelp, waar moet ons geld gekry het om die
perlemoen te koop as ek in finansiële moeilikheid was.
HOF
U sê
dit is onwaar? --- Ekskuus Edelagbare?
U sê dit is
onwaar wat die stelling is? --- Dit is onwaar daai.
MNR PRICE
Ek
dink u verstaan my stelling verkeerd. Al wat ek vir jou probeer sê
is julle het wel die perlemoen aangery maar vir iemand
anders. Ek
weet nie dit was nie. Ons weet nie wie dit was nie. Daar is verskeie
grootbase tussen die perlemoen-mense in die Baai.
--- Soos u nou sê
ons het aangery vir iemand anderste maar hoe?
Ja. --- Mnr Peter
Roberts het ons dan gevra om te ry.”
The incongruity of the two (2)
diametrically opposing assertions made is, not only astounding but
moreover clearly establishes the
falsity of accused no.’s 1 and
3’s evidence. Furthermore the absence of any telephonic record
of this conversation
accentuates the untruthfulness of accused no. 1.
The suggestion made by Mr
Price
that this telephone call was
expunged from the transcript (exhibit “Z”) by the police
is nonsensical and devoid of
any substance – there was no such
phone call from accused no. 1 to accused no. 3 nor from
Fabian
to
accused no. 1.
[48] It is not in issue that the truck
referred to by the conversationalists in the preceding paragraphs had
been purchased at an
auction in East London on 13 November 2008,
ostensibly by
Raymond
. Payment of the purchase price was
however made electronically by accused no. 2 into the auctioneers’,
Rose Innes, banking
account on 13 November 2008. The case presented
on behalf of accused no.’s 1 and 2 was that, save for
accompanying
Raymond
to the auction and effecting payment of
the purchase price on his behalf, as an act of beneficence, they had
no direct interest
in the truck. On their version, the payment of the
purchase price was merely a loan to
Raymond
which had to be
repaid. The perjurious nature of that testimony is demonstrated by
the following – it is common cause that
at the time the truck
was impounded by the Scorpions on 9 January 2009, no repayments had
as yet been effected by
Raymond
.
[49]
Raymond’s
evidence
that accused no. 1 was the prime instigator in the purchase of the
truck was assailed on a number of bases. The criticism
directed at
his testimony is however, upon a holistic appraisal of the evidence,
totally unwarranted. Although
Raymond
was in certain respects
a single witness, there are sufficient safeguards to conclude that he
was a truthful witness. The documentary
evidence found in accused no.
1’s home during the search operation, coupled to the content of
the plethora of telephone conversations
concerning the truck,
establishes beyond any doubt, not only the true ownership of the
truck, but its intended purpose. During
Raymond’s
cross-examination it was put to him that accused no. 1 not only paid
for the truck as an act of beneficence to enable
Raymond
to
start a cartage business but that he was unaware that the roof had
been converted to conceal a false compartment. All three
(3)
Janse
van Rensburgs
testified that accused no. 1 was at their home when
they constructed the false roof and I have no doubt whatsoever that
accused
no. 1 purchased the truck for the sole purpose to illegally
transport abalone and oversaw the conversion of the roof. Exhibit
“KK”,
a letter written by accused no. 1, corroborates
Raymond’s
evidence that he was merely employed by
accused no. 1 as the driver of the vehicle. During
Raymond’s
cross-examination he was referred to exhibit “Z 25(b)” in
an attempt to show that he was the true owner of the truck.
An
objective analysis of the conversation however establishes the truth
of
Raymond’s
evidence that his public pronouncement that
he was the owner of the truck was merely a ruse perpetrated by
himself and accused
no. 1 to conceal the true ownership of the truck.
The conversation furthermore proves the falsity of accused no. 1’s
evidence
that he knew nothing about the alteration to the roof. In
fact the documents seized at his home refute any suggestion that
accused
no. 1 was not instrumental in deciding upon the construction
of the false roof. Notwithstanding objective corroboration for
Raymond
,
Marthinus
and
Boetman’s
testimony, their cross-examination was directed at establishing that
accused no. 1 was not aware that the truck was being used
to
transport the abalone to Mozambique.
Raymond
testified about
three (3) trips whilst
Marthinus
and
Boetman
merely
referred to two (2) trips. It is clear from
Raymond’s
evidence that all three (3) trips were done on the express
instructions of accused no. 1 and with the knowledge of accused no.’s

2 and 3. The telephone transcripts constitute irrefutable proof of
the truthfulness of the
Janse van Rensburg
trio.
[50] It is not in dispute that
Raymond
obtained a passport from the Department of Home Affairs on 13
November 2008. He testified that he required the passport in order
to
travel to Mozambique to convey a load of abalone for accused no. 1.
Accused no. 1 of course denied any knowledge of the trip
but that
denial is, given the objective facts, contrived.
Raymond’s
evidence that he had been instructed to have the truck in pristine
condition for the trip to Mozambique in fact finds corroboration
from
accused no. 1 himself. In the phone call to
Raymond
at
10:02:50 on 15 December 2008 accused no. 1 instructs
Raymond
to clean and polish the truck and to check if everything was in
order. During the conversation
Raymond
appraised him that he
had obtained his passport. The immediate question is why would
Raymond
have mentioned this to accused no. 1. The answer is
obvious, as appears from the further conversation the next day.
[51] On the morning of 16 December
2008 (08:45:55),
Raymond
telephoned accused no. 1’s cell
phone which was answered by accused no. 2. After a short exchange
between them
Raymond
asked to speak to accused no. 1 and a
conversation about the truck ensues during which accused no. 1
instructs
Raymond
to overnight at his home that night in order
to be well rested for his journey. At 09:54:24
Raymond
once
more telephoned accused no. 1 during which he appraised him that
another truck was being loaded and his truck would then be
loaded.
Raymond
testified that he took the truck to a farm in
Greenbushes pointed out to him by accused no. 1 where the abalone was
loaded into
the truck. Early the next morning, at 02:25:58 accused
no. 1 telephoned accused no. 2 and informed her that he was at the
farm
with a certain “Uncle
Mike
”, that they were
almost done and that he was bringing
Raymond
home to sleep.
[52]
Raymond’s
narrative
continued as follows - after the truck was loaded at the farm he
drove it to accused no. 3’s home in Westering
where it was
parked and accused no. 1 who had followed him, picked him up and they
then drove to his home where he overnighted.
The next morning, 18
December 2008, accused no. 3 fetched him from accused no. 1’s
home and returned to his home where he
handed him R5000. 00 of the
R10 000.00 he had received from accused no. 1 for their
expenses. On arrival at accused no. 3’s
home he encountered an
elderly gentleman whom he was told would drive with him to
Komatipoort. They left Port Elizabeth, the lead
car being driven by
accused no. 3 accompanied by an unidentified passenger. They
overnighted at Kroonstad, left the following morning
and, en route to
Maputo, stopped at Nelspruit where the old man was booked into a Road
Lodge as he did not have a passport to enter
Mozambique.
[53] Accused no. 3 in the lead vehicle
did not however accompany
Raymond
to Maputo but turned back at
Komatipoort on the understanding that they would meet the next day at
O’Hagan’s restaurant
in Nelspruit.
Raymond
duly
proceeded to Maputo where he met up with a certain
Dave
and
his companion and the next day delivered the abalone to a house in
Maputo together with
Dave
.
Raymond
adverted to the
circumstances under which accused no. 3 went to Johannesburg where he
met the buyers and where payment of the abalone
was effected before
returning to Nelspruit where he met accused no. 3 at the O’Hagans.
He further testified that he had to
replace one (1) of the truck’s
tyres in Nelspruit and, short of money, received some from accused
no. 3 to purchase the tyre
at Maxiprest in Nelspruit. During the
search of accused no. 1’s premises on 12 January 2009 the
receipt from Maxiprest exhibit
“F18.6” was found in the
study.
Raymond
testified that he handed the receipt to accused
no. 1 at his home on 20 December 2008 after returning from
Mozambique. The Maxiprest
invoice was one of a substantial number of
documents found in a brown envelope in accused no. 1’s study
during the search
of their home and I accept his evidence that he
handed all the documents to either accused no. 1 or accused no. 2.
The corollary
of this finding is that accused no. 1 and accused no.
2’s evidence that
Raymond
inadvertently left the
documents in their home because he resided there is false.
[54] The next chapter in
Raymond’s
narrative relates to the second (2
nd
) trip to Maputo,
summarised as follows – On 22 December 2008 accused no. 1
informed
Raymond
to take the truck to the farm in Greenbushes
where, on arrival he met accused no. 3, his brother and a labourer.
The abalone was
weighed, packed into the concealed roof and the roof
closed and once more sealed.
Raymond
drove the truck to
accused no. 3’s premises where it was parked and he slept at
accused no. 1’s home that night. The
telephonic conversations
between accused no. 1 and
Raymond
conclusively establish the
truth of
Raymond’s
narrative. At 13:06:14 on 22 December
2008 accused no. 1 telephoned Raymond. The conversation related to
the roadworthiness of
the truck at the Post Office. One (1) of the
documents found in the truck during the search near the border is a
receipt for a
special roadworthy permit issued by the Post Office on
22 December 2008.
[55] At 15:28:24 the same day accused
no. 1 again telephoned
Raymond
. The import of the conversation
once more pertained to the truck and concludes with accused no. 1
telling
Raymond
to take the truck because the goods would be
ready at 8 or 9 p.m. and he was to park the vehicle as before and
sleep over at his
place. On enquiry whether
Marthinus
and
Boetman
should also sleep over, accused no. 1’s response
was that they would discuss it later.
[56] At 16:20:32 accused no. 1 again
telephoned
Raymond
and discussed the licence for the truck.
The conversation concluded by
Raymond
telling accused no. 1
that he was en route to his home.
Raymond’s
evidence
dovetails with the content of the telephonic conversations. He drove
the truck to Greenbushes where it was loaded and
he then drove it to
accused no. 3’s home where it was parked before proceeding to
accused no. 1’s home where he overnighted.
At 07:39:20 on 24
December 2008
Marthinus
telephoned accused no. 1 and enquired
whether
Raymond
was asleep. Accused no. 1 responded in the
affirmative telling
Marthinus
that they had worked late into
the night. Accused no. 1 then enquired whether they were ready and
emphasized that
Raymond
had not had much sleep. At 14:02:41
that afternoon accused no. 1 received a call from
Deon de Villiers
(
Divvy
). The import of the conversation plainly and
objectively construed clearly has reference to abalone, and not fish,
as contended
for by accused no. 1.
[57] The evidence establishes that on
the morning of 24 December 2008 accused no. 3 fetched
Raymond
from accused no. 1’s home and proceeded to
Raymond’s
grandmother’s home in Kensington where
Marthinus
and
Boetman
were picked up. They then proceeded to accused no. 3’s
home were the truck was collected which
Raymond
drove with
Boetman
as his passenger. Accused no. 3 and
Marthinus
were in the lead car and they drove in convoy straight through to
Nelspruit and thence to Komatipoort where they stopped at the
Sasol
garage at the intersection. Accused no. 3 left them and went with
Marthinus
to make a reservation at the Border Country Inn
Hotel and returned alone. On his return
Raymond
handed the
keys of the truck to
Dave
whom they had encountered as they
entered the garage and accused no. 3 dropped him and
Boetman
at the hotel. Later that evening,
Dave
telephoned
Raymond
saying that he was outside the hotel with the truck.
Raymond
went outside, collected the keys from
Dave
and parked it in
the hotel’s parking area. It is evident from exhibit “HH”
the hotel’s vehicle register
that the security guard recorded
that the truck entered the parking area at 21h20 on 24 December 2008.
This confirms
Raymond’s
evidence.
[58] Early the next morning,
Raymond
,
Marthinus
and
Boetman
drove
from the hotel to Johannesburg. They met accused no. 3 at one of the
Southern Sun hotels and he instructed them to book into
a Formula One
Hotel and meet him at an Engen garage which he identified to
Raymond
.
At the appointed hour the next day, the
Janse
van Rensburgs
met up with
accused no. 3 who handed
Raymond
the sum of R40 000.00 with
instructions that they utilise R2 500.00 to cover their expenses
to Port Elizabeth and hand
deliver the balance to accused no. 2 on
their arrival.
[59] Exhibit “Z12(a)”
reveals that at 17:30:19 on 25 December 2008, accused no. 1
telephoned
Marthinus
and brusquely demanded answers. The
conversation clearly has reference to abalone.
Marthinus
informed accused no. 1 that accused
no. 3 had intimated that he would have to remain in Johannesburg for
three (3) or four (4) days.
Accused no. 1 acquiesced and instructed
Marthinus
that
they should return to Port Elizabeth. It is apparent from the
conversation that the buyers had expressed reservations about
the
quality of the abalone and demanded that it be collected. Accused no.
1 then suggested that
Marthinus
and
Boetman
should return to Port Elizabeth in a
motor vehicle.
[60] Notwithstanding the aforegoing
instruction,
Raymond
,
Marthinus
and
Boetman
however
returned to Port Elizabeth during the afternoon of 26 December 2008.
Raymond
testified
that he went to accused no. 1’s home on 27 December 2008 and
handed her various receipts and the money he received
from accused
no. 3. The telephone records corroborate
Raymond’s
evidence that he went to accused no.
2’s home. At 12:32:35 on 27 December 2008
Raymond
telephoned accused no. 1. During the
conversation accused no. 1 expressed a desire to replace the truck’s
existing engine
with a turbo diesel engine and a large part of the
discussion related to improving the performance of the truck.
Raymond
intimated that he had just returned
from his i.e. accused no. 1’s home where he had left what he
referred to as the “expense
money”. Accused no. 1 then
informed
Raymond
that accused no. 3 was still in
Johannesburg awaiting payment and only when the abalone was properly
prepared on the other side
(
oorkant
)
would accused no. 3 receive payment.
[61] At 16:01:21 on 28 December 2008
accused no. 3 telephone accused no. 1 and the two (2) of them
conversed about the problems
encountered with the abalone, the drop
in prices and concluded with accused no. 3 informing accused no. 1
that the total weight
was 548.75 kilogram. In their testimony both
accused no. 1 and accused no. 3 suggested that their recorded
conversation was confusing
but merely related to fish. Their
untruthfulness knows no bounds.
[62] Accused no. 3 telephoned accused
no. 1 at 18:17:31 on 29 December 2008 and
inter alia
informed
him that he had his money,
Fabian’s
money and the old
man’s money. The further conversation clearly has reference to
a further load of abalone to be transported
across the border.
Accused no. 3 then asked accused no. 1 whether he should take a
friend or the old man. This is a clear reference
to accused no. 4 and
Marthinus
as subsequent events prove. A discussion then ensued
concerning the condition of the abalone and accused no. 3 tentatively
suggested
that it would be blow dried and would be ready for
transportation in two (2) days’ time. Accused no. 1 then
advised accused
no. 3 that the abalone should be loosely packed in
the truck (a fact confirmed when the truck was searched by the police
and the
abalone found loosely packed in the concealed compartment).
Accused no. 1 then instructed accused no. 3 on the
modus operandi
to cross the border, to return and go to Johannesburg whilst
Marthinus
and
Boetman
were to drive to Port Elizabeth.
[63]
Raymond’s
sudden and unexpected departure to
Durban to see his wife and child infuriated accused no. 1. In a
conversation with accused no.
3 at 09:06:04 on 31 December 2008 he
expressed his disgust at
Raymond’s
decision to visit his wife. I
interpolate to say that
Raymond’s
immediate departure created a myriad
of problems for accused no. 1, the primary one being who would drive
the truck to Mozambique.
Accused no. 1 thus solicited
Marthinus
and
Boetman’s
assistance to solve his problem. They
would drive to Mozambique.
Marthinus
testified that accused no. 1
telephoned him and asked him to tell
Boetman
to drive the truck to be loaded. The
telephone conversations between
Marthinus
,
Boetman
and
accused no.1 and accused no. 2 thereafter fully corroborates both
Marthinus
and
Boetman’s
evidence that the load of abalone
being transported to Mozambique belonged to accused no. 1.
[64]
Marthinus
and
Boetman
testified to events spanning several
years. Both of them were unsophisticated witnesses and their evidence
was not without blemish.
Both however impressed me as honest
witnesses and I have no reason to doubt their veracity. In an attempt
to impugn
Marthinus’
integrity Mr
Price
attempted to cross-examine him on a
statement made by him which he handed to his attorney at the time, Mr
Griebenow
.
I disallowed cross-examination on the statement on the basis that the
statement was a privileged communication between
Marthinus
and Mr
Griebenow
relating, as it did, to the criminal
prosecution of the accused and
Marthinus
and
Boetman
.
In argument however, Mr
Price
stated that
“
it
was his (
Marthinus’
)
decision to find Mr
Griebenow
,
not the other way around”
.
[65] The telephonic conversation
between accused no. 1 and
Marthinus’
wife
Marinda
at 11:30:16 on 9 January 2009 exemplifies, not only the accuseds’
untruthfulness but negates the submission made by Mr
Price
that Mr
Griebenow’s
services were elicited by
Marthinus
.
The conversation records that even prior to his own arrest accused
no. 1 had contacted Mr
Griebenow
and enlisted his services to
secure the release on bail of
Marthinus
,
Boetman
,
accused no.’s 3 and 4. The submission made by counsel is
therefore not only misleading, but fatuous.
[66] I have no hesitation in accepting
Marthinus
and
Boetman’s
evidence that they
conveyed the load of abalone on the instructions of accused no. 1 and
that accused no.’s 2, 3 and 4 were
not only privy to the
machinations of accused no. 1 but intimately involved in the
transportation of the load of abalone to Mozambique.
[67] The fateful next load of abalone
was in fact only transported from Port Elizabeth on the 7
th
of January 2009. The vehicle was stopped close to the Mozambican
border post by the police on 8 January 2009. In the cabin the
police
found a cordless drill which
Boetman
in due course used to
open the concealed compartment in the roof. The circumstances in
which the drill came to be in the truck
formed the subject matter of
a conversation between accused no’s 1, 2 and
Boetman
on
30 December 2008. During the early evening
Boetman
telephoned
accused no. 1, the call being answered by accused no. 2 who informed
him that accused no. 1 had gone to her sister’s
home.
Boetman
then requested her to ask accused no. 1 to charge accused no. 3’s
drill. Shortly thereafter accused no. 2 asked accused no.
3 where the
charger was and asked him to bring it to accused no. 1 because he
would need to charge it. Accused no. 3 then indicated
that he would
charge the drill and bring it the next day.
[68] The scheduled departure of the
abalone was however forestalled because of
Raymond’s
decision to go to Durban to visit his
estranged wife. On the morning of 31 December 2008 accused no. 3
called accused no. 1 bemoaning
Raymond’s
decision.
Raymond’s
one redeeming feature was of course
acknowledged because
Raymond
had, as he himself testified, had the
planks cut to size to facilitate the packing of the loose abalone
into the roof of the truck.
This became the subject matter of the
conversation between accused no. 1 and
Marthinus
during that early evening.
Marthinus’
evidence is confirmed by the
transcript. The trip had been scheduled for Friday, the 2
nd
of January and
Marthinus
confirmed that the truck’s roof
had been properly sealed, painted and the planks installed.
[69] On the evening of 1 January 2009,
accused no. 1 telephoned
Divvy
and after confirming that the goods
would be ready the following day, once more complained that
Raymond
(
die
laaitie
) was
away but that arrangements had been made for one
Bruce
to accompany accused no. 3. This
reference to
“
Bruce”
can only refer to accused no. 4.
Accused no. 1 further informed him that
Raymond’s
brother, i.e.
Boetman
,
would be accompanying his father, i.e.
Marthinus
.
The lead vehicle would be driven by accused no. 3 accompanied by
accused no. 4. He was further informed that
Bruce
had a passport and that accused no. 4
would drive his motor vehicle over the border and accused no. 3 the
truck.
Marthinus
and
Boetman
would stay at the hotel the night.
After a further conversation about the weight and quality of the
abalone accused no. 1 confirmed,
as testified to by the
Janse
van Rensburg
trio, that the
false compartment in the roof of the truck had been converted to
resemble a scoop and could hold about seven hundred
(700) kilograms.
The further significance of this telephone call is the admission by
accused no. 1 that accused no. 2 had intimate
knowledge about his
financial affairs.
[70] The preparations for the trip
continued and during the morning of 2 January accused no. 1
telephoned accused no. 3 and informed
him that
Marthinus
and
Boetman
were in Kensington and that he had to obtain the
temporary licence for the truck. The latter licence was in fact found
in the truck
and the circumstance in which it was obtained was
adverted to by both
Marthinus
and
Boetman
. Accused no.
1 furthermore informed accused no. 3 that as
Marthinus’
telephone had his number on it, it could be problematic; he had to
leave the phone at home and buy a new phone. Later that morning

accused no. 1 telephoned
Marthinus
and enquired whether they
were ready and when he affirmed told him to wait for accused no. 3
and follow him to the post office
to have the licence sorted out.
Marthinus’
evidence mirrors the telephone call. The
temporary licence for the truck was in fact obtained from the post
office, valid for the
period 6 January 2009 until 26 January 2009.
Boetman
was instructed to go to the place where the goods were
to be loaded and this was in fact confirmed by him in his testimony.
[71] The rest of the day’s
conversations concerned the trip. Accused no. 1 instructed
Marthinus
to remove the squid (tjokka) bags from the truck to avoid any
problems, and to tell
Boetman
to load the truck later that
night. Nothing of any moment appears to have occurred on the 3
rd
of January 2009. Problems arose with the abalone and the anticipated
departure date passed. The reasons were adverted to in the
telephonic
conversations between accused no. 1 and
Boetman
on 5 January
2009.
Boetman
informed accused no. 1 that the truck was
encountering problems. Accused no. 1 instructed him to take the truck
to a certain
Bezuidenhout
in Green Street to sort out the
problem. Both
Marthinus
and
Boetman
in fact confirmed
that the truck was taken to
Bezuidenhout
for repairs.
[72] Shortly thereafter accused no. 3
telephoned accused no. 1 and enquired whether
Marthinus
had
telephoned him. He replied in the affirmative. A few hours later
Boetman
called accused no. 1 to report that the problem with
the truck had been resolved, that he was on his way to obtain the
engine clearance
and that
Marthinus
, wanted to speak to him.
Marthinus
informed him that he could not get the engine
clearance certificate because of a system failure. He was informed to
go and see
their contact and if he still could not obtain the licence
to contact accused no. 3 to sort out the problem.
Marthinus
was furthermore reminded to purchase a tin of paint to conceal
whatever needed to be concealed.
[73] At 16:16:58 accused no. 1
received a call from Uncle
Mike
. From the cryptic nature of
the conversation it is obvious that it relates to abalone. The
conversation concerned the dry abalone
which had been crated and
weighed and the rest was in the process of drying. Two hundred and
twenty eight (228) kilograms were
available immediately and the rest
would be ready in twenty-four (24) hours time. A minute later accused
no. 1 telephoned Uncle
Mike
and after a complaint about money,
told him that he would be leaving the next day. The rest of the
conversation clearly concerns
a further consignment of abalone for
which
Mike
was to arrange a storage place for. The
conversation then shifts to the packing of the truck, the fact that
the problems had been
resolved and that accused no. 3 and
Marthinus
would be ready. They were to rest the next day and leave the
following day. The evidence adduced regarding the documentation found

in the truck establishes that the truck in fact left Port Elizabeth
on 7 January 2009, as per the arrangements foreshadowed in
the
conversation between accused no. 1 and
Mike
.
[74] On the morning of 7 January 2009,
accused no. 1 telephoned
Marthinus
and told him that the
consignment was on schedule and that he should speak to accused no. 3
to get the clearance for the truck.
Marthinus
responded by
saying that he had telephoned but was informed that the computers
were still offline. In response accused no. 1 asked
him to see
whether he could not obtain a clearance or a temporary permit. If
that was not possible, the officials must supply accused
no. 3 with a
letter to the effect that the system was offline. The conversation
then shifted to a prospective storeroom between
Addo and Coega for
future use. About half an hour later accused no. 1 once more
telephoned
Marthinus
during the course of which he informed
him that even if the abalone was not properly prepared he should
nonetheless load it and
he would sort out whatever problem would
arise later on. A further discussion then ensued concerning a certain
Mr
Dobson’s
abalone, and future dealings in abalone.
The case against Accused no. 3
and Accused no. 4
[75] Both accused no.’s 3 and 4
testified that they intended to spend a holiday in Mozambique
together with accused no. 1
and his family. By prior arrangement
accused no. 3 and accused no. 4 left in a Mercedes Benz owned by
accused no. 1 on the 6
th
of January 2009 and overnighted
in Johannesburg with the intention to meet accused no. 1 and his
family at the airport on the 7
th
of January 2009 and ferry
them to the rental company where accused no. 1 was to collect a
recreational vehicle (RV). He testified
that he left accused no. 4 at
the hotel and duly proceeded to the airport to meet accused no. 1 and
his family and took them to
the RV hire company where he left them
and returned to the hotel.
[76] The accuseds’ evidence that
they left Port Elizabeth on the 6
th
of January 2009 is
patently untrue. It is clear from
Marthinus
and
Boetman’s
evidence that they proceeded in convoy from Port Elizabeth during the
early hours of 7 January 2009. Accused no. 3 and accused
no. 4 both
tailored their evidence to correspond with accused no.’s 1 and
2’s evidence that he collected them at the
airport on 7 January
2009. The telephone conversation between accused no.’s 1 and 3
during the evening of 7 January 2009
establishes the falsity of their
testimony.
[77] Accused no.
3’s evidence that he received a telephone call from accused no.
1 during the morning of 8 January 2009 is
likewise contrived. During
his examination in chief
he was pointedly asked whether he had
heard from accused no. 1 the next day. The questioning proceeded as
follows –
“
Did
you hear from accused no. 1 at all that day? That is now the morning
of 8 January 2009. --- Well I received a call from him
during the
course of the morning, probably about I would say ten/half-past-ten,
and then he asked me to have a lookout for Raymond’s
truck.
Did he say Raymond’s
truck? --- He said Raymond’s truck, because he apparently got a
call from Fabian stating that they
were up there doing some business
and riding abalone obviously, and then I still told him no I will
keep a lookout, but I mean
I do not want to get too much involved
with that.
That was a conversation
between you and accused no. 1? --- Accused no. 1.
What phone did you
phone him on? --- My contract phone.
Not yours. His. What
phone did you phone him on? Or rather what number did you phone of
his? --- It would have been a contract phone.
You are well known to
the family? --- That is correct.
Do you have Shelby’s
number? --- Yes, I did.
Now can you recall, I
know it is a long time ago, can you recall more or less where you
were when you got this call? --- We were
en route from Johannesburg
towards Komatipoort.
That is that N12
Witbank/Middelburg (intervention) --- That is the petrol station
where you go and you get your insurance to go
across the border.
Ja, but that is in
Komatipoort. --- That is correct.
But the road is the N12
Witbank/Middelburg/Nelspruit, that way? --- That is the road yes.”
[78] That line of questioning was
followed by a further leading question relating to other telephonic
conversations between himself
and accused no. 1 after he and accused
no. 4 left the Sasol petrol station at the intersection. The
underlying strategy is not
difficult to discern. The anticipated
answers from accused no. 3 that he in fact spoke to accused no. 1 on
two (2) occasions on
8 January 2009 served not only to corroborate
accused no. 1’s evidence that he used his contract cell phone
on each such
occasion but moreover to cast doubt on the reliability
of the intercepted phone call records, exhibit “Z” and
the evidence
of
Strydom
. The latter’s evidence is, as I
have emphasized hereinbefore, above reproach. The defence had access
to the compact discs
from which the telephone calls were transcribed
and there can be no doubt that the evidence of both accused no. 1 and
accused no.
3 that they spoke to each other on accused no. 1’s
contract cell phone during the course of 8 January 2009 is contrived.
[79] There was no suggestion made by
either Mr
Price
or Mr
Griebenow
during their
cross-examination of
Strydom
that such calls were in fact
made. On the contrary, during the state case, the impression was
sought to be created that accused
no. 1 and accused no. 3, save for
the telephonic contact evidenced by exhibit “Z” on the
evening of 7 January 2009,
had had no contact whatsoever. Mr
Griebenow
in fact pertinently put to
Smith
that accused
no. 3 would deny having mentioned that he was going on holiday to
Mozambique with a certain
Peter
. That denial could obviously
not gel with the version put up by accused no. 1 during his testimony
and it is no doubt for this
reason that Mr
Price
led accused
no. 3 to say that what was put by Mr
Griebenow
was contrary to
the instructions which he, i.e. accused no. 3 gave to Mr
Griebenow
.
[80] Accused no. 3 and accused no. 4
were integral to the transportation of the abalone to Mozambique.
Much was made in cross-examination
of the apparent conflict between
the recorded conversation of accused no. 1 and
Divvy
during
the course of which accused no. 1 told him that accused no. 3 would
be driving in front together with one
Bruce
. That tittle of
evidence was relied upon to show that the reference therein to “
Jono
and
Bruce
” could not have been a reference to accused
no. 3 and accused no. 4 given the common cause fact that they were
apprehended
at the roadblock in the white Mercedes Benz.
[81] The truth of the matter is that
the transcript records a conversation concerning the Mercedes. The
cross-examination proceeded
as follows –
“
Kom
ek help u. Ons gaan kyk na *Z6*. Ja *Z6A*. Bladsy 3. Die 1ste
Januarie 2009, heel onder. Para. 4 reël 24: mansstem “En

Jono gaan voor ry in sy bakkie saam met ‘n ander ou, Bruce”.
--- Ja wel daarna in ‘n gesprek waar hulle melding
maak
(tussenbei)
Praat oor die huur van
‘n Mercedes. --- Die Mercedes wat gebruik word en dan die
vroumens moet R12.000,00 betaal word vir
die huur van die Mercedes.
Vir die huur van die
Mercedes. Maar daar word nêrens in enige gesprek gesê dat
die Mercedes ‘n voorkar sou wees
nie. --- Daar word nie direk
gesê ons gaan perlemoen vat en ons gaan dit met dit doen nie.
Soos ek sê dit hang baie
af van interpretasie van wat gesê
word.”
[82] Reference to a Mercedes Benz
appears from a conversation between accused no. 1 and
Marthinus
at 11:26:36 on 6 January 2009. It is apparent from these recordings
and
Strydom’s
evidence that he correctly deduced that
the front car would be a Mercedes Benz driven by accused no. 3,
accompanied by one
Bruce
. It is clear from
Smith’s
evidence that the source of his information was
Strydom
. The
latter had appraised him that a truck load of abalone destined for
Mozambique would pass through Gauteng and Mpumalanga. The

registration number of the truck was given as BZH 945 EC and it would
be accompanied by another vehicle driven by two (2) white
males
bearing EC number plates and a motor home driven by a white man
accompanied by his wife and children.
[83] Armed with this information a
task force was assembled at the Nkomazi tollgate at Kaapmuiden where
members of the South African
Police Services had of their own accord
set up a roadblock. The team was divided into shifts and commenced
observations at 18h00
on 7 January 2009. The next morning
Smith
was informed that the truck had left Johannesburg at 6 a.m. and
deduced that it would arrive at the tollgate between 12 noon to
1
p.m. The information relayed to
Smith
that the truck would
leave Johannesburg at 6 a.m. appears clearly from the conversations
between accused no. 1 and accused no.
3 on the evening of 7 January
2009. Although both accused no. 1 and accused no. 3 not only
denounced the conversation recorded
in exhibit “Z (1) (a)”
as unreliable and its context somewhat perplexing, their attitude is
understandable given the
incriminating features of their
conversation. Firstly, it is in direct conflict with both accused no.
1 and accused no. 3’s
evidence that accused no. 3 picked him
and his family up at the airport. The gist of the conversation leaves
no room for any suggestion
that accused no. 3 picked up accused no. 1
at the airport and ferried him to the place where the RV was
collected. Secondly, it
shows direct knowledge of
Marthinus
and
Boetman’s
whereabouts and that of the truck.
[84]
Smith
of course was not
privy to all the aforementioned conversations. His information was
limited to those facts set in the beginning
of the preceding
paragraph. Acting on that information he left the roadblock at
approximately 12 noon and proceeded in the direction
of Nelspruit. En
route he passed an oncoming white Mercedes Benz bearing Eastern Cape
(EC) registration plates. Approximately five
(5) or six (6) minutes
later he encountered the truck, passed it, and at, an opportune
moment, made a u-turn and followed the truck
whilst his companion,
Kurt Heydenryck (Heydenryck)
photographed it (exhibit “F1-5”).
Whilst trailing the truck
Smith
contacted his fellow team
members at the roadblock and instructed them to allow the truck to
pass unhindered, and thereafter contacted
Pieter Willem van
Heerden
(
van Heerden
) at Komatipoort and instructed him to
be on the look-out for the Mercedes Benz.
[85] Mr
Luvuyo Mfaku
(
Mfaku
)
and a Mr
Pillay
were instructed to look out for the Mercedes
Benz and proceeded to the Sasol petrol station where they observed
the vehicle parked.
Two (2) white males were in close proximity to
the vehicle, one (1) of whom was seated and eating a mango and the
other standing
a few paces from him.
Mfaku
observed the truck
passing the garage and saw one (1) of the two (2) men who was
standing near the vehicle gesturing to the driver
of the truck to
pass. The latter stopped at the intersection but proceeded onwards
whilst the bald headed person moved closer to
the road in the
direction of the truck and turned back to the vehicle whereafter he
and his companion drove off in the direction
of Malelane.
Mfaku
identified the occupants of the vehicle as accused no. 3 and accused
no. 4.
[86] Whilst accused no.’s. 3 and
4 admitted being at the Sasol garage, accused no. 4 denied walking up
the embankment or making
a gesture to the driver of the truck.
Mfaku’s
evidence hereanent finds corroboration from
disparate sources, from
Marthinus
and the content of certain
telephone calls. I have hereinbefore adverted that in the
conversation between accused no. 1 and
Divvy
the
modus
operandi
to transport the abalone across the border had been
revealed. – It clearly established that accused no. 3 would
drive the
truck and accused no. 4 the Mercedes across the border
whilst the
Janse van Rensburgs
would remain at the hotel in
Komatipoort and await the arrival of accused no. 3 with the truck.
[87]
Marthinus
corroborated
Mfaku’s
evidence that as he passed the garage he noticed
accused no. 4 gesturing to him. He testified that he inadvertently
drove past
the garage and intended to make a u-turn and return to the
garage where the preordained meeting between himself and accused no’s

3 and 4 was scheduled to take place. The truthfulness of
Marthinus’
evidence is underscored by the fact that
Smith
in fact saw the
truck moving off the road in close proximity to the garage. This
manoeuvre was necessary to effect the u-turn and
return to the
garage.
Mfaku
and
Marthinus’
evidence establishes
that accused no. 4 was an integral part of the transportation of the
abalone to Mozambique.
[88] Accused no. 3’s evidence
that he decided to return along the road whence they had travelled in
order to locate an ATM
at the nearest town, is in keeping with the
rest of his evidence, false. It is clear that he took fright when he
observed the police
intercepting the truck and was in the process of
fleeing the scene until he was apprehended at the roadblock.
[89] The telephone conversation
between accused no. 2 and accused no. 3’s wife during the
morning of 9 January 2009 likewise
conclusively establishes the
falsity of accused no’s 3 and 4’s evidence. It was
suggested to both accused no. 2 and
accused no. 3 during their
examination in chief that the absence of any record in exhibit “Z”
confirming the existence
a telephone call between accused no. 3 and
accused no. 1 during the morning of 9 January 2009 established that
the police suppressed
such evidence. Both the suggestion and the
accused’s adoption thereof is not only fanciful but
nonsensical. It is obvious
that accused no. 1 and accused no. 3 had a
telephonic conversation immediately after the police surrounded the
truck. The probabilities
are that the conversation was one via the
cell phone destroyed by accused no. 3 in the cell and a cell phone to
which accused no.
1 had access to, viz his children’s. I accept
Marthinus’
evidence that accused no. 3 smashed a cell
phone in the cell – there was nothing to gain from
manufacturing that tittle of
evidence.
[90] It is obvious that the search of
the Mercedes at the police station was not a thorough one and that
accused no. 3 returned
to the vehicle where he retrieved the cell
phone which he destroyed in the cell. The discovery of the drill bit
(exhibit “F17(5)”)
in the Mercedes Benz following the
arrest of accused no.’s 3 and 4 was refuted by them. On their
version the police must
have obtained it elsewhere and perjured
themselves by testifying that it was found in the Mercedes. The
accuseds’ denial,
though patently false, is of course readily
understandable. The rivets in the concealed compartment in the truck
could only be
removed with the aid of a drill as in fact occurred
following the purchase of a drill bit in Komatipoort following the
accuseds’
arrest. The telephone conversations identified
accused no.’s 3 and 4 as the persons who would have crossed the
border into
Mozambique and the drill bit would have had to be used to
removed the rivets from the concealed compartment.
[91] The alleged confusion which the
conversation between accused no. 2 and accused no. 3’s wife
appears to have engendered
in accused no.’s 1, 2 and 3 is
nothing more than a subterfuge. There is nothing perplexing about the
conversation. It is
a factual account of an abortive operation to
transport abalone to Mozambique. The information conveyed to her by
accused no. 2
was to the following effect – Accused no.’s
3 and 4 were virtually at the border when they saw the truck being
stopped
and the occupants ordered to alight. Accused no. 3 was at the
service station as per the arrangement made to meet there and took

flight. The arrangement that accused no. 3 would drive the truck
across the border formed part of the subject matter during the

conversation between accused no. 1 and
Marthinus’
wife
at 11:30:16 on the morning of 9 January 2009, a few hours after the
conversation between accused no. 3’s wife and accused
no. 2.
Therein accused no. 1 advised the former that they were almost at the
border where the truck was stopped and he wanted to
get away as fast
as possible. The content of these conversations refutes any
suggestion that accused no.’s 3 and 4 were merely
en route to
holiday in Mozambique. In fact, as the phone records indicate,
accused no. 3 was integral to the entire operation and
both he and
accused no. 4’s protestations of innocence are completely
false. They were, as I have previously stated, integral
to the
operation.
[92] The eighth (8
th
) and
tenth (10
th
) racketeering activity is attributed to
accused no.’s 1, 2, 3 and 4 whilst the ninth (9
th
)
merely to accused no.’s 1, 2 and 3. Each of these activities
relate to the transportation of the abalone to Mozambique by
the
Janse van Rensburgs
. As adumbrated hereinbefore, not only were
they honest and reliable witnesses but their evidence was
corroborated by the contents
of exhibit “Z”, the
telephone records.
[93] Although Mr
Le Roux
conceded that accused no. 5 would be entitled to his acquittal on
count four (4), Stevens’ evidence details his involvement
and I
am satisfied that it was not merely peripheral but that he was
directly involved in this activity. His conviction on the
seventh
(7
th
) listed activity thus establishes his involvement in
two (2) or more offences as envisaged by the
POCA
.
[94] The evidence adduced, and which I
have hitherto analyzed, establishes that – (i) accused no.’s
1 and 2 were directly
involved in all but the sixth (6
th
)
listed activity, (ii) accused no. 3 was directly involved in the
fifth (5
th
), seventh (7
th
), eighth (8
th
),
ninth (9
th
) and tenth (10
th
) activities, and
(iii) accused no. 5 was directly involved in the fifth (5
th
)
and seventh (7
th
) activities. Each of the aforegoing
activities, over a period of several years, unequivocally establishes
a pattern of racketeering
activity as defined in section 1 of
POCA
.
The evidence furthermore proves that accused no.’s 1 and 2
managed the enterprise as envisaged by section 2 (1) (f) of the
POCA
.
The Search of accused no. 1’s
home on 12 January 2009
[95] The attack on the legality of the
search is of course directed at suppressing the documentation found
in the study at accused
no. 1’s home, exhibit “F18”
(1-26). It is common cause that
Smith
and
Strydom
,
alerted to the fact that accused no. 2 was en route to her home in
Port Elizabeth from Johannesburg hastened there to conduct
a search.
It is common cause that the search was one conducted without a
warrant and I accept
Smith’s
evidence that the delay in
obtaining a warrant would have frustrated the very purpose of the
search. Notwithstanding the aforegoing
authority,
Smith
, in
addition, requested accused no. 2’s permission to search the
premises. Accused no. 2 of course denied having consented
to the
search. Her denial is, in conformity with the rest of her evidence,
clearly false and I accept
Smith’s
evidence that she
consented thereto.
[96] It is furthermore common cause
that her attorney (Mr
Ryno Scholtz
(
Scholtz
)) came to
her home shortly after the arrival of
Smith
and his coterie of
policemen. In her testimony, accused no. 2 stated that
Scholtz
left prior to the search being concluded but that tittle of evidence
too seems highly improbable. She signed the inventory of
documentation seized from the premises (exhibit “G”) from
which it is apparent that she consented to the search. The

submissions made concerning the legality of the search are entirely
spurious. It was moreover pertinently put that
Scholtz
would
testify that he requested
Smith
to cease the search but that
evidence was never tendered. The inference may thus legitimately be
drawn that
Scholtz
declined to be party to accused no. 2’s
deceitfulness.
Conclusion
[97] The evidence to which I have
adverted to hereinbefore conclusively establishes beyond any doubt
the falsity of the versions
proffered by the various accused and I
reject their evidence in its totality. The weight of the evidence
proves their direct involvement
in the offences charged. Before I
conclude this judgment however it is necessary to state the
following. In argument and during
cross-examination of various of the
police witnesses, the integrity, not only of the entire police
investigation but moreover of
several of the witnesses involved in
Operation May was impugned. There is no merit whatsoever in any of
these imputations. The
evidence shows that the investigations were
conducted in a scrupulously fair manner and is beyond reproach. The
investigators are
to be commended for their sterling efforts in
combating the scourge of abalone poaching in the Eastern Cape.
The verdict
[98] Accused no. 1 is convicted on
counts 1, 2, 3, 4, 6, 7, 8 and 9.
Accused no. 2 is convicted on counts
1, 2 and 9.
Accused no. 3 is convicted on counts
1, 4, 7, 8 and 9.
Accused no. 4 is convicted on count 9.
Accused no. 5 is convicted on count 1.
Accused no.’s 1, 2 and 3 are
acquitted on count 5.
__________________
DAYALIN CHETTY
JUDGE OF THE HIGH COURT
On behalf of the State: Adv Le Roux
et Adv Swanepoel, National Director of Public Prosecutions, Asset
Forfeiture Unit, Bird Street,
Central, Port Elizabeth, Tel: (041) 502
5700
On behalf of the Defence: Adv Price
instructed by Griebenow Inc, 157 Cape Road, Mill Park, Port
Elizabeth, Tel: (041) 373 5530;
Ref: A. Griebenow
1
Accused
no.’s 2 and 5 were arrested at a later stage.
2
Act
No. 70 of 2002
3
Act
No. 18 of 1998
4
Act
No. 51 of 1977
5
In
the coastal communities of South Africa abalone is colloquially
referred to by its Afrikaans appellation as perlemoen.
6
Act
No. 121 of 1998
7
2009
(1) SACR 406
(SCA)
8
Paras
[8] and [9]
9
See
S v Snyman
1968 (2) SA 582
(A) at 585G
10
S
2(2) of the POCA provides that – “
The court may hear
evidence, including evidence with regard to hearsay, similar facts
or previous convictions, relating to offences
contemplated in
subsection (1), notwithstanding that such evidence might otherwise
be inadmissible, provided that such evidence
would not render the
trial unfair.”
11
Not
accused no. 3.
12
The
seventh (7
th
) activity for which accused no. 3 and
accused no. 5 were duly convicted and sentenced.
13
Els’
notes concerning the incident was handed in by agreement as exhibit
“BB”.
14
The
admissions relating to this activity was altered with the consent of
the defence by the substitution of the time 09h20 for
13h40.
15
Accused
no. 5 discharged on this count.
16
2000
(1) SA 1
(CC) at para [61].
17
These
were sourced from the compact discs which contained the entire
record of the monitored telephone calls. Copies of the discs
had
been provided to the defence and handed in as part of exhibit “F”.
18
I
have omitted the vulgar language and replaced the word by its first
letter.
19
Exhibit
Z0 (b) pages 38 – 41