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[2019] ZAECPEHC 11
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S v Brown and Others (CC 18/2017) [2019] ZAECPEHC 11; [2019] 2 All SA 552 (ECP) (5 February 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Case No: CC 18/2017
Date Delivered:
05/02/2019
In
the matter between:
THE
STATE
And
JULIAN
BROWN
ACCUSED 1
EUGENE
VICTOR
ACCUSED 2
BRANDON
CRAIG
TURNER
ACCUSED 3
JUDGMENT
MAKAULA
J:
A.
Introduction
:
[1]
The accused are charged with various contraventions namely:
Regulation 36(1)(a) read
with Regulation 96 of the Regulations
Promulgated in the Government Notice R1111 published in Government
Gazette 19205 of 2 September
1998 read with Regulation 1 and read
with various provisions of the Marine Living Resources Act (MLRA) Act
18 of 1998; contravention
of the Provisions of the Prevention
of Organised Crime Act 121 of 1998 (POCA); provisions of the Criminal
Procedure Act 51 of 1977
(CPA); the National Road Traffic Act 93 of
1998 (NRTA). The counts as appearing on the indictment is as
follows:
Count 1
:
The contravention of section 2(1)(f) read with section 1, 2(2), 2(3),
2(4) and
3 of Act 121 of 1998 (POCA) (manage the operation or
activities of an enterprise and knew or ought reasonably to 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).
(Accused 1and 2)
In that
during the
period January 2015 to April 2016 and at or near Port Elizabeth and
in the Division of the Eastern Cape accused 1 and
2 managed the
operation or activities of an enterprise as defined herein and knew
or ought reasonably to have known that any person,
whilst employed by
or associated with the enterprise, conducted or participated in the
conduct, directly or indirectly, of such
enterprise’s affairs
through a pattern of racketeering activities.
Count 2
:
The contravention of section 2(1)(e) read with section 1, 2(2), 2(3),
2(4) and
3 of Act 121 of 1998 (POCA) (Managing or associated with an
enterprise, conducting or participating in the conduct, directly or
indirectly, of such enterprise’s affairs through a pattern of
racketeering activity).
(Accused 2 and 3)
In that
between
the period January 2015 to April 2016 and at or near Port Elizabeth
and in the Division of Eastern Cape the accused employed
by or
associated with an enterprise defined herein, conducted or
participated in the conduct of these said enterprise, directly
or
indirectly, and of such enterprise’s affairs through a pattern
of racketeering activities.
Count 3
:
Attempt to Defeat or obstruct the course of Justice.
(Accused
1)
Whereas
on the
22
nd
of March 2015 accused 2 phoned Renier Ellerbeck and
instructed him to go and collect abalone bags in the Noord Hoek area
of Marine
Drive. Ellerbeck collected 7 bags of abalone and at
his (Ellerbeck’s) house the abalone was processed with the
assistance
of Edgar Clulow and others.
And whereas
later
during the same day accused 1 phoned Ellerbeck and instructed him to
go and collect the remaining bags of abalone.
Ellerbeck adhered
to the instruction and was seen by the police collecting the said
abalone bags. The police gave chase.
And whereas
accused 1 was on the scene and tried to prevent the police from
arresting Ellerbeck by preventing the police to apprehend Ellerbeck
by driving his vehicle between the police and the fleeing Ellerbeck.
Accused 1 knew that Ellerbeck contravened the law by
collecting the
abalone and acted wrongfully.
Now therefore
accused 1 is guilty of the offence of attempting to defeat or of
obstructing the ends of justice in that on or about 22
nd
of March 2015 at or near Port Elizabeth in the district of Port
Elizabeth the accused unlawfully and with intent to defeat or
obstruct the course of justice, hindered and attempted to prevent
Sergeant Trevor Shaw from arresting Renier Ellerbeck who was busy
contravening Regulation 36(1)(a) read with Regulation 96 of the
Regulations Promulgated in Government Notice R1111 and published
in
Government Gazette 19205 of 2 September 1998 read with Regulation 1
and section 58(4) of the Marine Living Resources Act, Act
18 of 1998,
knowingly that his action will be compromising the said arrest and
police investigation and thereby defeating or obstructing
the course
or administration of justice.
Count 4
:
The contravention of Regulation 36(1)(a) read with Regulation 96 of
the Regulations
Promulgated in Government Notice R1111 and published
in Government Gazette 19205 of 2 September 1998 read with Regulation
1 and
section 58(4) of the Marine Living Resources Act, Act 18 of
1998 Act, and further read with
section 250
of the
Criminal Procedure
Act, Act
51 of 1977. (The unlawful engaging in fishing,
collecting, disturbing, keeping, controlling, storing, transporting
or be
in possession of abalone without a permit). (
Accused
1)
In that
on or
about 22
nd
of March 2015 and at or near Marine Drive in
the district of Port Elizabeth, Accused 1 did unlawfully and
intentionally engage
in the fishing, collecting, disturbing, keeping,
controlling, storing, transporting or possession of at least 218
units of abalone
without a permit.
Count 5
:
The contravention of
section 58(1)(a)(i)
read with
sections 1
,
13
(1)
and
18
(1) of the
Marine Living Resources Act, 18 of 1998
, read with
the provisions of
section 250
of the
Criminal Procedure Act, Act
51
of 1977. (Conduct a fish processing establishment without
having been granted the right to do so).
(Accused 3)
In that
on or
about 11 May 2015 and at or near 6 Deborah Street, Westering in the
district of Port Elizabeth, the accused unlawfully and
intentionally
conducted a fishing processing establishment without having been
granted the right by means of a permit to do so
in that he worked or
involved himself in the cutting up, dismembering, separating parts
of, cleaning, sorting, lining and preserving
of abalone, or packed,
dried, gutted, salted, iced, chilled, frozen or otherwise processed
abalone for sale in or outside the territory
of the Republic, to wit
7570 units of abalone with a weight of approximately 1.125 ton
without a permit.
Count 6
:
The contravention of
regulation 36(1)(a)
read with
regulation 96
of
the Regulations promulgated in Government Notice R1111 and published
in Government Gazette 19205 of 2 September 1998 read with
regulation
1
and
section 58(4)
of the
Marine Living Resources Act, 18 of 1998
,
and further read with section 250 of the Criminal Procedure Act, 51
of 1977.
(Accused 3)
In that
on or
about 11 May 2015 and at or near 6 Deborah Street, Westering in the
district of Port Elizabeth, the accused did unlawfully
and
intentionally engage in the fishing, collecting, disturbing, keeping,
controlling, storing, transporting or possession of abalone,
to wit
7570 units of abalone with a weight of approximately 1.125 ton
without a permit.
Count 7
:
The contravention of regulation 36(1)(a) read with regulation 96 of
the Regulations promulgated
in Government Notice R1111 and published
in Government Gazette 19205 of 2 September 1998 read with regulation
1 and
section 58(4)
of the
Marine Living Resources Act, 18 of 1998
,
and further read with section 250 of the Criminal Procedure Act, 51
of 1977.
(Accused 2)
In that
on or
about 16 August 2015 and in the district of Port Elizabeth and on the
main road to Graaff-Reinet near Jansenville and in
the district of
Jansenville in the Eastern Cape Division the accused did unlawfully
and wrongfully engage in the fishing, collecting,
disturbing,
keeping, controlling, storing, transporting or possession of 8401
units of abalone, without a permit.
Count 8
:
Fraud.
(Accused 2)
In that
on or
about 16 August 2015 and on the main road to Graaff-Reinet near
Jansenville in the district of Jansenville and in the Eastern
Cape
Division the accused unlawfully, falsely and with the intent to
defraud and prejudice Warrant Officer A Ferreira and or Warrant
Officer B Smit or any other law enforcement officer gave out and
pretended to Warrant Officer A Ferreira and or Warrant officer
B Smit
that the vehicle which he was driving legally and correctly displayed
a registration plate to wit WNY 887 GP and as such
was issued to the
said vehicle.
Whereas in truth and in
fact when he so gave out and pretended knew that the registration
plate WNY 887 GP was false and was not
issued to the vehicle he was
driving.
Count 9
:
Forgery and Uttering.
(Accused 2)
Forgery
In that
on or
about 16 August 2015 and on the main road to Graaff-Reinet near
Jansenville in the district of Jansenville and in the Eastern
Cape
Division the accused unlawfully and with the intent to falsify
altered a licence disc legally issued to a vehicle with registration
number DDM 760 EC to read as if the said licence disc was issued to a
vehicle with registration number WW 887 GP to the actual
or potential
prejudice of Warrant Officer A Ferreira and or Warrant Officer B Smit
or any other law enforcement officer or to the
State; and
Uttering
In that
on or
about 16 August 2015 and on the main road to Graaff-Reinet near
Jansenville in the district of Jansenville and in the Eastern
Cape
Division the accused unlawfully and intentionally passed off the
forged document to Warrant Officer A Ferreira and or Warrant
Officer
B Smit well knowing it is forged in order to act to the potential
prejudice of the State.
Count 10
:
The contravention of section 12(a) read with section 1, 34 and 89 of
the National Road Traffic
Act, 93 of 1996 (Diving without a
licence). (
Accused 2)
Alternatively: The
contravention of section 12(b) read with section 1, 34 and 89 of the
National Road Traffic Act, 93 of 1996
(Failing to keep produce
driver’s licence).
In that
on or
about 16 August 2015 and on the main road to Graaff-Reinet, the R75
public road, near Jansenville in the district of Jansenville
and in
the Eastern Cape Division the accused unlawfully and intentionally
drove a motor vehicle, to wit DMM 760 EC, without a driver’s
licence issued to him in accordance with the law.
Alternatively: The
contravention of section 12(b) read with
section 1
,
34
and
89
of the
National Road Traffic Act, Act
93 of 1996 (Failing to keep produce
driver’s licence).
In that
on or
about 16 August 2015 and at or near the main road to Graaff-Reinet,
the R75 public road, near Jansenville in the district
of Jansenville
and in the Eastern Cape Division the accused unlawfully and
intentionally drove a motor vehicle, to wit DMM 760
EC, without a
driver’s licence in his possession which was issued to him in
accordance with the law.
Count 11
:
The contravention of
regulation 36(1)(a)
read with
regulation 96
of
the regulations promulgated in Government Notice R1111 and published
in Government Gazette 19205 of 2 September 1998 read with
regulation
1
and
section 58(4)
of the
Marine Living Resources Act, Act
18 of
1998 Act, and further read with
section 250
of the
Criminal Procedure
Act, Act
of 1977.
(Accused 2)
In that
on or upon
30 September 2015 and at 2 Creswell Street, Sidwell in the district
of Port Elizabeth in the Eastern Cape Division the
accused unlawfully
and wrongfully engaged in the fishing, collecting, disturbing,
keeping controlling, storing, transporting or
possession of 1107
units of abalone, without a permit.
Count 12
:
The contravention of
section 4(a)
read with section 1, 7A and 8 of
the Prevention or Organised Crime Act, Act 121 of 1998. (Money
Laundering)
(Accused 1)
Whereas
in
September 2015 the Accused visited Dada’s Motorland, a
second-hand car dealer near Four Ways, Gauteng and displayed a
white
Ferrari California motor vehicle to the value of R1 879 980.00
And whereas
on or
about September 2015 and at or near Port Elizabeth the Accused
approached Mr Martin Phillip Kriel (“Kriel”) with
a
request to buy and finance the said Ferrari California and register
the Ferrari California in the name of Kriel in
lieu
of payment
of R500 000.00 in cash. The Accused agreed to pay the monthly
instalments in cash to Kriel.
And whereas
the
Accused gave Kriel the amount of R502 000.00 in cash in return for
the agreement and or arrangement and or transaction.
And whereas
on or
about the 16
th
October 2015 Kriel bought and finance the
said vehicle and caused the vehicle to be registered in his name on
the 29
th
of October 2015.
And whereas
the
said vehicle was delivered to the premises of Kriel in Port Elizabeth
where the Accused took delivery thereof.
And whereas
it is
alleged that the R502 000.00 cash the Accused gave Kriel forms part
of the proceeds of unlawful abalone related activities.
Now therefore
in
or about September/October 2015 and at Port Elizabeth the Accused,
whilst he knew or ought to have reasonably known that the
R502 000.00
cash is or forms part of the proceeds of unlawful abalone activities,
unlawfully entered into an agreement or engaged
in an arrangement or
transaction with Kriel in connection with the cash in terms of which
Kriel was to purchase, finance and register
in the name of Kriel a
Ferrari California motor vehicle and so gave out that Kriel is the
owner of the Ferrari California whilst
the Accused was the
de
facto
owner of the said Ferrari, whether such agreement,
arrangement or transaction is legally enforceable or not, but which
had or is
likely to have, the effect of concealing or disguising the
nature, source, location, disposition or movement or the ownership
thereof
or any interest which the Accused may have in respect of the
vehicle, the property.
[2]
The charges are predicated on various racketeering activities.
The State further
alleges that Accused 1 and 2 were associated in
fact and thus formed an enterprise in terms of section 1 of the POCA
(which I shall
deal with below). The purpose of the enterprise
was meant to contravene the provisions of the POCA and the MLRA.
[3]
The State alleges that the accused and other persons, known and
unknown to the State
directly or indirectly involved themselves in
the conduct or participated and or managed the enterprise and or
participated in
conduct of the affairs of the enterprise by engaging
in the illegal fishing, collecting, keeping, in contravention of
section 58(1)(a)(i)
of the MLRA and or the contravention of
Regulation 36 of the regulations as promulgated under Government
Notice R1111 and published
in Government Gazette no 19205 of 2
September 1998, being Schedule 1 of the POCA offences as follows:
Racketeering
Activity 1
:
In
that or about 22 March 2015 and at Marine Drive, Port Elizabeth in
the district of Port Elizabeth the said enterprise, through
their
employees Renier Ellerbeck and Accused 1, unlawfully and wrongfully
engaged in the fishing, collecting disturbing, keeping,
controlling,
storing, transporting or possession of 218 units of abalone, without
a permit.
Racketeering
Activity 2
:
In
that on or about 6, 26 and 29 of April 2015 and at the residence of
Renier Ellerbeck in Cradock Place, Algoa Park in the district
of Port
Elizabeth the said enterprise, through their employees, Eugene
Victor, (Accused 2), Brandon Craig Turner, (Accused 3),
Andre van
Rensburg, Edgar Clulow, Johantjie, Sheron Smith, Christiaan John Koen
and Renier Erasmus and others unlawfully and wrongfully
engaged in
the fishing, collecting, disturbing, keeping, controlling, storing,
transporting or possession of an unknown amount
of abalone without a
permit.
Racketeering
Activity 3
:
In
that on or about 17 April 2015 and at 56 Heather Garden Square,
Forest Hill in the district of Port Elizabeth the said enterprise,
through their employee, JP van Zyl, unlawfully and wrongfully engaged
in the fishing, collecting, disturbing, keeping, controlling,
storing, transporting or possession of 691 units of abalone, without
a permit.
Racketeering
Activity 4
:
In
that on or about 11 May 2015 and at or near 6 Deborah Street,
Westering in the district of Port Elizabeth, the said enterprise
through their employee, Accused 3, did unlawfully and intentionally
conduct a fishing processing establishment without having been
granted the right by means of a permit to do so in that they worked
or involved themselves in the cutting up, dismembering, separating
parts of, cleaning, sorting, lining and preserving of abalone, or
where abalone were packed, dried, gutted, salted, iced, chilled,
frozen or otherwise processed for sale in or outside the territory of
the Republic, to wit 7570 units of abalone with a weight
of
approximately 1.125 ton.
Racketeering
Activity 5
:
In
that or about 28 May 2015 and at 8 Corbin Street, Sherwood in the
district of Port Elizabeth the said enterprise, through their
employee, Edgar Clulow unlawfully and wrongfully engaged in the
fishing, collecting, disturbing, keeping, controlling, storing,
transporting or possession of 1011 units of abalone without a permit.
Racketeering
Activity 6
:
In
that on or about 12 July 2015 and at or near 15 Nassau Street, Kamma
Ridge in the district of Port Elizabeth the said enterprise
through
their employee, Pierre Scholtz, did unlawfully and intentionally
conduct a fish processing establishment without having
been granted
the right by means of a permit to do so in that they worked or
involved themselves in the cutting up, dismembering,
separating parts
of, cleaning, sorting, lining and preserving of abalone, or where
abalone are packed, dried, gutted, iced, chilled,
frozen or otherwise
processed for sale in or outside the territory of the Republic of
South Africa, to wit 1618 units of abalone
without a permit.
Racketeering
Activity 7
:
In
that on or about 4 August 2015 and at or near the Department of
Correctional Services, North End, in the district of Port Elizabeth
the said enterprise, through their employee, the said Jan Smuts, did
unlawfully and intentionally engage in collecting, disturbing,
keeping, controlling, storing, transporting or be in possession of
abalone to wit at least 3152 units of abalone without a permit.
Racketeering
Activity 8
:
In
that on or about 16 August 2015 and on the main to Graaff-Reinet near
Jansenville in the district of Jansenville the said enterprise,
through their employee, Accused 2 unlawfully and wrongfully engaged
in the fishing, collecting, disturbing, keeping, controlling,
storing, transporting or possession of 8401 units of abalone, without
a permit.
Racketeering
Activity 9
:
In
that on or about 26 August 2015 and at 8 Corbin Street, Sherwood in
the district of Port Elizabeth the said enterprise, through
their
employee, Edgar Clulow, unlawfully and wrongfully engaged in the
fishing, collecting, disturbing, keeping, controlling, storing,
transporting or possession of 291 units of abalone, without a permit.
Racketeering
Activity 10
:
In
that on or about 30 September 2015 and at 2 Creswell Street, Sidwell
in the district of Port Elizabeth the said enterprise, through
their
employee, Accused 2 unlawfully and wrongfully engaged in the fishing,
collecting, disturbing, keeping, controlling, storing,
transporting
or possession of 1107 units of abalone, without a permit.
Racketeering
Activity 11
:
In
that abalone was unlawfully dealt with by the said enterprise in
contravention of section 58(1)(a)(i) read with
sections 1
,
13
(1) and
18
(1) of the
Marine Living Resources Act, Act
18 of 1998 and in
contravention of
regulation 36(1)(a)
of the Regulations promulgated
under Government Gazette Notice R1111 and published in Government
Gazette 19205 of 2 September 1998,
as amended, with
regulation 1
and
96
of the said Regulation as issued in terms of
section 77
of Act of
1998, the
Marine Living Resources Act by
conducting a fishing
processing establishment without having been granted the right by
means of a permit to do so on or about 11
April 2016 at the premises
situated on the corner of Lindsay Road and Buitekant Street in Neave
Township in the district of Port
Elizabeth.
[4]
This pattern of racketeering activity is vested in the planned,
ongoing, continuous
and repeated direct or indirect involvement in
the illegal collecting, possession, transportation and processing of
abalone.
B.
Pleas and Plea Explanations
:
[5]
Accused 1 is charged with counts’ 1; 3; 4 and 12. Accused
2 is charged
with counts’ 1; 2; 7; 8; 9; 10 and 11, whereas
Accused 3 is charged with counts’ 2 and 6.
[6]
Accused 1 pleaded not guilty to all the counts and made a statement
explaining his
plea in terms of section 115 of the Criminal Procedure
Act
[1]
(the CPA). The plea
explanation is contained in Exhibit “A” and reads:
“
A. BACKGROUND
1.
I am Accused 1 in this matter.
2.
I know and understand the contents of this indictment. The
contents of
the police docket and the nature of
the charges have been explained to me in detail by my legal
representatives.
3.
My constitutional rights in terms of section 35(3) of the
Constitution of the
Republic of South Africa Act 108 of
1996 have been explained to me.
4.
The evidential value of this Plea Explanation at the closure of the
State’s
case (the section 174 stage) and at the end of the
trial have been explained to me. It has been explained to me
that although
this Plea Explanation is not evidence, the State must
nonetheless gainsay the relevant aspects of my version in this plea
explanation.
5.
I plead not guilty to all the charges that I am facing.
6.
I make this Plea and the Plea explanation that follows hereunder
freely and voluntarily
without undue influence and whilst in my sound
and sober senses.”
THE
PLEA (CONTENT)
B
ADD COUNT 1
7.
I deny that I was ever part of any enterprise. I have never conducted
or participated
in any enterprises, in particular, the enterprises
the State alleges I was involved in in this case.
8.
I am not accused of contravening count 2.
ADD
COUNT 3
9.
I deny that I ever attempted to defeat or obstruct the course of
justice as alleged
by the State and put the State to the proof
thereof.
10.
In particular, I deny the allegation that I was in any way connected
with Renier Ellerbeck’s
decision (“Ellerbeck”) to
allegedly collect 7 bags of abalone at his house. I furthermore
deny any knowledge
of the allegations in count 3 relating to the 22
nd
March 2015. I put the State to the proof of all of these
allegations.
ADD
COUNT 4
11.
It appears as if count 4 is related to count 3 and I once again deny
that I was ever
engaged in fishing, collecting, disturbing, keeping,
controlling, storing, transporting or possessing any abalone, let
alone the
218 units alleged in this charge.
ADD
COUNTS 5 – 11
12.
These are not charges that I am facing and therefore I can make no
comment thereon.
ADD
COUNT 12
13.
I deny that I, at any point in time, committed the offence of “money
laundering”
in contravention of
section 4(a)
of the
Prevention
of Organised Crime Act (POCA
) 121 of 1998.
14.
In particular, I deny that I was involved in any business transaction
with Martin
Phillip Kriel to finance a Ferrari California as alleged
by the State in the preamble to the allegations set out in count 12.
15.
This transaction is one conducted by Kriel himself and where Kriel,
in order to avoid
being similarly charged has simply placed all the
blame on me.
ADD
EVIDENCE IN GENERAL
16.
I have been informed that the State will call as their first witness,
the investigating
officer, Captain Rynaardt Swanepoel, and that he
will, in his evidence repeatedly refer to hearsay evidence. On
the advices
of my legal representatives, I want to state immediately
that I will object to each and every piece of hearsay evidence that
Captain
Swanepoel testifies about on the basis of the decision in
S
v Ndlovu
2002 (2) SACR 325
(SCA).
17.
Furthermore, the State intends to call, as I am led to believe, at
least 5
section 204
witnesses. These are witnesses that were
once upon a time accused persons and have now turned State Witness.
(Sic)
18.
The circumstances leading to each and every one of these
section 204
witnesses being arrested and later turning requires that I point out
the following:
18.1
Each and every one of these
section 204
witnesses was arrested after
a search had been conducted of their property in terms of a
search warrant issued by
either a senior member of the South African Police or by a local
magistrate;
18.2
Not one of these search warrants remotely complied with the
peremptory
requirements as set out by the Constitutional Court in the matter of
NDPP v Van Der
Merwe,
2011 (2) SACR 301
CC at 316 – 7.
18.3
I have been informed by my legal representatives that the apex Court
in this Country to
wit the Constitutional Court has made it
very clear that since we live in a constitutional democracy and
since the invasion of
people’s privacy is frowned
upon by the Constitution of the Republic of South Africa Act 108 of
1996 our Courts must stringently apply South African Law and in
particular, the South African Constitution to research
warrants.
19.
Furthermore, the Constitutional Court has made it very clear in the
abovementioned
case that since the searching of a person living in
South Africa’s private premises is
prima facie
a
contravention of sections 12 and 14 of the Constitution (to the right
to dignity and the right to privacy) therefore:
19.1
Search warrants must
always
be obtained prior to searching
where such is
possible;
19.2
Search warrants contain a number of peremptory requirements and
should these peremptory
requirements and details not be
included in the search warrants, the search would be unlawful.
The evidence therein cannot
with respect, be saved by section
35(5) of the Constitution of the Republic of South Africa;
19.3
At the time each and every one of these section 204 accused houses /
vehicles / premises were
being searched, they were searched illegally
since the search warrants
used herein were
illegal and did not consist of the peremptory
details requirements as
set out above;
(sic)
19.4
What automatically then follows is that these persons, arrested as a
result of an illegal
search warrants, were illegally arrested;
19.5
As a result of these illegal searches and with the ultimate result
being illegal
arrests, all
of these section 204 witnesses were detained and brought before
Court unlawfully;
19.6
The unlawful acts referred to above allowed the police to apply
illegal pressure
on each and every one of these
accused persons to turn State witness. This included a promise
should they implicate me, the
charges against them will be
withdrawn and they will not be prosecuted.
20.
I intend to place evidence before this Honourable Court of a number
of other witnesses
who were pressurised by the police and the
prosecution and in particular, Captain Swanepoel and other members of
his Organised
Crime Team as well as the Prosecutor that all they must
do was to implicate me and by doing so, they would be safe from
further
prosecution and in some instances, definite jail time.
(Quite clearly, they had very little choice. It was either jail
for them or they must implicate me)
21.
In these circumstances, not one of these section 204 witnesses from
the time that
their houses / premises / persons / vehicles were
searched illegally, was ever given a choice to objectively, fairly
and of their
own accord, decide to testify against me. It is
quite obvious that when people are told that if they do not agree to
testify
against me and to implicate me they would be kept in custody
and / or convicted and sent to jail, it amounts to undue influence
on
the part of the police and it gives the erstwhile accused, now
section 204 witnesses very little, if any choice to make decisions
freely and fairly.
22.
I also note that although these erstwhile accused, now section 204’s,
were brought
before Court and although many of them had their own
attorneys after the charges were withdrawn against them, Advocate van
der
Spuy of the Legal Aid Board (who works very closely with Captain
Swanepoel as can be seen in the matter of State v Panayiotou) was
brought on board and, as in the Panayiotou case, did not hesitate to
advise his client to turn State witness against me.
23.
As a result of all of the above, my right to a fair trial has been
severely transgressed
by the police through their deliberately
unlawful activities, threats and promises to person in dire straits
facing lengthy jail
terms where they not to turn section 204. A
number of these section 204 witnesses have substantial criminal
records and were
therefore forced to implicate me and testify against
me, failing which they would end up spending time in jail.
24.
I have been advised by my legal representatives that they will call
for a trial-within-a-trial
on each and every one of the section 204
witnesses, searches of their houses, their arrests and the manner in
which they morphed
from accused persons to section 204 witnesses, so
that this Honourable Court may determine whether or not that
desperate
modus operandi
on the part of the police did not
interfere with my Constitutional right to a fair trial”.
[7]
Accused 2 and 3 did not make a plea explanation. They put the
State to the
proof of its allegations against them.
[8]
Mr Le Roux made a statement in terms of section 150 of the CPA.
He stated that
the enterprise, which Accused 1 and 2 formed,
conducted its affairs through a pattern of racketeering activities
set out in the
indictment and all the racketeering activities are
individually Schedule 1 offences in terms of the
Prevention of
Organised Crime Act (Act
121 of 1998) POCA. Cumulatively, so
the submission went, the offences constitute a pattern.
[9]
In the process of trying to establish the guilty of the Accused, Mr
Le Roux sought
to lead the evidence of Captain Swanepoel which at the
time was hearsay. I allowed him to do so in terms of
section 2
of the POCA the provisions of which allow the court to admit hearsay
evidence relating to the offences contemplated in subsection
(1)
provided that such evidence would not render the trial unfair.
[10]
The genesis of the investigations which culminated in the arrest of
the Accused is common cause.
It has been set out by Mr Mostert
of the Department of Agriculture Forestry and Fisheries (DAFF).
The uncontested evidence
is that illegal abalone trading or
harvesting in the Eastern Cape has been a problem since 1993.
The main hub of such illegal
activity has been Port Elizabeth where
illegal enterprises and a number of Kingpins are operating. The
illegal activities
led to the depletion, bordering on being extinct
of abalone in the area. That led the DAFF to appoint a company
named Wild
Coast Abalone to seed abalone in the ranching area from
Schoenmakerskop to Cape Recife. Wild Coast Abalone in turn
employed
TTF to patrol and protect the abalone in their ranching
area. Members of the TTF worked hand in- glove with SAPS and
Marine
Sources Officers in arresting abalone poachers. That
culminated in the formation of the task team testified to by Captain
Swanepoel as dealt with in his evidence.
[11]
Captain Swanepoel therefore testified broadly about how the
investigations of abalone poachers
began in Port Elizabeth. He
was appointed as a head investigator. He formed a task team of
investigators, involving
other SAPS units. They were assisted
by officials from the Department of Agriculture, Forestry and
Fisheries (DAFF) and Technical
Task Force (TTF). I shall deal
extensively below with the role played by these officials.
[12]
Captain Swanepoel as an investigator gave a detailed background of
the investigation starting
with the searches conducted in each of the
section 204
witnesses, the Accused persons and their arrest.
The searches that were conducted by Captain Swanepoel and or the
members
of the task team, either with search warrants or not, were
vigorously objected to by the Accused. Consequent thereto a
trial
within a trial was held. I made an order declaring some
of the searches and search warrants to be unlawful.
[13]
I deal with the evidence of Captain Swanepoel in detail only in those
instances where he was
personally involved in the investigation.
I do not deal with his evidence in detail where the search was
conducted by other
members called in the trial within a trial in an
effort to avoid to be too prolix and discursive.
C.
Trial-within-a-Trial
:
[14]
The State called the evidence of Captain Swanepoel, Sergeant Trevor
Thomas Shaw, Warrant Officer
Denzil Henry Dirk and Captain Hendrik
Stephanus Erasmus. The defence did not call evidence.
[15]
Capt. Swanepoel as alluded to, testified globally about the search
warrants which were obtained
in respect of the various racketeering
activities. He testified that the searches in respect of
racketeering activities two,
three, five, eight and nine had no
search warrants. He stated that there was a burglary at his
office which resulted in search
warrants and accompanying affidavits
in respect of the third and fourth activities being lost.
[15]
Captain Swanepoel gave a background as to how the investigation in
respect of pouching of abalone
was commenced which culminated in the
arrest of the accused. DAFF embarked on measures to preserve
abalone because abalone
poaching reached alarming proportions.
The investigations against the abalone poachers took a long time to
complete because
of the manner in which they operated. The
abalone poachers operated as syndicates, so he testified. He
sketched how
the syndicate was constituted and operated. Diving
equipment had to be organised. There were divers who would dive
and harvest the abalone from the sea. The abalone would be
placed in marked bags, bearing the identification marks of each
diver. The abalone would be given over to a gardjie, who would
take it to a designated motor vehicle. The driver would
drive
to the house (weigh house) where it would be sorted in terms of
sizes, deshelled and weighed per bag. Each diver would
be paid
per the weight and size of the abalone. The abalone would be
taken from the weigh house by another driver to a store
house, where
it would be kept in deep-freezers. It would be transported by
another person to a processing plant where it
would be cleaned and
cooked. After that process it would be transported to either
Gauteng or Cape Town and ultimately to
China where it is sold as a
delicacy. The syndicates operated on a “need to know basis”.
The diver does not know
the driver. The latter does not know
the weighers who in turn do not know the store person. The
store person does not
know where the processing plant is. Even
payments are not made by the kingpin, i.e. the person who ultimately
sells it to
the market directly. Payments are filtered down
through different people.
[17]
In respect of the first activity that occurred on 22 March 2015 at
Marine Drive, Captain Swanepoel
testified that there was no search
warrant sought because Renier Ellerbeck was apprehended by Sergeant
Shaw transporting abalone.
Captain Swanepoel questioned Renier
Ellerbeck. He gave information which led him to the discovery
of the other activities.
Renier Ellerbeck was not influenced
nor coerced to give out the information.
[18]
Trevor Thomas Shaw
(Sergeant Shaw) is a sergeant in the South
African Police Services and a member of the Organised Crime Unit
(OCU) under the command
of Captain Swanepoel. He arrested
Renier Ellerbeck on 22 March 2015 along the Marine Drive transporting
abalone.
[19]
On 22 March 2015, Sergeant Shaw was patrolling the coast in
Schoenmakerskop towards Noordhoek.
He noticed two people
standing on the shore in the rocks. A third person was in the
water. The two assisted him out
of the water. He noticed
along the road a white Corsa bakkie. He took its number plate
and drove past it. Suddenly
a white Kadett and Ford Ranger
Double Cab appeared. They parked next to each other. The
three men approached the tarred
road and came closer to the Corsa.
A person alighted from the Corsa. He took the green bags from
the three men and
went back to the Kadett and placed the bags in the
boot. He was watching all that through his rear-view mirror.
He
started the motor vehicle and made a u turn towards the three
motor vehicles with his blue light on and chased after the Kadett
towards Schoenmakerskop. The white Ford Ranger “cut”
in front of him by joining the road. He could
not
overtake it because of oncoming traffic. The Ranger
deliberately blocked his road as it would go fast and suddenly apply
its brakes to an extent that he nearly caused an accident. He
eventually managed to overtake it. He asked Constable
Burton,
who was his passenger, to take the registration letters and numbers.
He gave them out as FYF 604 EC. He could
not identify the
driver but noticed that it was a white male.
[20]
Sergeant Shaw did not lose sight of the Kadett and drove closer to
it. Its driver suddenly
turned into a gravel road heading
towards the Red-Cross. He could not follow it as he was
traveling fast. He made a
u turn and followed its direction.
He asked from people who were in the vicinity about it. They
showed him by pointing
at its direction. He spotted it and
noticed a white male running into the bush. He shouted at him.
That person
was on the phone. He pointed him with his firearm
and ordered him to drop the phone and raise his hands. That
person
complied. It transpired that it was Renier Ellerbeck.
He asked what was in the motor vehicle. He responded by
saying
“Meneer kan mos sien”. He asked him again what was
in the boot. Renier Ellerbeck told him it was
abalone. He
informed him of his Constitutional rights and arrested him. At
the police station, DAFF officials identified,
counted and took
possession of the abalone. He took Renier Ellerbeck to the
police cells and made him to sign an SAP 14 form
which contained and
informed Renier Ellerbeck of his Constitutional rights as a
detainee. He detained him. He advised
Captain Swanepoel
of the arrest of Renier Ellerbeck and that the latter wanted to meet
him. He testified that he had no opportunity
to obtain a search
warrant in the circumstances.
[21]
Sergeant Shaw testified further that the investigations led to the
third activity which occurred
on 17 April 2015 at 56 Heather Garden
Square, Forest Hill. Due to surveillance operations, Mr JP van
Zyl was arrested at
his house. He was found in possession of
abalone without a permit. The search at his house was conducted
without a
search warrant.
[22]
In respect of the fourth activity, a search warrant was obtained by
Sergeant Shaw and abalone
was found at 6 Deborah Street, Westering
which was the address of Accused 3. The search warrant was
issued by a Magistrate.
The search warrant was removed from the
docket and never found. The search at Accused 3’s house
was done by members
of the TTF and his unit. However, the
search was video recorded by Nicky Swarts of the TTF. The
search warrant at the
time was executed by Warrant Officer Dirk of
the Dog Unit. This was in spite of Accused 3 having granted
permission that
his house be searched.
[23]
In respect of the fifth activity at 8 Corbin Street, Captain
Swanepoel testified that no search
warrant was obtained because the
search was not planned. It occurred after a motor vehicle
driven by Edgar Clulow was found
in that house.
[24]
Captain Swanepoel applied for a search warrant in respect of the
sixth activity. There
was surveillance done of the house of Mr
Smuts at the premises of the Department of Correctional Services in
North End. While
still observing the house, they got wind that
there were two motor vehicles which were transporting abalone. They
spotted one of
the motor vehicles. They followed it to 15
Nassau Street, Kragga Kamma. He approached the Commander of his
unit Colonel
Till to issue a search warrant. He submitted a
handwritten affidavit in support of the search warrant. Colonel
Till
granted the search warrant and it was dated 10 July 2015.
In his written affidavit, he stated the reasons for the search.
The search warrant authorised Warrant Officer Scholtz and Captain
Erasmus to conduct the search. The person who occupied
the
house was Mr Scholtz. The search warrant was executed on 12
July 2015 by Captain Erasmus. The search warrant was
handed in
as
Exhibit “B”.
[25]
The seventh activity relates to the house of Mr Smuts at the premises
of the Department of Correctional
Services. Information came to
hand that the house is used as a store house for abalone.
Sergeant Shaw applied for a
search warrant. The application was
granted by Magistrate, Du Preez and handed in as
Exhibit “C”.
[26]
Activity eight involved the arrest of Accused 2 in Jansenville and no
search warrant was obtained
because he was stopped on the road
driving a motor vehicle which was laden with abalone.
[27]
In respect of the ninth activity, the search was conducted based on a
search warrant which was
granted by a magistrate (Exhibit “L”)
and applied for by Sgt Shaw (Exhibit “M”).
[28]
On 30 September 2015, at 2 Creswell Street, Captain Swanepoel
executed a search warrant.
It was upon information that Accused
2 was to transport abalone in a Ford Bantam bakkie. Accused 2
lost them and they had
to use the search warrant in searching those
premises. The search warrant was authorised by Colonel Till.
It was obtained
on an urgency basis and was authorised at the
shopping centre at Commercial Road.
[29]
On 28 June 2016 he and other members executed a search warrant and
warrant of arrest in respect
of Accused 1. The search warrant
is Exhibit “E” and the arrest warrant is Exhibit “F”.
Captain
Erasmus executed both warrants. Accused 2 was arrested
by Warrant Officer Plaatjies and the latter further executed the
search
warrant which is Exhibit “G”. Accused 3 went
on his own to the charge office and he was arrested without a warrant
of arrest. Exhibit “H” is the affidavit in
lieu
thereof by Sergeant Shaw.
[30]
Sergeant Shaw, on 28 August 2015 at 8 Corbin Street, he again
executed a search warrant which
he obtained from Mr Du Preez.
It also authorised day and night search. He was the only police
officer authorised to
conduct the search. He stated that the
form they used at the time did not provide a space where other police
or people involved
in the search should be written.
[31]
Sergeant Shaw was cross-examined at length about how unlawful the
search was in respect of Renier
Ellerbeck, the failure to obtain a
search warrant at the time of his arrest and failure to reflect that
Renier Ellerbeck was advised
of his constitutional rights.
[32]
Furthermore, he was asked about the failure to reflect the offence(s)
on Exhibit “C”
i.e. the search of Mr Smut’s house
(activity 7) and also the failure to reflect his name on the search
warrant and that of
Renier Ellerbeck.
[33]
He applied for Exhibit “J” on information received from
Captain Swanepoel.
It was about a white Golf. He did not
know at the time that the person spoken about was Accused 3. It
was put to him
by Mr Roelofse that the affidavit made fell short of
explaining which offences Accused 3 was suspected of having
committed.
The search was conducted at night, even though the
affidavit in support of the search warrant does not reflect that it
was to be
a night search.
[34]
Warrant Officer Denzil Henry Dirk
a member of the dog unit who
executed a search warrant at 6 Deborah Street on 11 May 2015 at
Accused 3’s place of residence.
Warrant Officer Dirk
testified that he did not use the search warrant because Accused 3
gave him verbal permission to search the
premises. However he
informed Accused 3 that they were in possession of a search warrant.
He was with Constable Spanneberg
and Sergeant Shaw. With the
aid of their dogs, they searched and found abalone. He conceded
that the name of the suspect
and the fact that he was armed with a
search warrant, do not appear in his written statement i.e. Exhibit
“N”.
[35]
Captain Hendrik Stephanus Erasmus
(Captain Erasmus) has been
involved in the investigation of illegal poaching of abalone since
1992. He is also a police diver.
He executed Exhibit “B”
at 15 Nassau Street on 12 July 2015. He was working with
Captain Swanepoel and members
of the TTF. They had kept the
house under surveillance for some time. On the day, he spotted
Mr Scholtz getting into
the property. He waited for a while.
Mr Scholtz opened the door. He informed him of his purpose and
handed over
the search warrant to him. Mr Scholtz elected to
keep quiet. He found abalone in freezers. He arrested
him.
[36]
On 28 June 2016 Accused 1 was arrested in terms of a warrant of
arrest marked Exhibit “E”.
He executed the warrant
of arrest. He simultaneously served Accused 1 with a search
warrant. Accused 1 phoned his attorney
Mr Danie Gouws who later
arrived at his house. Mr Gouws was given the warrants.
They conducted a search and seized
three cellphones amongst other
things.
[37]
During cross-examination, Captain Erasmus conceded that Exhibit “B”
did not comply
with the requirements of a valid search warrant
because it did not provide for the offence(s) the names of the
suspect or owner
of the property to be searched.
[38]
Captain Erasmus however, stated that in terms of the new pro-forma
forms, all the requirements
have been covered. At the time
Exhibit “B” was signed and furnished by the Magistrate to
him, he believed that
the search warrant complied with the legal
prescripts and was valid.
[39]
As stated above, I allowed Captain Swanepoel to adduce hearsay
evidence. Captain Swanepoel
testified about the arrest of
Renier Ellerbeck by Sergeant Shaw along Marine Drive. I shall
deal with his evidence in this
regard below when I deal with the
evidence of Sergeant Shaw in the trial.
[40]
The State closed its case and I made the following order with reasons
to follow:
“
1.
The search warrants Exhibit B, C, D and L are declared invalid.
2. Exhibit E and G
which are search warrants issued against accused 1 and 2 are declared
to be valid.
3. The search
without a warrant conducted on 22 March 2015 in respect of Renier
Ellerbeck (house and car) is valid.
4. The search
without a warrant of the car of Edgar Clulow is declared valid.
5. The search
without a warrant of the house J van Zyl is also declared valid.
6.
The State is allowed to lead evidence so that the court may be able
to make a determination in terms of section 35(5)
of the
Constitution”.
[41]
These are now my reasons:
[42]
Chapter 2 of the
Criminal Procedure Act, in
particular
sections 19
–
36
deal with seizure and for forfeitures of certain activities.
Section 20
stipulates which articles may be seized. This
section authorizes the state to seize any property within the
Republic of South
Africa or elsewhere which the State on reasonable
grounds believe it to be concerned in the commission or suspected
commission
of an offence and offered evidence thereof.
[43]
Section 21
deals with articles to be seized under a search warrant.
Section 21
provides:
“
21
Article to be seized under search warrant
(1)
Subject to the provisions of
sections 22
,
24
and
25
, an article referred to in
section 20
shall be seized only
by virtue of a search warrant issued –
(a)
by a magistrate or justice, if it
appears to such magistrate or justice from information on oath
that there are reasonable
grounds for believing that any such article
is in the possession or under the control of or upon any person or
upon or at any premises
within his area of jurisdiction; or
(b)
by a judge or judicial officer
presiding at criminal proceedings, if it appears to such judge or
judicial officer that any such
article in the possession or under the
control of any person or upon or at any premises is required in
evidence at such proceedings.
(2)
A search warrant issued under subsection
(1) shall require a police official to seize the article in question
and shall to that
end authorize such police official to search any
person identified in the warrant, or to enter and search any premises
identified
in the warrant and to search any person found on or at
such premises.
(3)
(
a)
A search warrant shall be executed by day, unless the
person issuing the warrant in writing authorizes the execution
thereof by
night.
(b)
A search warrant may be issued on any
day and shall be of force until it is executed or is cancelled by the
person who issued it
or, if such person is not available, by a person
with like authority.
(4)
A police official executing a
warrant under this section or
section 25
shall, after such execution,
upon demand of any person whose rights in respect of any search or
article seized under the warrant
have been affected, hand to him a
copy of the warrant”.
[44]
The provisions of
sections 21(2)
and
3
(a) are peremptory with regard
to the police officers to execute the search warrant, the article(s)
to be seized, and the premises
to be searched. It allows
further to search the person appearing on the search warrant or any
other person found to be in
the premises.
Section 3(a)
further
states that the search shall be conducted during the day unless the
search warrant authorizes a night search. This
means if the
search is to be conducted at night the search warrant should spell
that out.
[45]
The issues pertaining to search warrant and the execution thereof was
amply dealt with by the
Constitutional Court of
Minister
of Safety and Security v Van Der Merwe
.
[2]
In summary Mogoeng CJ stated in summary form as follows:
[3]
“
(a)
The person issuing the warrant must
have authority and jurisdiction
(b)
the person authorizing the warrant must
satisfy herself that the affidavit contains sufficient information on
the existence of the
jurisdictional facts;
(c)
the terms of the warrant must be
neither vague nor overboard;
(d)
a warrant must be reasonably
intelligible to both the searcher and the searched person;
(e)
the court must always consider the
validity of the warrants with a jealous regard for the searched
person’s constitutional
rights; and
(f)
the terms of the warrant must be
construed with reasonable strictness”.
[46]
Exhibits “B”, “C”, “D” and “L”
do not comply
with the provisions of
section 21
of the
Criminal
Procedure Act and
the common law requirements. In all the
search warrants, the offences are not clearly defined. They are
vaguely defined.
The offences with which the Accused’s
are charged are not common law crimes. They are statutory
offences which are
premised on the MLRA and the POCA. All the
search warrants do not refer to the relevant statutes let alone the
sections allegedly
contravened. All the search warrants do not
specify the name of the person to be searched. The evidence
indicates that
the police knew at least the people who were targets
of the search beforehand. It was not difficult for them to
either advise
the commissioned officers or Magistrate who granted
them. As they stand, the search warrants did not meet the
requirements
as stated in Van Der Merwe
(supra).
[47]
I found Exhibits “E” and “G” to be valid.
I made such an order
based on the fact that they comply with the
relevant provisions of the CPA. The name of the police officer
authorized to
conduct the search is specified, the statute and
relevant sections creating the offences have been referred to, the
articles to
be searched and the names of the person(s) are spelt out
and the address of the premises. Mr Price further attacked the
quality
of the search warrants, even those issued by the
Magistrates. The criticism by Mr Price is not unfounded.
Mogoeng J
in
Van
Der Merwe (supra)
[4]
speaks of safeguard which should be adhered to in order to ameliorate
the effect of interference with Constitutional rights of
individuals
in the quest to, amongst others, preventing, combating and
investigation of crime. He states as follows:
“
[37]
These safeguards are: first, the significance of vesting the
authority to issue warrants in judicial
officers; second, the
jurisdictional requirements for issuing warrants; third, the ambit of
the term of the warrants; and fourth,
the bases on which a court may
set warrants aside. It is fitting to discuss the significance
of the issuing authority first.
[38]
Sections 20
and
21
of the CPA give authority to judicial officers to
issue search and seizure warrants. The judicious exercise of
this power
by them enhances protection against unnecessary
infringement. They possess qualities and skills essential for
the proper
exercise of this power, like independence and the ability
to evaluate information so as to make an informed decision.
[39]
Secondly, the section requires that the decision to issue a warrant
be made only if the
affidavit in support of the application contains
the following objective jurisdictional facts: (i) the existence of a
reasonable
suspicion that a crime has been committed; and (ii) the
existence of reasonable grounds to believe that objects connected
with
the offence may be found on the premises or persons intended to
be searched. Both jurisdictional facts play a critical role
in
ensuring that the rights of a searched person are not lightly
interfered with. When even one of them is missing that should
spell doom to the application for a warrant.
[40]
The third safeguard relates to the terms of a warrant. They
should not be too general.
To achieve this, the scope of the
search must be defined with adequate particularity to avoid vagueness
or overbreadth. The
search and seizure operation must thus be
confined to those premises and articles which have a bearing on the
offence under investigation.
[41]
The last safeguard comprises the grounds on which an aggrieved
searched person may rely
in a court challenge to the validity of a
warrant. The challenge could be based on vagueness, overbreadth
or the absence
of jurisdictional facts that are foundational to the
issuing of a warrant”.
[48]
It is important further, that the person authorizing the search
warrant must satisfy herself
or himself that the affidavits contain
sufficient information to enable him to find the exercise of the
jurisdictional facts.
Some of the affidavits on which the
search warrants were authorized are lost. I am unable to
pronounce on whether the person
authorizing the search warrants
correctly applied his or her mind in assessing the jurisdictional
facts in some of the search warrants
because the affidavits submitted
in
lieu
thereof
have been lost. However, the converse is true when it came to
Exhibits “E” and “G”.
Captain Erasmus
attributes the correctness of the procedure followed to the new roneo
form which has been developed presumably
because it was premised on
the provisions of the CPA and the
Van
Der Merwe
judgment.
[49]
As stated before, some of the searches were conducted without search
warrants.
Section 22
of the CPA authorizes a police official to
search any person, container or premises for the purpose of seizing
any article if (a)
the person concerned consents thereto or has
reasonable grounds to believe that a search warrant will be issued to
him in terms
of
section 21(1)(a)
if he applies for it and that a
delay in obtaining such a warrant would defeat the object of the
search.
[50]
In respect of the first activity, Renier Ellerbeck was arrested at
Marine Drive without search
and arrest warrants. Sergeant Shaw
was patrolling and pounced upon him committing an offence in the
circumstances described
above. He believed at the time that
Renier Ellerbeck was committing an offence which turned out to be a
correct belief.
He chased and caught up with him. From
the circumstances, it is clear that there was no way that Sergeant
Shaw would have
obtained a search warrant as suggested by Mr Price.
Doing so would defeat the very purpose of seizing the abalone and the
arrest of Renier Ellerbeck. This to me is a classic example of
where
section 22
of the CPA is applicable hence I declared the search
to be valid. I did not base my decision on the search warrant
which
Sergeant Shaw alleged they were armed with but on his testimony
that Accused 3, consented to the search. The evidence of
Sergeant Shaw is confirmed by the evidence of Warrant Officer Dirk.
No evidence was tendered to gainsay Sergeant Shaw, in
this regard.
I accepted his evidence and declared the search to have been lawful
in the circumstances.
[51]
The arrest of Accused 2 and the search of his motor vehicle was also
challenged. Captain
Swanepoel gave hearsay evidence about how
Accused 2 was arrested in Jansenville. He testified that
Accused 2 was stopped,
and his motor vehicle was searched without a
search warrant because the police officers had reasonable suspicion
that an offence
had been committed. Indeed abalone was found
laden in the back of the bakkie. I accept it was hearsay in
terms of section
35(5) of the Constitution. I further accepted
hearsay in respect of his evidence because I was of the view that
doing so
would not render the trial unfair.
Trial
:
[52]
Captain Swanepoel testified that on the day of the arrest of Renier
Ellerbeck he received a cellphone
call from Accused 1. Accused
1 told him that there were people who were driving recklessly on the
Marine Drive. On
25 March 2015 Renier Ellerbeck appeared in
court. He got a message that Ellerbeck wanted to see him.
He met with him
in the police cells. Renier Ellerbeck requested
to meet with him after his release on bail. They eventually
met.
The latter informed him that he wanted to make a clean
breast of the abalone racketeering activites and turn a State witness
against
Accused 1. He laid bare his personal circumstances
especially that he wanted to pay off a motor vehicle that he had just
purchased i.e. an Opel Kadett. He informed him of the
provisions of
section 204
of the
Criminal Procedure Act and
informed
him that it depended on the Public Prosecutor. He informed
Renier Ellerbeck that he has a right to inform his attorney
so that
he may be involved in the process.
[53]
Having discussed the matter with the Public Prosecutor, the charges
were withdrawn against Renier
Ellerbeck with the understanding that
he was to be used as a
section 204
witness against the accused.
A statement was obtained from Ranier Ellerbeck. He explained in
the statement and to Captain
Swanepoel that he was part of a
syndicate which unlawfully poached abalone. He implicated
Accused 1. He explained the
role he played in the commission of
the offences. Renier Ellerbeck further implicated Edgar
Clulow. Renier Ellerbeck
described to him that Edgar Clulow was
responsible for weighing of abalone so that Accused 1 may be able to
know how much abalone,
in terms of weight, each diver harvested and
the amount due to each diver. Once the abalone has been
weighed, it would be
taken by other people to a store house.
The store house was kept a secret from Renier Ellerbeck. All
Captain Swanepoel
got from Renier Ellerbeck was who shall fetch the
abalone and the make of the motor vehicle.
[54]
Captain Swanepoel then wanted to make sure that Renier Ellerbeck was
telling the truth.
He gave him a video camera device to put in
his kitchen where the abalone would be weighed. He showed him
how to operate
the video camera. At a later stage he viewed the
camera with Renier Ellerbeck. I must mention that the recording
was
viewed and the people appearing on it were identified. The
footage unfortunately had no audio. The video footage had
three
recordings which dealt with the second racketeering activity.
[55]
Renier Ellerbeck furnished Captain Swanepoel with the name of Accused
3 and the make of the motor
vehicle he would drive and its
registration number. He described as a white Golf with
registration letters and numbers HFY
607 EC. He informed him
that Accused 3’s name was Brandon Turner. He further told
him that Edgar Clulow who was
identified on the video footage, would
come and weigh the abalone. He would be driving a red Nissan
bakkie. The plan
by Captain Swanepoel was to follow the two
motor vehicles so as to trace where the store house was. They
secretly followed
the white motor vehicle for approximately three
weeks until it was found at 6 Deborah Street in Westering e.g. the
fourth activity.
[56]
Captain Swanepoel testified that when Renier Ellerbeck was arrested,
his cellphone was confiscated.
He decided to apply for an order
to obtain a detailed cellphone billing of Accused 1. The
billing ran into thousands of calls.
However he produced a
synopsis of the cellphone calls between Accused 1 and various other
people of interest in this matter.
Captain Swanepoel testified
as follows regarding the cellphone numbers and who they belong to.
·
078 … belonged to Accused 1.
·
073 … belonged to Renier Ellerbeck.
·
084 … belonged to Accused 2.
·
074 … belonged to Lucy Ellerbeck who is the wife of Renier
Ellerbeck.
·
082 … belonged to Leon Scholtz who is Accused’
s 1
’s
friend.
·
079 … belonged to Tanya Weitz Accused 1’s girlfriend.
·
071 … belonged to Edgar Clulow.
[57]
From the synopsis of the cellphone billing of Accused 1 he produced
Exhibit “P” which
had to do with the third racketeering
activity. Accused 1 phoned Edgar Clulow on 17 April 2015 from
04:58:31. He testified
that Michael Koen and Rynhardt Jonk were
known abalone divers. The latter died of drowning whilst he was
diving. He
testified that when the house of Accused 1 was
searched Captain Erasmus found three bail receipts that reflected
payment paid on
behalf of three abalone divers on different occasions
namely, Nicolaas du Plessis,
Rynhardt Jonk
referred to above and David van der Merwe.
[58]
He was present when a search was conducted in respect of the fourth
activity. A search
warrant that had been obtained got lost.
On 11 May 2015, he and other members of the TTF Unit and members of
the Dog Unit
conducted a search at 6 Deborah Street using the lost
search warrant.
They found Accused 3 and
his wife. Abalone was found. They took photographs hence
Exhibit “R”. A Golf
motor vehicle with registration
numbers and letters as described to him by Renier Ellerbeck was found
at the premises.
[59]
After Accused 3 was arrested, Renier Ellerbeck informed him that
Edgar Clulow was now transporting
abalone. He furnished him
with the make and registration numbers and letters of the motor
vehicle he was using. It
was a white Jetta CSI. They
spotted the motor vehicle on 28 May 2015 and followed it.
Unfortunately they lost it.
They called the SAPS helicopter to
assist them. The helicopter crew directed them to 8 Corbin
Street. They found Edgar
Clulow and arrested him for possession
of abalone.
[60]
Exhibit “S” was compiled by him. It reflected
cellphone calls made from and
between Accused 1 and Edgar Clulow,
Marelise who is the mother of Accused 2’s child, Ermile Dunson,
Renier Ellerbeck, Tanya
Weitz, Danie Gouws who is an attorney, Johny
Schultz and Tommy Lamont who owned the house in 8 Cobin Street
through a Trust.
Lamont further contributed a sum of R160
000.00 towards the bail money of Accused 1.
[61]
Now that the store house at 8 Corbin Street was found, Renier
Ellerbeck informed Captain Swanepoel
that Accused 1 asked him to look
for another store house. Renier Ellerbeck got a house in
Uitenhage but it was never used
by Accused 1. Renier Ellerbeck
was ordered by Accused 1 to start transporting abalone. Captain
Swanepoel rented a car
from a rental company which was fitted with a
tracking device to monitor the movements of Renier Ellerbeck.
He soon told
them about a house at the Department of Correctional
Services. The house belonged to Jannie Smuts (Smuts) who worked
as a
Prison Warder. Renier Ellerbeck informed him that it was a
weigh house.
[62]
The house of Smuts was put under surveillance. Renier Ellerbeck
informed the police about
a white Bantam bakkie with registration
letters CAW. After a few attempts they spotted the Bantam bakkie
collecting abalone from
Smut’s house and followed it to 15
Nassau Street in Kragga Kamma Road. They obtained a search
warrant and Captain Erasmus
executed it and arrested Pierre Scholtz
on 12 July 2015. It is after that incident that Renier
Ellerbeck advised them that
Smut’s house was converted to be a
store. They observed Smut’s house for a few days.
They applied for a
search warrant and executed it. They found
three fridges laid with abalone. Some of the abalone was found at the
backyard
of Smuts. Captain Swanepoel called Mr Dennis Mostert
who is a senior official at DAFF to come and certify the abalone and
in counting it. That was on 4 August 2015 which is the seventh
activity. Smuts was arrested. The search and the
arrest
of Smuts occurred in the presence of two attorneys, Mr Gouws and Mr
Malan de Beer.
[63]
After the arrest of Smuts, Captain Swanepoel compiled a synopsis from
the cellphone billings
of Accused 1. It was handed as Exhibit
“V”. Accused 1’s cellphone number appears as
076 331 72322.
Accused 1 phoned Smuts and Clulow on different
occasions on 4 August 2015. It appears as follows on Exhibit
“V”:
2015/08/14
11:13:17
PM
MS
terminating
SMS
in MSC
Clulow
27633172322
2015/08/04
11:18:37
PM
MS
Originating
27633172322
Clulow
2015/08/04
11:43:26
PM
MS
Originating
27633172322
Clulow
2015/08/04
11:44:52
PM
MS
Originating
27633172322
Clulow
2015/08/04
11:59:43
MS
Originating
27633172322
Clulow
2015/08/04
01:50:35
PM
MS
Originating
27633172322
J
Smuts
2015/08/04
02:36:18
PM
MS
Originating
27633172322
J
Smuts
Captain
Swanepoel testified that he knew all of their cellphone numbers hence
he was able to compile Exhibit “V” from
Accused 1’s
cellphone itemised billings.
[64]
Captain Swanepoel testified about how Accused 2 was arrested by
members of the Crime Prevention
Unit of Graaff-Reinet at
Jansenville. I need not deal with his evidence in this regard
as the arresting officer testified
as is reflected below. He
further submitted the photographs of the incident as Exhibit “W”.
It further
transpires that the motor vehicle Accused 2 was driving
had false number plates. The history of that motor vehicle on
E-Natis
revealed that it belonged to Leon Groenewald who in turn sold
it to Theo Lochner. The motor vehicle therefore belonged to
Theo Lochner. Theo Lochner informed Captain Swanepoel in a
statement he obtained that the motor vehicle was bought from him
by
Accused 1 on behalf of his friends. He traced the registration
documents of the motor vehicle and it transpired that it
was in the
process of being transferred to IP Scholtz. The true
registration numbers of the motor vehicle are DMM 760 EC
according to
the eNatis system and it was in the name of Mr IP Scholtz whose ID
number is 6…. The same ID number according
to Captain
Swanepoel corresponded with the ID number of IP Scholtz of 15 Nassau
Street.
[65]
When Accused 2 was arrested, his cellphone was confiscated. On
the phone, a message was
found which was sent to Accused 1’s
cellphone. It read:
“
54 sakke 912 kg
sonder die punte. Hoor by die ou. Hy moet kyk vir ‘n
blaai. Ek weet nie waar die
ding is nie”.
Literally translated:
“
54 bags 912 kg
without the points. Hear by them, he must just look for the
page. I don’t know where
the thing is”.
[66]
He did the same exercise of going through the cellphone billing of
Accused 1 on 16 August 2015
and found that there was communication
between Accused 1, 2 and Ryno Scholtz who is an attorney of Renier
Ellerbeck. Accused
2 was arrested. He appeared in court
and was released on bail of R10 000.00. The money was received
from Accused 1.
Bail was paid.
[67]
On 28 August 2015, Edgar Clulow was arrested with abalone at 8 Corbin
Street, Sherwood.
The house belonged to a Trust of Tommy
Lamont. Now Eadgar Clulow was represented in the case by Mr De
Beer who worked with
Mr Danie Gouws. Edgar Clulow eventually
pleaded guilty to two counts i.e. the incidents of that occurred on
28 May 2015 and
26 August 2015.
[68]
As stated before they got wind that Accused 2 was to transport
abalone in a Bantam bakkie to
2 Creswell Street. They placed the
house under surveillance and also followed Accused 2.
Furthermore, as a safety valve,
they applied for a search warrant.
On 3 September 2015, they missed Accused 2 on his way to 2 Creswell
house and only saw
him when he was already inside the premises.
Accused 2 left before they could get into the premises. They
found a security
guard by the name of Plaatjies. They found
abalone in a wheelbarrow behind a roll-up door in the house.
The owner of
the property was Emile Donson alias Botter. The
premises were used as a scrapyard.
[69]
On 11 April 2015 there was an explosion at the corner of Lindsay Road
and Buitekant Street in
Neave Township. The property belonged
to WH Parker Property and was leased by Jonathan Peter Fowke.
It exploded because
of a leaking gas stove. It transpires from
the investigations and the items found there that it was used as a
cooking facility
and processing of abalone. Two people
perished. That constitutes the eleventh racketeering activity.
It is common
cause by now that Accused 1 used a Ford Ranger bakkie
that was in the name of Mr Fowke.
[70]
Captain Swanepoel further investigated a Ferrari motor vehicle which
was allegedly driven by
Accused 1 having been financed by Mr Kriel.
During Captain Swanepoel’s testimony a video clip was played
which depicted
a weighing scale and a bag containing abalone.
The video was retrieved from a Blackberry cellphone which belonged to
Accused
1. There was an audio which was taken from the same
phone. There was also a picture of a paper with names, numbers
as well as a column which was Exhibit “DD”.
[71]
Captain Swanepoel was questioned extensively about
sections 20
–
24
of the
Criminal Procedure Act and
what information was missing on
the search warrant like the offences names and talking to Renier
Ellerbeck at court and eventually
in his office after he was released
on bail. He further confirmed that Accused 1 used to phone and
visit him in his office
and he talked about abalone pouching.
He however, stated that Accused 1 gave information only about one
person i.e. Jonathan
Reed and no other. He further confirmed
that the statement of Renier Ellerbeck was obtained on 26 January
2016 before he
got information about Edgar Clulow, Smuts and Van
Zyl. They acted on information received from Renier Ellerbeck
to investigate
the other racketeering activities.
[72]
Captain Swanepoel confirmed that they never found Accused 1 with
abalone. Captain Swanepoel
testified that he did not need to
make an application to the Director of Public Prosecution in order to
set up the cameras at Renier
Ellerbeck’s house because it was
not a trap. Renier Ellerbeck never invited people to come and
commit crime at his
place but had the device namely to prove the
activities that were occurring at his place.
[73]
It was suggested to Captain Swanepoel that he did not know what the
conversation was between
Accused 1 and the 204 witnesses.
Captain Swanepoel responded by saying the 204 witnesses would testify
to that. Based
on the telephone bills, Gouws appears to have
been phoned at the time of the arrest of the 204 witnesses and
Avvused 1 would appear
at the scene. (See: Exhibit “V”
in this regard).
[74]
Under cross-examination by Mr Roelofse, Captain Swanepoel conceded
that his statement seems to
be leaning on the impression that they
were concerned about the premises more that they were about Accused 2
transporting abalone
in a Bantam bakkie. He agreed stating that
his intention were not clearly captured in his statement.
[75]
Captain Swanepoel testified that he met Accused 3 for the first time
on the night of his arrest.
He confirmed informing Sergeant
Shaw that the name of Accused 3 was Turner. He told him the
make, colour and registration
letters and numbers of the motor
vehicle Accused 3 would be driving. He got the information from
Renier Ellerbeck.
It was put to Captain Swanepoel that Accused
3 did not know Accused 1 he only met him in court. He further
confirmed that
from the synopsis there was no contact between Accused
3, Edgar Clulow, Renier Ellerbeck etc. however he insisted that there
was
a cellphone call between Accused 1 and Accused 3 even though it
was not relevant to any of the racketeering activities. He
disagreed with the version of Sergeant Shaw in his affidavit that he
received the information about 5 Nassau Street on 28 April
2015.
[76]
Sergeant Shaw was recalled to testify in the trial. I
incorporate his evidence adduced
in the trial within a trail in
respect of how he arrested Renier Allerbeck at Marine Drive. He
confirmed the evidence of
Captain Swanepoel insofar as the latter met
and discussed with Renier Ellerebeck at the court precinct, which
culminated in the
discussion that lead Renier Ellerebeck becoming a
204 witness. The arrest of Ellerbeck opened the investigation
in the abalone
poaching. He received information from Captain
Swanepoel about a white Golf that was to be used in transporting
abalone from
a house in Algoa Park. He and other members kept
observing the Golf over a long period. After some days they
spotted
it and followed it to 6 Deborah Street. He applied for
a search warrant which was granted. The search warrant was
executed
at night by Warrant Officer Dirk of the Dog Unit. They
knocked and the door was answered by a white female. Accused
3
appeared and gave permission that the house may be searched. In
one of the rooms they found deep freezers. They opened
the
freezers and found bags full of frozen abalone.
[77]
The abalone was weighed by DAFF officials. Its weight was 7.570
units which is 1.125 tons.
He further confiscated cellphones
from Accused 3 and sealed them in a seal bag. He personally
took them to South African
Police Forensic Head, in East London where
information was downloaded. Vicky Swarts, who is a member of
the TTF video recorded
the search and took photographs of what was
seized. Mr Mostert from DAFF was also at the scene.
[78]
In respect of the seventh activity, Sergeant Shaw was part of the
team that observed the house
of Smuts at No. 4 Correctional
Services. They found that there was a 1400 Nissan bakkie that
would take abalone from Smut’s
house to the other side of North
End. He then applied for a search warrant from a Magistrate
which was granted i.e. Exhibit
“C”. He executed the
search warrant on the afternoon of 4 August 2015. He was
assisted by Mr Mostert, Captain
Erasmus and other members of the
TTF. He found Mr Smuts present and bags of abalone were found
lying on the floor, and in
a fridge. Mr Gouws arrived and they
showed him the search warrant. The abalone weighed 3.152 units.
[79]
Sergeant Shaw testified that he traced the motor vehicle which was
driven by Accused 2 at the
time of his arrest in Jansenville.
It turned out that the registration was false. He confirmed the
evidence of Captain
Swanepoel about its ownership.
[80]
Sergeant Shaw got information that 8 Corbin Street was either used to
weigh or to store abalone.
He applied for a search warrant
which was granted. He asked for assistance from Captain Erasmus
and members of the TTF.
They met at Spur Walker Drive.
Whilst still there a white Ford Ranger with registration letters and
numbers FYF 604 EC stopped
across the road. It is the same
motor vehicle that blocked him when he was chasing Renier Ellerbeck
on the Marine Drive road.
A person, identified by Captain
Erasmus as Accused 1 alighted from the motor vehicle. Captain
Erasmus approached Accused
1 and they talked. Sergeant Shaw
drove to 8 Corbin Street. They approached the house with
Captain Erasmus having joined
them. He went round the house and
saw people jumping over the wall. They found abalone lying on
the ground. After
a few minutes other members arrived having
caught the people who had fled the scene.
[81]
On 30 September 2015 Andrew Plaatjies was arrested. He obtained
a statement from him in
the presence of his lawyer. Sergeant
Shaw was cross-examined on the statement/affidavit he made when he
applied for a
section 205
subpoena to obtain cellphone records.
In the affidavit, he reflected that the abalone found at 8 Corbin
Street on the first
occasion was 3000 units instead of 1011. He
was further referred to the indictment where, in activity three, the
amount of
abalone found at 56 Heather Square Garden is 691 units
instead of 4500 units reflected in his affidavit in terms of
section
205.
He was further referred to his statement dated 10 October
2016 where he noted that at Smut’s house 3156 units were found
instead of 3152 units. He ascribed the discrepancies to be a human
error. Mr Price put to him that he was not a trustworthy
witness and those were not errors but meant to mislead the court.
[82]
Sergeant Shaw was further criticized for not having warned Renier
Ellerbeck of Judges Rules 2.
He was further asked whether
Renier Ellerbeck waived his rights to legal representation and to
remain silent. Sergeant Shaw
testified that when he asked him
about those two rights, Renier Ellerbeck answered “ek verstaan”
meaning I understand.
In his understanding, Renier Ellerbeck
did waive his rights.
[83]
In respect of his involvement at 6 Deborah Street, he stated that he
followed the white Golf
from Cape Road to that house. He parked
at a distance walked to No. 6 and heard doors being slammed and
realised that it
was the store house they had been looking for.
That was the third occasion he had been following the Golf. On
the first
occasion the Golf managed to evade him. He did not
see who was driving the car and whether it had passengers or not.
He only saw Accused 3 for the first time on the day of his arrest.
[84]
Sergeant Shaw testified that what appears in his statement (that he
received information that
abalone was kept at 6 Deborah Street) was
wrong. He only got information that the house was in the area
of Westering.
He only described 6 Deborah Street on the third
occasion. He stated that he was not misleading the Magistrate
by what appeared
in his statement about the address. The
version of Accused 3 was put to Sergeant Shaw that Accused 3 was not
the occupant
of the house where abalone was found. Sergeant
Shaw disputed that alleging Accused 3 had the keys to the garage.
Accused
3 further did not tell them that he was not the occupant
thereof.
[85]
Capt. Erasmus
is a bomb technician, Inspector of explosives
and investigating of all explosive related incidents. He
received his training
from the Scotland Yard, military as well as
SAPS. He has been in the service for more than thirty years.
[86]
Captain Erasmus
testified about the fifth activity which
involves Edgar. It occurred on 25 May 2015 at 8 Corbin Street,
Sherwood. He
testified that he received information from
Captain Swanepoel that there was a white Jetta motor vehicle with the
following registration
number BCL 444 EC that was transporting
abalone to a weigh station. The vehicle was spotted and
followed by a group of other
police officers involved in the
investigation including himself. They even made use of a
helicopter to track the motor vehicle.
The motor vehicle was
traced to 8 Corbin Street in Sherwood. He was amongst the first
police to arrive at the specific address.
As he entered the
yard he saw Edgar alighting from the vehicle. They both knew
each other. Edgar appeared to be very
nervous. He
informed him that he was aware that he was transporting abalone and
requested to search his motor vehicle.
Edgar agreed and opened
the motor vehicle including the boot. Inside the boot he found
abalone packed in blue chokka bags.
He subsequently informed
him of his Constitutional rights. He was placed under arrest.
Immediately as they were still
busy with the vehicle taking
photographs, Malan De Beer arrived at the scene. Mr De Beer
advised Edgar of his Constitutional
rights and told him to keep
quiet. They summoned Mr Mostert from DAFF to identify and help
in weighing the abalone.
Mr Mostert, in the presence of Edgar
counted the abalone and placed it in evidence bags. It weighed
1011 units. On
arrival at the police station before he was
detained Edgar was advised of his Constitutional right as contained
in SAP 14A form.
[87]
On 12 July 2015, they received information that there is a motor
vehicle which is going to be
transporting abalone to 15 Nassau
Street, Kragga Kamma. They applied for a search warrant which
was granted. They observed
the house. He saw Mr Scholtz
driving into the property. He waited for a short while and then
followed him into the
property. He intended to observe whether
Mr Scholtz is not going to offload abalone from his vehicle. He
announced
his presence whilst he was at the gate. No one responded.
He pushed opened the gate and entered the premises. He went
to
the front door and knocked. There was no response. He
felt the door. It was not locked. He shouted announcing
his
presence saying it is the police please open the door. Even
then no one responded. He pushed the door open.
He saw Mr
Scholtz coming out of the bathroom with a towel wrapped around his
waist. He informed him that he had a search
warrant for the
premises as they suspected that there was something which was
illegally stored in the premises. He entered
the house and met
Mr Scholtz on the hallway of the house. He could smell the
abalone because it has a distinctive smell.
As he was
approaching him he saw on his left a door leading to the garage.
He saw wooden crates that were stacked on top
of each other and
behind them there were two large chest freezers. Then he
suspected that definitely that there was abalone
in the premises. He
advised Mr Scholtz of his Constitution Rights. Mr Scholtz
preferred to keep quiet and not to respond
to his questions. Mr
Scholtz turned around and proceeded to his bathroom and started to
pack his clothing in a small bag.
He asked him what he was
packing. Mr Scholtz responded “I know that you going to
take me with”. He then
seized two of the cellphones which
he was carrying.
[88]
On entering the garage he realised that there was actually three
freezers. He requested
Mr Scholtz to open the freezers to which
he obliged. Two of the freezers contained abalone. He
then summoned Mr Mostert
to come and check the species of the
abalone, count and weigh it. At all material times when he was
involved with the accused
he was busy taking photographs.
Thereafter, he arrested Mr Scholtz for illegal possession of abalone
which weighed 1618 units.
[89]
He testified that they got information about the house of Smuts at
Correctional Services.
They surveyed the house for quite a
while. He was also involved in the surveillance of the house.
At times he would
see Accused 1 and Accused 2 arriving at the house.
They would off-load abalone. Accused 1 would leave Accused 2
apparently
weighing the abalone. Accused 1, according to him,
would leave Accused 2 there and take a block watch. Accused 1
would
then come back and pick up Accused 2. The latter would be
in possession of a scale. He observed that there was a red
Nissan bakkie which would get to the property to pick up abalone and
transport it to another vehicle which would then take over
the
abalone and go with it. At times they would follow the red
Nissan bakkie to 2265 Kragga Kamma Road, those being the premises
Mr
Neels Hattingh.
[90]
Captain Erasmus testified that he was involved in racketeering
activity nine that occurred at
8 Corbin Street where Edgar was
arrested with 291 units of abalone without a permit. They got
information that there was
abalone coming through to Edgar’s
home. They combined their operations based on that information
and gathered at an
open area across Spur Restaurant at Walker Drive.
They spotted the motor vehicle. He saw Accused 1 across the
Street.
He decided to drive across to keep Accused 1 busy so
that he could not see his members who had gathered across the road.
They wanted to execute a search warrant. He stopped next to
Accused 1. Accused 1 alighted from his vehicle and he was
followed by his fiancé. He parked in such a way that he
would obscure his view of the members. On realising
that all
the members had despatched he left and drove off. He drove away
from Corbin Street to disguise his movement and
then took another
turn to the same house. He drove to the back of the property.
As he drove round he spotted people
weighing abalone. The boot
of the Jetta was opened. Amongst them he recognised the two Clulow
brothers. They ran and
jumped over the fence. He phoned
his members and informed them of what they were wearing and the
direction they took.
They were apprehended and took back to the
scene. Photographs were taken.
[91]
Captain Erasmus testified about racketeering activity eleven which
took place on 11 April 2016.
That is where the explosion
occurred and two foreign nationals were killed. For the reasons
which are going to follow below
I shall not delve much on this
activity. Suffice for me to say that he discovered that it was
an explosion which was due
to a gas leak when abalone was processed.
In other words it was a processing plant where abalone was cooked and
dried.
It is further apparent from his evidence that the
property was leased out to Mr Fowke. He testified that one of
the bakkies
which was used by Accused 1 belonged to Mr Fowke.
Accused 1 was leasing a property belonging to Mr Fowke which was in
Jeffreys
Bay at some stage. I shall not deal with the incident
which occurred between Accused 1 and Captain Erasmus at Jeffreys Bay
for it is not relevant to the present matter.
[92]
On 28 June 2016, Captain Erasmus together with other members of the
Task Team visited the house
of Accused 1 with the purpose of
executing search and arrest warrants to him. On arrival they found
two cellphones which were in
possession of Accused 1 and the third
one was given to him or found at the house of Accused 1 by other
members. Inside the
kitchen area they found money, steroids,
documentation like bail receipts for abalone divers, numerous vehicle
registration certificates
and ownership certificates of vehicles.
His attorney Danie Gouws arrived. He showed Mr Gouws both
warrants. Mr
Gouws scrutinised them and did not comment.
He remained throughout the search up until they took Accused 1 to the
police
station.
[93]
Captain Erasmus was cross-examined at length about whether he had
advised all the arrestees that
is Edgar, Smuts and all those whom he
arrested advised of their Constitutional rights. He confirmed
having done so.
The same obtained to the cross-examination of
Edgar, Smuts, Renier Ellerbeck and others about whether they were
advised of their
Constitutional rights prior to them being arrested.
Captain Erasmus was informed that Edgar had told the court that he
would
not have co-operated with the police had he known that the
search and his arrest was unlawful. Captain Erasmus insisted
that
the people concerned had consented to the search without
insisting on a warrant. He further conceded that most of what
he
testified to about observing Accused 1 and Accused 2 at various
places especially that of Smuts do not appear on his statement.
He testified that it was not necessary for him to reduce everything
in writing. The reason being that he did not effect an
arrest.
If there was an arrest due to that surveillance then he would have
reflected that information in his statement.
But for the fact
that no arrests were effected then he did not see a need to reflect
that in his statement.
[94]
Mr Price pointed out to Captain Erasmus that in all the statements
which he made he never mentioned
the involvement of Accused 1.
Captain Erasmus confirmed that there is no mention of Accused 1 in
all his statements.
[95]
Captain Erasmus stated that all that they gathered from their
surveillance and investigations
was communicated to Captain Swanepoel
who was the investigating officer. They would verbally discuss
everything in a meeting
pertaining their surveillance and
investigations. He further conceded that he never put down in his
statement that he pretended
at some stage to be withdrawing money
when Accused 1 came to check who was driving the motorcycle. He
further confirmed that
it does not appear in his statements that when
they came to arrest Accused 1 the latter volunteered his cellphones
and gave them
to him.
[96]
Under cross-examination he narrated an incident where there was a
fight between Accused 1 and
another person. One Garth Du
Plessis (Duppie) was shot and killed. He attended to the scene
to investigate who shot
at him. He approached Accused 2 to find
out who shot Duppie because it was alleged that Accused 2 was at the
scene when he
was shot dead. He tried to convince Accused 2 to
reveal the name of the person who shot the deceased. Accused 1
arrived
at the scene. He warned both Accused 1 and 2 that they
must decease from engaging in unlawful abalone activities because
they would go to jail for a long time. He gave a choice to
Accused 2 to either be on the side of the police or on the side
of
Accused 1 and if he chooses the latter then he must know that he is
going to be in trouble and that would result in him going
to jail for
a long time. He further testified that Duppie was a known
abalone poacher.
[97]
Dennis William Mostert
is a chief inspector for DAFF and is
based in Port Elizabeth. He was 37 years with the Department,
27 years of which he was
involved in abalone anti-pouching
operations. He was enforcing the provisions the MLRA. He
went home in explaining
how it came about that abalone harvesting was
prohibited from 2003 and 2008. He explained the structure of
those cartels
as dealt with in the evidence of other witnesses.
[98]
He testified that depending on the size and colour of abalone, divers
get paid up to R600.00
per kilogram. The kingpins depending on
whether the abalone is processed, dried and the dollar exchange rate
would get between
R2000.00 and R5000.00 per kilogram. It is
mainly taken to the Far East. In response to question he testified
thus:
“
My Lord, abalone
is one of the top five seafood dishes in Asia. It is well
sought out among those communities, they believe
that it reduces
senility and it enhances fertility and also if you can dish up
abalone at an Asian table, it is a matter of class,
status, that you
can actually afford such a dish to your visitors and it is also used
for ceremonial use, maybe a wedding or the
birth of a child.”
[99]
He further testified that South African abalone i.e. Haliotis Midae
is the world sought after
species of abalone and is commercially
viable. Mr Mostert spoke about areas along the South African
coast particularly Schoemakerskop
to Cape Recife. They seed
abalone in that area. The small abalone is placed back into the
ocean to stock up the depleted
areas. They would allow the
abalone to grow for a period of seven to eight years so that each may
reach the legal seize of
114 millimetres before it can be legally
harvested.
[100]
DAFF officials have to visit the crime scene, certify the abalone,
weigh it and value it. A company called
Wild Coast Abalone was
employed to look after the ranching areas. In turn, it employed
a security company called TTA.
He testified that once abalone
is confiscated it gets counted, a receipt issued and taken to Cape
Town where it is stored until
it is auctioned.
[101]
He testified that DAFF members like Mr Ngcebetsha, Mrs Hoza and
himself attended the various places where abalone
was found. He
stated as follows about the value and weight in respect of the
various activities:
171.1 In respect of
the first activity the units found are valued at R37 800.00.
171.2 The third
activity valued at R44 700.00.
171.3 The fifth
activity valued at R 78 600.00.
171.4 The sixth
activity valued at R 98 400.00.
171.5 The seventh
activity valued at R204 600.00.
171.6 The eight
activity valued at R471 480.00.
171.7 The ninth
activity valued at R 20 400.00.
171.8 The tenth
activity valued at R63 600.00.
[102]
He mentioned that DAFF official’s seldomly applied for search
warrants because they pursue abalone poachers
once they are spotted
with abalone. They would not have time to approach the relevant
officials to obtain search warrants
because they would be in hot
pursuit of the poachers. He further testified that members of
the TTA would not have the same
arresting and search powers as he
had. He said they:
“
can only
basically work in the presence of a permanent member who happen to
be, it is in terms of supervision, accountability and
monitoring the
duties. It is not similar to the police reservist system but we
have strict control over our honourers; they
work with us in the
field and they do valuable work, they are also the eyes and ears of
the Department. . . .
If anybody is stealing or
poaching abalone in the ranching area, I am of the view that officer
can apprehend that person, whether
it is for common theft and then
contact DAFF to bring charges under MLRA, they are within their
rights.”
He
categorially stated that Mr Swartz was not allowed to enter a house
and search abalone.
[103]
Constable Romano Clinton Spanneberg
worked for the Dog Unit.
His dog was trained to detect threatened marine species like smelling
of abalone, crayfish and Elephant
tusks and Rhino horns. On 11
May 2015 he and his dog were part of the team of investigators that
searched No. 6 Deborah Street.
He was asked by Warrant Officer
Dirk to go to that house with his dog.
[104]
On arrival Warrant Officer Dirk spoke to Accused 3 who had answered
the door. He asked for permission to
search the house and he
(Spanneberg) asked from Accused 3 to use his dog to search the motor
vehicle and the other areas.
It was a white Golf. When
Accused 3 agreed, he caused him to sign and acknowledge consent in
his pocket book. He asked
if the motor vehicle was his.
Accused 3 confirmed and granted permission to search the motor
vehicle as well. Accused
3 unlocked the motor vehicle for him
with the key he had in his possession. He conceded that
information did not appear in
his written statement. He forgot
to mention that.
[105]
Constable Spanneberg then took the dog to the motor vehicle. It
barked when it got to the boot thereafter
he directed it to the
garage door. The dog scratched the garage door. Both were
signs that there was abalone which
was in the motor vehicle and
garage. Accused 3 went to fetch a key and he unlocked the
garage door. In the garage they
found deep freezers which
contained bags full of abalone. The bags are shown in images
appearing on Exhibit “R”.
He saw the search
warrant. He did not scrutinise it.
[106]
It should be noted that Jean-Pierre Van Zyl refused to testify
because he felt by doing so, he would put his life
in danger.
He was excused from testifying.
[107]
Thomas George Swartz
works for the TTA and was responsible for
the protection of Marine Species including abalone from Cape Recife
to Schoenmakerskop.
He testified that the TTA was undersigned
by the DAFF. They were vested with rights to arrest abalone
poachers. He
was a Commanding Officer in TTA. They set up
a data base and would take photographs of the area, patrol, follow
certain people
who were suspected to be poachers and who had been
arrested before by members of the South African Police. The
company he
worked for was Wild Coast Abalone. They placed the
house of Van Zyl i.e. 56 Heather Garden Square under surveillance a
day
before Van Zyl was arrested. On the day of arrest, he found
abalone in a Golf motor vehicle. Mr Van Zyl came out of
the
house and he placed him under arrest for possession of abalone.
Two other escaped and were never apprehended. He
searched and
seized the abalone without a search warrant because he believed he
had a right to do so because an offence had been
committed in his
presence.
[108]
Warrant Officer Shane Bosch
testified that he worked under the
Organised Crime Unit (OCU). In July 2015 he was asked by
Captain Swanepoel to do observation
duties at the Correctional
Services i.e. the house of Smuts. He did so in the evening.
He used his motorcycle.
He was with Warrant Officer Wait.
They were asked to look out for a white Bantam bakkie. After
about an hour and a
half they spotted the bakkie reversing into the
property. It was in the property for about ten minutes.
It drove away
thereafter. They followed it to 12 Nassau
Street. It got into a garage. After ten to fifteen
minutes it drove
away. He could not take down its number plate
because of the distance he kept and did not see who the driver was.
However
they showed the house at Nassau Street to Captain Swanepoel.
[109]
Warrant Officer Wait
testified that he was asked by Captain
Swanepoel to be on the lookout for a white Jetta and also to keep
surveillance on a house
at 8 Corbin Street. He should follow
the Jetta when it leaves that house. He spotted the Jetta
coming to the house.
It was there for a short while and left.
He followed it. It was between 9 am and 11 am. It took
the direction
of Sherwood. He lost it while he was in Corbin
Street. He telephoned Captain Swanepoel and told him.
There was
a police helicopter which seemingly spotted where the Jetta
was. It turned out that it was at a house which was twenty to
thirty meters from where he was. At the house he found Captain
Erasmus and his team. He confirmed the evidence of Warrant
Officer Bosch in so far as the white Bantam bakkie was followed in
all material aspect.
[110]
Nicky Erasmus (Nicky)
is the son of Captain Erasmus.
During the relevant period he was employed by the TTF and operated
along the Marine Drive
preserving abalone. They provided
security to the project of preserving abalone along the Coast.
He was appointed by
DAFF as an honorary Marine Conservation Officer.
His appointment card expired on 31 May 2015. They were
appointed in
terms of
section 9(2)
of the
Marine Living Resources
Act, Act
18 of 1998 as a honorary fishery control officers.
They were given appointment cards. His understanding of the
powers
vested in him, he was empowered to enter any vessel, vehicle,
aircraft, and premises without a warrant if he had reasonable grounds
to believe that the MLRA has been contravened. He was further
allowed to gather evidence in respect thereto without a warrant.
His offices were situated at Cape Recife Light House. For the
first two months of his appointment he together with his colleagues,
took photographs and videos of people who were involved in abalone
poaching. They developed data of such people in their
system.
He explained the hierarchy of abalone poachers starting from a
gardjie up to the kingpin who runs the cartel.
I have already
dealt with this before and therefore there is no need for me to
repeat it. Once a person is caught poaching,
they would contact
members of DAFF who would come and take over the scene together with
the arrested persons. The police
would also get involved.
Once the DAFF and the police arrived they would hand over the scene
to them together with whatever
was impounded.
[111]
Nicky knew Accused 1 very well because they met a long time before
whilst he was still a bouncer at one of the
local Night Clubs.
They developed a relationship. He further testified that he
also knew Accused 2 from along Marine
Drive. Accused 2 would
normally drive Accused 1’s bakkie. He testified that
Accused 1 would suddenly be at a
scene when poachers were arrested.
Accused 1 would be enquiring about the diving equipment which the
divers used.
[112]
It also transpired that Accused 1 was in communication with Nick on
whatsapp. That period stretched from
January 2015 to about
April 2016. He made it a habit that he would go to his office
download all the whatsapp messages to
his laptop for safe keeping.
He did so because of the nature of the conversations and for record
purposes as well.
He testified as follows in this regard:
“
I am in the
security doing the law enforcement against poaching, my Lord, and
having conversations with Mr Brown, I thought
it was just in my
best interest to keep it so I have got it on record, my Lord.”
(Sic)
[113]
When Accused 1 was arrested he downloaded the whatsapp conversations
which he had with him and handed them over
to the investigation
officer. He started downloading the conversations from 23 May
2015 to 31 August 2015. From the
transcript, he excised only
those which he thought were relevant to the investigation of this
matter. The messages are quite
vast and have been captured on
record. I shall not deal with them as they appear for reasons
that it is general conversation
between Accused 1 and Nicky
pertaining to people who were abalone poachers and those people who
were owing money to Accused 1,
vehicles and the like which he had
bought on behalf of some of the abalone poachers. It further
communicates that Accused
1 was loaning boats as well as diving
equipment to abalone poachers. What further transpires from the
messages is that Accused
1 intimated to Nicky that he was a police
informer. Nicky confirmed that Accused 1 had given him useful
information pertaining
to some of the abalone poachers. He
confirmed that all the information which appears on the whatsapp
messages had nothing
to do with Accused 1 being involved in abalone
poaching. At some stage I enquired from Nicky why would Accused
1 confer with
him in such a manner pertaining to the illegal poaching
of abalone well knowing that he was involved in law enforcement along
the
Marine Drive especially with respect to abalone poaching.
He answered that he had no idea why Accused 1 was speaking to him
along those terms. He further testified that he knew that
Accused 1 was involved in abalone poaching. However, at that
stage, he did not know that Accused 1 would be arrested and stand
trial for abalone poaching. He testified that he did not
know
what racketeering, money laundering and anything like that was at the
time he conversed with Accused 1. He did not record
the
messages in order to implicate Accused 1 because he knew at the time
that Accused 1 did not come into contact with abalone.
He
testified that at some stage during the conversations he advised
Accused 1 to stop living the kind of life and start a family.
[114]
Nicky testified that Accused 1 used or changed his cellphone numbers
very frequently. Testifying in detail
about the video which he
took at the Noordhoek Ski Boat Club on the Marine Drive, he stated
that Accused 2 arrived at the scene
driving a white Ford Ranger
bakkie which belonged to Accused 1. At the time he had arrested
some of the abalone poachers.
Subsequent to that Accused 1 also
arrived at the scene as seen on the video. He testified that
Accused 1 was concerned about
the diving gear and remained there
until the counting of the abalone and its weighing was done.
[115]
Nicky testified that he was involved in investigating racketeering
activity 3 which took placed on the 16 and
17 April 2015 in respect
of 56 Heather Garden Square, Forest Hill where JP Van Zyl was
arrested. On that day they were
observing a red Kombi
which was used to drop off divers along Marine Drive during the day.
The red Kombi at the time was
driven by Accused 3. After
dropping the divers he followed the Kombi to Heather Garden Square
address where the divers were
dropped off by Accused 3. They
remained observing the house throughout the night up until the early
hours of the morning
when he handed over the observations to Swarts.
On his way home he received a cellphone call from Swarts informing
him that
a blue Citi Golf was at the house. As a result of
further information he received from Swarts, he made a U-turn and
went
back to 56 Heather Garden Square house. On arrival he
found JP Van Zyl having been arrested. When scouting the area
he saw a red Nissan bakkie parked along the street a few meters away
from the house. Since he knew the bakkie from his observations
he went and took out a router from the distributor in order to
immobilise it.
[116]
Nicky was also involved in the incident at 8 Corbin Street on 28 May
2015. On that day they received information
from Captain
Swanepoel about a Jetta vehicle which was conveying abalone. He
and the police followed the Jetta and with the
assistance of a police
helicopter the Jetta was found at 8 Corbin Street.
[117]
He further made observations of the house of Smuts in respect of
activity seven. He was present when Smuts
was arrested at his
house at Correctional Services precinct.
[118]
Nicky further testified that in respect of Accused 2’s arrest
at Jansenville, he was informed by Captain
Swanepoel that he must go
to Jansenville because there was information that Accused 2 had been
arrested there. Indeed he
went to Jansenville and found that
Accused 2 had been arrested. On 30 September 2015 in respect of
activity ten they got
information about a Bantam bakkie which was
conveying abalone to 5 Creswell Street. They set up an
observation post and he
was stationed at Sidwell Pick ‘n Pay or
Spar on Commercial Road. He also had members watching the
property across the
road. He got information that the Bantam
bakkie was spotted entering the premises at Creswell Road and he
drove there.
It was in the evening. As he turned into
Creswell Street he saw the white Bantam bakkie coming out of the
premises. He identified
the driver as Accused 2. He was able to
see him because his headlights shone directly at the vehicle and he
saw Accused 2
driving out of the premises. He drove into the
premises and found one Plaatjies who had already been arrested.
Abalone
was found in a wheelbarrow.
[119]
Under cross-examination by Mr Price he admitted that from the
whatsapp messages, he selected only those which
referred to abalone,
the kilograms’ and the weight of the abalone. As alluded
to he stated that Accused 1 never admitted
being involved in the
abalone poaching himself. He further confirmed that Accused 1
informed him that he had been an informer
for many years informing
for Rhino crime intelligence unit. He further confirmed in the
conversations that Accused 1 had
provided Captain Swanepoel with
information about a commission of certain offences. He conceded
that he had made a mistake
when he said in his evidence in chief that
he found Accused 2 on arrival at the Noordhoek beach. He
changed to say that as
he had given chase to some of the divers in
the bush, on his return he saw Accused 2 loading diving equipment.
As he was
approaching the place Accused 2 drove off. He further
admitted under cross-examination by Mr Roelofse that he was quite a
distance away from Accused 2 to have seen or heard that he was
phoning Accused 1 to come to the scene. However, he insisted
that he did speak to Accused 2 even though he can’t recall what
they talked about at Noordhoek.
[120]
Nicky was further questioned about the incident at Creswell Street as
to how he managed to identify the person
who drove out of the
property as Accused 2. He testified that as they were about to
pass each other both their windows were
rolled down and had eye
contact with Accused 2. He was questioned about why he did not
mention that in his evidence in chief.
[121]
Dharmesh Kanty
was called in his capacity as the manager of
the Law Enforcement Department of MTN network. He qualified
with a B.Com degree
from Unisa and a diploma from Cambridge
University in London as a fraud specialist. He received
extensive training within
the cellphone industry on how the network
operates. He has been with MTN for twenty one years at the time
of his testimony.
The nature of his work is that they provide
specialist services to Law Enforcement Agencies throughout the
country. He usually
receive a
section 205
subpoena via courts,
which would need to be authorised by a magistrate and a prosecutor.
Once authorised he would access
MTN’s systems via a unique
username and password. The system would give him a gateway to
all the data that is held
within MTN. He explained how the
system worked in three different levels. He would then insert
the IMEI number of the
cellphone in question based on the
section
205
, put in the data range and whatever additional information
requested. Whether it is cellphone records, RICA information or
a handset profile. He would insert that information, submit the
query and a few minutes later he would receive a notification
that
the query has run and it is complete. Once it is complete, he
would access the records and insert the CAS number as
well as the
technical support unit reference number. He would encrypt the
file and send it back to the technical support
unit to process it on
to the relevant investigating officers.
[122]
Kanty testified that in an excel format the investigating officer is
able to analyse the data or manipulate it
based on whatever he wants
to analyse on the data. In this instance he was asked to
provide the court with locations of certain
cellphone towers for
purposes of understanding some of the issues raised in this matter.
He prepared six maps in relation
to his brief. In the first
map, he indicated that Cradock Place would be serviced by the Korsten
ATC and when the cellphone
moves away, it shall also be connected to
the Port Elizabeth Korsten ATC. He testified that when the
cellphone moves away
from Cradock Place, it could be picked up by
either Marine Drive or UPE building which are far away from it.
The reason,
so he testified, is that the coverage is wide because the
area is not built up.
[123]
The second map deals with Santorini Townhouse Complex which according
to him is serviced by the base stations
namely, Petro Port Salford
Flats, Kwantu Towers and Victoria Park Sports Club. He also
dealt with base stations from Faraday
Street in Uitenhage past
Despatch and up to Jansenville. Those were Torego Flats in
Uitenhage, Rus-Oord Farm, Narsh Farm
VC then ending up in
Jansenville. He further testified that a tower in Central
Business District (CBD) areas covers a 500
meter radius all round, in
urban areas 3.5 kilometres and in rural areas 33 kilometres.
[124]
Charmaine Bosch
testified that she is a Warrant Officer in the
SAPS attached to the Director of Priority Crime Investigations,
Serious Organised
Crime Unit in Port Elizabeth. She has twenty
six years of experience. Her portfolio consisted of various
functions.
She assisted with project related investigations,
does criminal profiling, identify offenders, upkeep of various
statistical records
on trends and projects, assisting investigating
officers with analysis and interpretation of cellphone records.
[125]
She testified that she received training in sophisticated software
program analyses notebook. She utilises
software to navigate
through large volumes of data such as bank statements and cellphone
records to highlight patterns, linkages
and association between
entities. The cellphone summarises data in various visual
formats that are easy to understand.
The software is accurate
and does not interfere with the data integrity.
[126]
On 18 September 2017 she received a request from Captain Swanepoel to
assist him with the analysis of cellphone
call records. She
received a detailed billing from him that was obtained via
section
205
applications in electronic format. She extracted the
following numbers from the data and compiled her report based on
them:
·
078 … – billing period – 1/03/2015 until
8/11/2015.
·
073 … – billing period – 1/03/2015 until
22/03/2015.
·
071 … – billing period – 1/04/2015 until
26/08/2015.
·
063 … – billing period – 1/07/2015 until
1/06/2016
·
073 … – billing period – 1/04/2015 until
31/08/2015
·
For
purposes of this judgment it should be noted that the number which
ends with 0481 is said to belong to Accused 1, ending 0576
belongs to
Renier Ellerbeck, ending 22000 belongs to Edgar Clulow Junior, ending
2322 also belongs to Accused 1, ending 3270 belongs
to Reinett
Ellerbeck. She was also supplied with the following number 079…
which it was alleged belonged to Tanya
who is the fiancé of
Accused 1.
[127]
Her first task was to determine and highlight the most frequent
numbers that phoned each other during the said
period. Further
for purposes of this judgment I shall refer to people instead of the
cell numbers. During the period
she discovered that Accused 1
phoned Edgar 755 times. Edgar phoned Accused 1, 313 times.
In total they phoned each
other 2068 times during the period
aforementioned. Secondly, Tanya phoned Accused 1, 609 times and
Accused 1 phoned her 59
times totalling 678 times during the period.
Accused 1 from the number ending 2322 phoned Junior 186 times.
Accused
1 from the number 2322 phoned Tanya 235 times and Tanya to
Accused 1, 18 times. In total they phoned each other 353 times
during the said period.
[128]
She found that on 22 March 2015 between the period 11:16 and 15:54
there were eight instances of communication
between Tanya and Accused
1. The tower which was activated during those calls is the
Korsten ATC base station. She
further testified that at 12:16
Tanya received a call from Accused 1 whilst receiving reception from
the UPE building based station
in Summerstrand. That is
approximately 13.17 kilometres away from Korsten ATC based station.
At the time Accused 1
received reception from Kabega CCBQEBERA CC
based station in Walmer. At 12:39 Tanya called Accused 1 whilst
receiving reception
from the Marine Drive base station. The
distance between the Marine Drive base station and UPE building base
station is approximately
8.99 kilometres. At 12:15 Tanya phoned
Accused 1 whilst receiving reception from Charlo base station.
No information is displayed
on the detailed billing of the number of
Accused 1.
[129]
At 13:44 and 13:48 Tanya received reception from the Korsten ATC base
station and Accused 1 activated the Petro
Port base station situated
in PE Harbour at 13:35 and 14:04.
[130]
At 15:38 Tanya received a call from Accused 1 whilst receiving
reception from Marine towers Summerstrand base
station. At the
time Accused 1 activated the UPE building base station. The
distance between Petro Bay station and
UPE building is 5.57
kilometres.
[131]
At 15:52, 15:53 and 15:54 there was an exchange of telephone calls
between Accused 1 and Tanya both numbers activated
the Marine Drive
base station.
[132]
At 15:56 Accused 1 activated the UPE base station at 16:03, the Cape
Marine Flats based station in Summerstrand
from 16:07, up until
16:19, and at 16:27 the Ibayi Town Council Building. Using a
GPS co-ordinated on Google F she was able
to come up with the
following distances, Petro Port base station to Santorini is 1.07
kilometres, Kwantu towers base station to
Santorini is 600 meters,
Salford Flats base station to Santorini is 900 meters.
[133]
In conclusion, according to the detailed billing of 22 March 2015
between 11 and 15:30 Tanya did not activate
the base station in Algoa
Park. The closest tower she activated was the Korsten ATC base
station which is approximately 1.5
kilometres away from Algoa Park.
Again Tanya received reception from the Marine Drive base station on
two occasions from
15:34 until 15:39 and from 15:52 until 15:54.
[134]
On the same date Accused 1 activated the Marine Drive base station
from 15:51 until 15:54.
[135]
She was further tasked to establish whether there was any telephonic
communication between Accused 1 and Junior.
If so to highlight
the number of communication that was between them for the period from
04:00 until 07:30 am. Furthermore,
she was asked to check if
there is any evidence in the detailed billing to suggest that their
cellphones activated the base stations
in Forest Hill and North End
area during the above time period and to highlight and compare the
base stations the two numbers activated
during that period.
[136]
She concluded that on 17 April 2015 between 04:58 and 07:30 Junior
and Accused 1 had 11 instances of communication
between them.
[137]
On the same date at 04:58 and 04:59 Junior received a phone call from
Accused 1 whilst receiving reception from
Laerskool Môrewag 2
base station situated in Kensington. At the time Accused 1
received reception from Kwantu towers
base station and Salford Flats
base station.
[138]
At 05:28 Junior received another incoming call from Accused 1 while
receiving reception from Forest Hill EEAS1
base station. At the
time Accused 1 activated Kwantu towers base station. The
distance between Laerskool Môrewag
and Forest Hill EEAS1 base
station is approximately 6.08 kilometres. An hour later at
06:28 Junior received reception from
Mopanie EAS3 base station
situated at Forest Hill. At the same time Accused 1 received a
text message from Junior and activated
Kwantu tower base station.
The distance between Mopanie EAS3 and Forest Hill base stations is
900 meters.
[139]
At 06:28 and 06:29 Junior activated Forest Hill EAS1 base station.
At the time Accused 1 received two more
text messages from Junior
still activating Kwantu base station. At 06:37, 06:49 and 06:41
Junior received three incoming
calls from Accused 1 activating the
Mopani ES base station. At 06:37 Accused 1 activated Kwantu
tower base station, at 06:49
the petro base station and at 06:51
Victoria Parks Sport Club base station. Victoria Park Sports
base station is 1.71 kilometres
away from Mopani EAS3 base station
and 1.07 kilometres away from Santorinie Townhouse complex. At
07:01 and 07:09 Accused
1 received reception from Trust North End
base station. At 07:21 Junior received an incoming call from
Accused 1 whilst receiving
reception from North End Lake EAS2 base
station which is situated 1 kilometre away from Laerskool Môrewag
base station.
At the time Accused 1 activated Salford Flats
base station.
[140]
She concluded that on 17 April 2015 between the time period 04:00 and
07:30 Junior received reception from two
base stations in Forest Hill
area from 05:28 until 06:52. At 07:20 he received reception
from a base station situated in
North End. For the same time
period Accused 1 did not register base stations in Forest Hill area.
At 07:01 and 07:09
Accused 1 received reception from Trust Bank North
End base station.
[141]
She was further tasked to check communication between Accused 1’s
number which ends with 322 and that of
Renier Ellerbeck on 18 August
2015. She concluded that on the day Accused 1 received
reception from base stations in the
Port Elizabeth area until 12:90.
From 12:35 until 13:23 he received reception from two base stations
situated in Uitenhage
area. From 13:40 onward he received
reception from base station base in the Port Elizabeth area.
[142]
For the same date the detailed billing of Ellerbeck’s number
showed that he activated base stations in Uitenhage
area during the
early hours of the morning and late afternoon from 09:01 until 12:18
he activated towers in Jansenville area.
[143]
Warrant Officer Andre Ferreira
is to the Prevention Task Team
(PTT) working on drugs and housebreaking in the cluster of
Graaff-Reinet and the whole area of Jansenville.
On 16 August
2015 he was on duty with Warrant Officer Barend Smit. They were
on the National Road next to Noorveld farmstall.
They had
information about an unrelated matter and were on the lookout for a
Skyline with drugs. A white Mazda drifter drove
past them from
the direction of Port Elizabeth towards Graaff-Reinet. It was
traveling slowly up an incline. They noticed
that there was
something watery dripping from the back of the bakkie. They
followed it because he became suspicious.
[144]
He stopped the bakkie. He asked for a driving licence.
The driver was Accused 2. He said he
did not have it. He
asked him twice about what was at the back of the bakkie.
Accused 2 did not respond. He then
said that he was going to
search the motor vehicle. He warned him that anything unlawful
found would be used in evidence
in court against him. Accused 2
kept quiet. He opened the plastic cover and found plastic bags
full of abalone.
He arrested Accused 2 for illegal possession
of abalone. He advised him of his constitutional rights.
Warrant Officer Smit
searched him and found a cellphone. He
contacted members from the DAFF. They arrived.
Photographs i.e. Exhibit
“W” were taken by members of the
Local Criminal Record Centre (LCRC). Captain Swanepoel also
arrived at the police
station.
[145]
Warrant Officer Ferreira
conceded under cross-examination that
seeing running water at the back of the bakkie does not create a
reasonable suspicion that
a crime had been committed. He
further admitted that Accused 2 did not give him permission to search
the motor vehicle.
He confirmed that he had ample time to have
secured a search warrant. He testified that at that stage he
suspected there
was definitely something at the back of the bakkie
and did not need a search warrant.
[146]
Warrant Officer Johannes Smit
confirmed that he was at work
with Warrant Officer Ferreira when Accused 2 was arrested. He
searched him and found a Nokia
cellphone which he identified in
Exhibit “W”.
[147]
Martin Phillip Kriel
was warned in terms of
section 204
of the
CPA. He is the owner of Supreme Truck and Trailers selling
automotive spare parts and trailers. He was introduced
to
Accused 1 by Mr Lochner in 2012/2013. In September 2015 Lochner
requested him to purchase a Ferrari on behalf of Accused
1 at Dadas
Motorland in Fourways, Gauteng. He received an amount of
R500 000.00 plus R180 000.00 in cash from Accused
1 to
purchase the motor vehicle. He financed it in his name through
Alphera BMW Finance at a monthly repayment of between
R33000.00 and
R34000.00.
[148]
The Ferrari was delivered at his workshop. Accused 1 came and
drove it away. He drove it for a month.
It would be
parked at the backyard of his workshop each time Accused 1 did not
use it. He saw an opportunity to use the money
because at the
time his business had cash flow problems. He sold the car at a
loss after SARS did his lifestyle audit.
[149]
Mr Theo Wernich Lochner
testified that he does debt collection
for various major banks and his work is mostly in the Transkei area
of the Eastern Cape.
He has a fleet of cars and has a passion
for fast and expensive motor vehicles. He knew Accused 1.
He loaned a BMW
and a Ford Ranger with registration letters and
numbers HFY 607 EC. Accused 1 was paying him R17 000.00
monthly.
After sometime Accused 1 returned the BMW.
Accused 1 spotted the Mazda bakkie parked in his yard. He was
interested
in it. He offered to buy it. He identified it
as the bakkie that was impounded at Jansenville driven by Accused 2.
Accused 1 paid him between R40 000.00 and R42 000.00. Accused 1
gave him the identity documents of a person to transfer the
motor
vehicle to. Accused 1 took the motor vehicle with him. He
denied that he arranged Mr Kriel to purchase a Ferrari
for Accused
1. He only referred Accused 1 to Mr Kriel because the former
was interested in a M4 BMW which belonged to Mr
Kriel.
[150]
Mr Yusuf Shaik
is a branch manager of Dadas Motorland in
Fourways Gauteng. He sold the Ferrari to Mr Martin Phillip
Kriel and it was delivered
in Port Elizabeth. He sold it for
R1 879 980.00 and the instalment was R39 000.00.
[151]
He, on a certain day, he received a call from Mr Kriel to say that
there is a gentleman who would come and look
at the vehicle on his
behalf. He suspected the person to be Accused 1. Accused
1 said to him Mr Kriel requested him
to come and look at the Ferrari.
[152]
Mr Le Roux with the intention to prove what Accused 1 said in his
bail application called Magistrate
Ms Este Karen Petzer
who
presided over the bail application. Accused 1 was represented
by Mr Roelofse and Accused 2 by Mr de Beer at the bail
application.
Ms Petzer testified that they normally deal with hundreds of new
cases in court 27. There was a developed
Roneo form which was
produced. She, as a norm, read it to every accused person
appearing in her court for the first time.
She had no
independent recollection whether she read the contents of this form
to Accused 1 and Accused 2 when they appeared before
her on 30 June
2016. The Roneo form reads:
“
You are entitled
to be represented by an attorney of your choice for whom you will be
liable to reimburse from your own funds.
If you cannot afford a
private legal representative, you may apply to the Legal Aid Board
for assistance. If your application
is successful, an
independent legal representative will be appointed for you by the
Legal Aid Board at no cost. Should you
not wish to use legal
representation, you may conduct your own defence. You and your
legal representation are entitled to
the contents of the docket once
the State has indicated that the matter is ready to proceed to trial
and if the State is opposing
bail, you have a right to a formal bail
application. Do you understand?”
[153]
Having read it, she would proceed to explain to any accused the
provisions of
section 60(11B)
(a) (c) and (d) of the CPA. I
shall not extensively deal with her evidence because the charge sheet
in respect of the bail
proceedings was not admitted.
[154]
As stated before, the State called several 204 witnesses, chief
amongst them being Renier Ellerbeck, Edgar Clulow,
Edgar Clulow
Junior and Kriel. I shall now deal with their evidence.
[155]
Renier Ellerbeck testified that Accused 2 is his brother in-law. He
is married to Accused 2’ sister.
Accused 2’
nickname is Boesman. He knew Accused 1 since 2002 when he came
to look for Accused 2 at his wife’s
home. Accused 2 was
riding a motor cycle. He gave Renier Ellerbeck a ride up the
street. Since that day they
became acquaintances.
[156]
Renier Ellerbeck started working for a company called Unicor and
thereafter for Dorbyl. He was staying on
a farm in Greenbushes
with his wife and her parents. Accused 2 was also living there
with his girlfriend. He needed
extra money to supplement his
salary. At that time Accused 2 was working together with
Accused 1 poaching abalone.
Accused 2 approached him and
suggested that he should work with him and Accused 1 by driving the
abalone divers to the sea and
back. Accused 1 would pay him for
that. He agreed and started to transport the divers back and
forth to the sea.
Later he was requested to do a “block
watch” which meant that he would sit at a spot and be on the
lookout for the
police so as to alert Accused 2 who in turn would
convey that to Accused 1. He would receive R500.00 per day from
Accused
2. Accused 2 got the money from Accused 1.
[157]
After some time he was allocated to transport abalone from the sea.
He would be phoned by either Accused
1 or Accused 2 to fetch it from
Marine Drive, Noordhoek, Schoenmakerskop and Sardinia Bay.
Renier Ellerbeck would take the
abalone to his house where it would
be weighed. He would be paid by Accused 2 at R300.00 per bag.
The bag would be
a green waist bag which was used by divers to put
abalone during harvesting. They varied from 30kg to 50kg.
The gardjies
would bring the bags and put them in the boot of his
car.
[158]
Each bag would be marked with a diver’s mark. At the
weigh house, the abalone would be sorted in terms
of sizes. A
gardjie would be present representing his driver. At times
there would be one diver present. Accused
2 would record the
kilograms of each bag and convey the information to Accused 1 for
payment to be processed. He testified
that he lived in Algoa
Park, Second Avenue in 2015.
[159]
Renier Ellerbeck testified that on 22 March 2015 (first activity), he
received a call from Accused 1 to go and
fetch bags of abalone from
the sea. He complied and brought the six bags to the house in
his white Opel Kadett. Accused
2 told him to use the route
going past Walmer Location from Schoenmakerskop to his house with
abalone. On arrival at his
house, Accused 2 informed him
telephonically that Cheron and Shanton shall come to weigh the
abalone. Indeed, they arrived
and weighed it. They were
later joined by a gardgie named Johantjie to go fetch bags he had
forgotten in the morning.
He weighed thereafter a driver
arrived and took the bags to the store house. Later on he
received another cellphone call
from Accused 1 to say there were two
bags which were left behind. He instructed him to fetch the two
bags from Noordhoek.
He drove down to fetch the bags.
While on Marine Drive, next to a beacon in Summerstand, Accused 1
phoned to enquire where
he was. He informed Accused 1 and
further told him he was uncomfortable to go fetch the bags because
there were two police
vans on the Marine Drive. Accused 1 told
him not to bother because he would drive up Schoenmakerskop. He
complied.
When at Noordhoek he came across Accused 1 talking to
a person in a white bakkie. Accused 1 told him where to go.
At
the time they were in their respective motor vehicle parked next
to each other along the road. Two gardjies, as per Accused
1’s
instructions got into the Kadett to go and show him where the bags
were. About 300 metres away from where Accused
1 was, the
gardjies told him to stop. They alighted opened the boot and
placed the bags in the boot and closed it.
At that time he
received a cellphone call from Accused 1 saying “drive away,
drive away, boere” as interpreted,
Boere is an Afrikaans
word for the police. He drove towards Schoenmakerskop.
Accused 1 came in between his car and
that of the police giving the
opportunity to drive away thus preventing the police van from
overtaking him. The police were
driving an unmarked bakkie with
a blue light on its grill. He saw a dirt road and followed it
to a dead end. He alighted
and ran away. Accused 1 called
him and said he must not say anything to the police and must throw
his cellphone away.
He could not do so because the police
officer, who turned out to be, Sergeant Shaw was upon him. He
merely conveyed to Accused
1 that they caught him. Sergeant
Shaw was pointing a firearm towards him. He was half away in
the bush at the time.
He called him to the car. The boot
was opened and the two bags containing abalone were visible.
Other police arrived
and he was arrested and taken to Humewood Police
Station. The two gardtjies ran away on hearing Accused 1
telling him to
drive away. They did not get into the motor
vehicle.
[160]
At the police station, he phoned his wife who told him she was
already aware that he had been arrested. Mr
Malan De Beer, an
attorney arrived at the police station. He advised him not to
make a statement. He brought him his
jacket and medication.
[161]
He appeared in court on 25 March 2015. Bail of R2000.00 was
paid. Accused 2 came to fetch him in Accused
1’s red
Volkswagen Kombi which he used to fill in gas tanks for the divers.
On the morning of that day, he saw Captain
Swanepoel and asked for
his cellphone number. After he was released, he phoned him and
asked to meet up with him. He
went to his offices in Newton
Park. He asked him whether he could trust him. Captain
Swanepoel said he must stand up
for his case. Later he
discussed his intentions of disclosing the truth to Captain
Swanepoel. He visited Captain Swanepoel
and told him what he
knew and the role he played in the pouching of abalone. Captain
Swanepoel told him that he would first
confer with the Public
Prosecutor Mr Le Roux about whether he could be used as a witness
against the accused.
[162]
After his arrest, Accused 1 told him to stop transporting abalone.
Accused 1 told him to use his house as
a weigh house. The
weighing carried on in his house. Abalone would be either
brought by Accused 2 or drivers to his
house. He communicated
all that information to Captain Swanepoel. He and Captain
Swanepoel decided to record the events
at his place. He was
given a portable video recorder which he operated. He managed
to record the events of 6, 26 and
29 April 2015. He could not
on other occasions because they would arrive unexpectedly and he
would not have had time to set
the video recorder.
[163]
He testified that Accused 3, Edgar Junior interchangeably came to
fetch abalone to a store house. He was
able to take down the
registration letters and numbers of two vehicles and gave them to
Captain Swanepoel. He knew Accused
3 because he once worked
with him at Hitech Automotive. The three video recordings were
played starting with the one on 26
April 2015 which starts at 21h10.
His testimony based on the recording was that it depicted him, his
wife, Andre Van Rensburg
and plastic bags lying on the floor
containing abalone. Andre Van Rensburg is seen filing up a bag
with abalone. Renier
Ellerbeck said each bag containing abalone
should weigh a certain weight. He identified Chris Koen as one
of the gardjies
and a gentleman he did not recall. A waist bag
could be seen and Renier Ellerback said the buckle bore the mark of
the diver.
He further identified a person by the name Renier
who would call Accused 1 and tell him the weight of each diver and
also the car
to pick up the abalone. He testified that abalone
must be deshelled, cleaned and washed before it is weighed.
[164]
On 26 April 2015, the recording started at 07h26. A motor
vehicle is seen. Renier Ellerbeck identifies
Edgar and another
gardjie off-loading bags containing abalone with Johantjie Cleroo
Smith. He testified that the last two
were present when he was
arrested on 22 March 2015. They are the two gardjies who
managed to escape. He identified
them in the video as they were
busy sorting out the abalone. He alleged that the abalone was
brought to his home by Accused
2. It was loaded in the motor
vehicle and the driver drove off. He immediately called Captain
Swanepoel and gave him
the information.
[165]
Regarding the recording of 29 April 2015 at 07h46, he identified
Shaw, Johantjie and Junior cleaning and weighing
abalone in his
bathroom. He testified that the abalone was brought to his
house by Accused 2. He relayed the information
to Captain
Swanepoel immediately after they left his yard. After the
incident he learnt from Captain Swanepoel that Junior
was arrested.
Accused 2 came to him and told him to find a place to rent which
shall be used as a store house. He found
a house at 11 McClear
Street in Uitenhage. Two days after he had moved in, Accused 2
and Edgar arrived in the latter’s
Bantam bakkie bringing a
Boerboel dog. Both viewed the house and approved it to be fine
for purposes of storing abalone.
[166]
At that juncture, Accused 1 and Accused 2 instructed him to start
transporting abalone from Port Alfred.
He informed Captain
Swanepoel of that arrangement. Captain Swanepoel provided him
with a motor vehicle fitted with a tracking
device. He would
deliver the abalone at JP Smuts house at the Correctional Services
premises. He advised Captain Swanepoel
accordingly. He
testified that during the first week of July 2015 he was phoned by
Accused 2 to fetch two bags of abalone
from Marine Drive to JP
Smuts’s house. He complied. When he arrived at JP
Smuts’s house, he met Accused
1 and Accused 2. Accused 1
drove away from the house. He, his wife and Accused 2 drove to
Kragga Kamma. Accused
2 dropped them at the garage because he
did not want them to see where the store house was. After about
ten minutes, he came
back and picked them up. On the way
Accused 2 called Accused 1 and made a report about abalone.
[167]
He suspected that there was abalone off-loaded at JP Smuts’s
house. He saw Junior driving a red Nissan
bakkie. On 4
August 2015, the day when Smuts was arrested, he informed Captain
Swanepoel of what he saw Junior do.
It was at about 9am.
After the arrest of JP Smuts, he stopped transporting abalone for
Accused 1 and Accused 2 because they
did not trust him anymore.
[168]
He identified the white Mazda bakkie with registration WNY 887 GP
(Exhibit “W”) found with abalone
at Jansenville being
driven by Accused 2 as the one which Accused 2 arrived at his house
driving a week before he was arrested.
Accused 2 wanted money
for petrol. Renier Ellerbeck’s wife gave him R50.00 for
petrol. He later learnt that Accused
2 had been arrested in
Jansenville. He attended court at Jansenville on the day
Accused 2 was granted bail. He was
represented by an attorney,
Ryno Scholtz. Bail was allowed at R10 000.00. He and
Accused 2 did not have money.
[169]
Renier Ellerbeck’s wife telephoned Accused 1 and told him the
bail amount that was required. Mr Ryno
Scholtz informed him to
meet Accused 1 on the way to Port Elizabeth as he cannot drive all
the way to Jansenville. He complied.
He met Accused 1
about thirty kilometres outside Uitenhage, waiting for him on the
side of the road. Accused 1 gave him R10
000.00. He drove
back to pay bail for Accused 2. His wife paid the money at the
clerk of the court. After a while,
Accused 2 told him that the
case had been withdrawn. His wife claimed back the bail money.
She was given a cheque which
they deposited at Standard Bank.
Accused 1 took R5000.00 and said the other R5000.00 must be shared
between Accused 2 and
him. He never received his share from
Accused 2.
[170]
He testified under cross-examination that Captain Swanepoel explained
to him the import of being a
section 204
witness. That was a
week after he made up his mind to testify against the accused.
He confirmed that the bail receipt
was in his wife’s name as
the depositor. He did not know whether the original bail
receipt was given to the attorney
Mr Scholtz to keep as security for
his fees. Mr Price stated at that stage of the proceedings that
the defence would call
Mr Scholtz to confirm that. But that was
not to be because he was never called. Renier Ellerbeck
testified that his
wife claimed back the R10 000.00 after the charges
were withdrawn. He did not return the money to Accused 1 but
Accused 2
came to fetch it. R5000.00 was to be given to Accused
1 by Accused 2 and the latter was to receive R2500.00 and him the
remaining
R2500.00 for his efforts in the case. This version of
Renier Ellerbeck was disputed by Mr Price in the following words.
“
Let’s just
move off this because what you are talking now is a leap of lies and
I am going to call a
number of witnesses to prove that you are not telling the truth.
You took the entire R10 000.00 for yourself
and
these people got nothing Mr Ellerbeck, is that not the truth. Answer
that is a lie.”
I
hasten to mention that the promise of calling a number of witnesses
in this regard never came to fruition.
[171]
Renier Ellerbeck confirmed that he took R3000.00 from a person for
leased premises under false pretences.
He testified that he
subsequently refunded him. He stated that in 2014 and 2015 he
and his wife were employed by Dr Reddy
at a combined salary of R16
000.00 per month. They were expelled because there was a rumour
that they were planning to rob
them. He however conceded,
though on different grounds, that there was a plan between him,
Accused 1 and others to rob Dr
Reddy. He further testified that
it is Accused 1 who informed Dr Reddy about the plan to rob him/her.
He surmised that
Accused 1 sold him out to Dr Reddy because Accused 1
accused him of betraying Jannie Smuts. Even in this instance,
Mr Price
emphasised that he was to call Dr Reddy to testify but that
never occurred.
[172]
In response to a question by Mr Price, that if he, (Renier Ellerbeck)
had been told that he was unlawfully arrested
and charged, would he
have turned State witness, he responded in the negative. He
further stated that his arrest on 25 March
2015 at Marine Drive was
not unlawful because he was found in possession of abalone by the
police. He testified that it is
him who volunteered to give the
police, especially Captain Swanepoel, the information about abalone
smuggling. He was not
asked to give information whilst the case
was still pending. In fact it is him who requested the police
and the State prosecutor
not to withdraw the charges against him
because “
if the charges are withdrawn now then they are
going to become suspicious . . . . (b)ecause questions would be asked
by Boesman
and Julian Brown as to how it is possible for the case to
be withdrawn whereas you were arrested with abalone in your
possession
”. (
Sic)
Boesman and Julian are
Accused 2 and Accused 1 respectively. He stated that the reason
for him to testify for the State,
is because “
I saw a gap
and I seized that opportunity to make use of that gap”.
[173]
Renier Ellerbeck was cross-examined at length about who phoned him to
go and fetch the bags of abalone on 22 March
2015. In his
evidence in chief he said it was Accused 1 who told him to go to
Marine Drive to fetch the bags. It turned
out in his written
statement he said it was Accused 2 who told him. In fact it is
reflected as follows in his statement:
“
. . . and
Julian phoned me to enquire where I was. I told him I am at
home. Soon thereafter
Boesman
phoned me and told me to go to Noordhoek area to collect bags of
abalone”.
In
his
viva voce
evidence he said, “
Julian also phoned
me that day to fetch the bags after Boesman also made a call to me
telling me that I must go and fetch the bags”.
He
testified that he fetched six bags and yet in his statement he said
there were seven bags.
[174]
He confirmed the evidence of Sergeant Shaw in that before his arrest
he stopped next to a Ford Ranger driven by
Accused 1 and a Corsa
bakkie driven by Shawn Smit. He did not engage in any
conversation with Shawn Smit but he spoke to
Accused 1 as he had
stopped next to him. He further confirmed the evidence of
Captain Swanepoel that he asked Sergeant Shaw
who their commander
was. It was at the time when he, Renier Ellerbeck had attended
court on his first appearance. His
attorney at the time was Mr
De Beer. He had exercised his right to remain silent up to that
stage. He confirmed that
he omitted to mention in his statement
that he asked Sergeant Shaw about that.
[175]
He testified that when Sergeant Shaw arrested him the boot of the car
was opened and upon being asked what was
in the boot he responded by
saying it was abalone. He was quizzed about Sergeant Shaw who
testified that Renier Ellerbeck
said “Meneer kan mos sien”,
and never mentioned that it was abalone. He confirmed that he
did say so to Sergeant
Shaw.
[176]
It was put to Renier Ellerbeck that when Accused 2’ mother
passed on, Accused 1 gave him an amount of R5000.00
to fetch the
ashes. He denied that. It was put to him thus:
Question:
“
Both his witnesses and others will testify
you were given R5000.00 and those ashesremained at the funeral home,
you pocketed that money.
Answer:
No.
(Emphasis Added)
[177]
It was put to him that he had stolen SASSA money from the card of
Flip Erasmus. Renier Ellerbeck denied
this. It was
promised that “
(w)e will call these witnesses at the
appropriate stage”.
No witness was called even in
this regard. Renier Ellerbeck admitted that in the early 1990
or early 2000 he was expelled
for theft of safety boots and safety
clothing from a company called Dummy Brothers. It was
highlighted to him that his evidence
contradicted that of Sergeant
Swanepoel regarding how and where they met after his arrest. He
testified that he did not ask
for Captain Swanepoel to visit him in
the court cells instead he met him by chance. He did not meet
him at his cell but he
was where photographs are taken. Upon
meeting Captain Swanepoel, the latter asked, who the owner of the
abalone was, did
not answer. He further told him that he was
the investigating officer of that case. When Captain Swanepoel
was leaving,
he asked for Captain Swanepoel’s cellphone
number. He wanted to have his cellphone number because he was
the investigating
officer of his case. He further wanted to
talk to him about his car which had been impounded. He did not
want to lose
his car. He was still paying towards its purchase
price.
[178]
Renier Ellerbeck testified that he was not scared of going to
prison. He knew, from other abalone poachers
that he would
either get a fine or a suspended sentence. He turned to be a
State witness because he was twice left in a lurch
by Accused 1 and
Accused 2. They abandoned him. In one instance, equipment
used to cook and prepare abalone was found
and confiscated by the
police at a house he was renting at Bluewater Bay. The evening
after he met Captain Swanepoel in his
office, he discussed with his
wife the option of “
telling it all”
to him.
They agreed. The following day, he telephoned Captain Swanepoel
and told him that he wanted to tell all he
knew about abalone and his
involvement.
[179]
Renier Ellerbeck denied that he was employed by an abalone smuggler
called Diffie. The person he worked
for was Accused 1. At
times, he would be paid by Accused 1 personally.
[180]
When cross-examined by Mr Roelofse, for Accused 2 and Accused 3,
Renier Ellerbeck confirmed that before his arrest
he knew that if
arrested and convicted, he would have a criminal record. He
confirmed he knew at the time that the registered
owner of the motor
vehicle could claim it back if he was able to prove that he (the
owner) was not aware that the motor vehicle
was to be used to commit
an offence. Renier Ellerbeck testified that in spite such prior
knowledge, it became a concern to
him after his arrest. He
admitted that he had been involved in the illegal abalone business
for a number of years but he
was never caught and charged for it.
[181]
About the robbery of Dr Reddy, Renier Ellerbeck testified that one
day, Accused 2 overheard his wife saying she
saw a shoebox full of
American Dollars. Accused 2 suggested that they should rob Dr
Reddy. A plan was hatched with
Accused 1. He went through
the plan, which I need not repeat for purposes of this judgment.
He stated that one of the
reasons he did not trust that Accused 1
would assist him is that while he was in police cells the latter
shouted at him saying
Renier Ellerebeck was arrested because of his
stupidity.
[182]
Renier Ellerbeck confirmed he had a previous conviction of theft that
was about 15 years old. He testified
that he did not inform the
court about that because he was never asked and it is his attorney
who addressed the court on his behalf
during bail proceedings.
He further did not inform Captain Swanepoel nor Sergeant Shaw because
they never asked him about
it. Renier Ellerbeck stated that he
became a registered police informer after he had given information to
Captain Swanepoel
and had received between R60 000.00 and R70 000.00
for the period.
[183]
Mr Johannes Christoffel Smuts
(Smuts) like Mr Renier
Ellerbeck, was warned in terms of the provisions of
section 204
of
the CPA. He testified that during March 2015 to April 2016 he
was employed by the Department of Correctional Services
and was
assigned a State house at the Correctional Services premises in North
End Prison. He knew Edgar because they worked
together as
Warders in the same prison. He testified he was approached by Edgar
to allow abalone to be weighed at his house.
That would be a
quick way of making money, so he convinced him. He agreed and
his house was used as a weigh house.
It became a routine that a
white and red Golf would drop bags of abalone at his house.
Accused 2 would come with a scale
and weigh the abalone in his
presence. It would be packed in bags. Junior would come
in a Nissan bakkie and take the
bags away.
[184]
After 2 to 3 weeks, Accused 2 phoned and advised him that abalone was
on its way for storing because their store
house was discovered by
the police. Indeed abalone was brought. The following
morning Accused 2 brought two deep freezers.
Abalone would be
collected, packed and kept in his house until it weighed a ton or
more. Accused 1 phoned him one day and
told him to prepare it
in bags. He complied and placed the bags outside. Accused
2 arrived in a bakkie. He assisted
him to load the abalone.
Accused 2 left for Johannesburg.
[185]
He testified that on 4 August 2015 he received a phone call from
Accused 1 asking if his house was not under police
surveillance as he
heard. He denied knowledge of that. After a short while
Accused 2 phoned and advised him that he
must move the abalone from
the house to the back yard. As he was busy doing so, police
arrived. Among them was Captain
Swanepoel, Sergeant Shaw, Mr
Mostert from the DAFF and Captain Erasmus. They gave him a
search warrant. At that juncture
his attorney Mr Danie Gouws
arrived. A search was conducted in his presence. Abalone
was found and he was arrested.
Attorney Malan De Beer, who
worked with Mr Gouws, arrived when they were weighing abalone at the
police station. He brought
him a cool drink and food. Mr
De Beer gave him a cellphone and told him to phone Accused 1.
He did. Accused 1
told him not to panic he shall pay his bail.
He further told him that he knew who gave the information out to the
police.
Indeed bail was set out at R10 000.00 which Accused 1
paid.
[186]
At some stage there was an issue about how the abalone was packed.
Accused 1 arrived at his house and instructed
that it must be weighed
again by Dwayne. He was remunerated at the rate of R10.00 per
kilogram for storing. Initially
he would get the money from
Accused 2 but at times from Accused 1 personally on about four
occasions. The amount paid was
about R35 000.00 for plus minus
seven loads of abalone.
[187]
After his arrest he informed his attorney Mr De Beer that he wishes
to be a witness for the State. Seemingly,
Mr De Beer did not
pursue that until he came across Mr Le Roux who in turn referred him
to a Legal Aid attorney Mr Van Der Spuy.
The latter obtained a
statement from him which was subsequently commissioned and taken by
Captain Swanepoel.
[188]
Smuts testified that he met with Accused 1 when he came to inspect
his house for weighing purposes and to meet
with him. He also
knows accused 2 because he had a love relationship with his sister
Maritza. He also knew Renier Ellerback
and his wife because
they used to drop abalone at his house in July 2015 or there about.
He knew Renier Ellerbeck since the year
2000 as an acquaintance.
He knew he was involved in abalone poaching because Accused 2 was
working for an abalone Kingpin.
[189]
Mr Price under cross-examination, put to Smuts that the search
warrant was unlawful and asked if he would have
consented to the
search and handed over his cellphone had he known that. He said
he would not have consented to the search.
However, he
testified that even if the charges were not withdrawn against him, he
would have turned a State witness anyway because
he had lost many
things because of Accused 1. He lost his job, house and had to
sell his furniture because of him.
[190]
Smuts conceded that he was involved in the abalone poaching even
before he met and worked for Accused 1.
He confirmed that
instead of facing life imprisonment he was prepared to testify
against the Accused.
[191]
Smuts said he met Captain Swanepoel for the first time after he was
arrested. Captain Swanepoel and Captain
Eksteen told him that
he was going to be imprisoned for a long time. He testified
that, Pikkie, Seun and Renier Ellerbeck
used to deliver abalone at
his house. Accused 1 used to drive in a white BMW and a white
Double Cab and would park in front
of his house. He confirmed
that he sold his car to Accused 2 before his arrest. But
Accused 2 did not pay for it.
It was put to him that Accused 2
alleged that Smuts had a serious gambling problem to which he
agreed. He denied the allegation
that the reason for cellphone
calls between him and Accused 1 was for purposes of borrowing money.
He denied further that
Accused 1 went to his house twice to enquire
about his money. It was put to him that Mr De Beer would
confirm that Accused
1 borrowed Smuts money for bail. He denied
that. I must mention that Mr De Beer was never called to
confirm this aspect
of the case as promised by Mr Price.
[192]
Smuts testified that he wanted to be a State witness because he heard
that the police were investigating Accused
1. He realised
further that Mr Gouws was giving much attention to Accused 1 than to
his case. So after his second appearance
in court, he went to
Mr Gouw’s office and told him that he wanted to turn to a State
witness. He testified that he
only saw Accused 3 once at a
nightclub. He never spoke to him. He remained adamant
that Accused 2 and Accused 1 were
involved in abalone pouching.
[193]
Edgar Gordon Clulow
(Edgar) was also warned in terms of
section 204
of The CPA. He testified that his son Junior was
arrested by the police at his house in Cradock. He approached
Captain
Swanepoel and told him that he wanted to give a statement to
the police assisting them in their investigation. He informed
Captain Swanepoel what he knew about abalone poaching. He did
so out of his own volition as he was not an accused nor a suspect.
A statement was obtained from him by Captain Swanepoel.
[194]
Edgar testified that he started working for the Department of
Correctional Services in 1989 and resigned in 2014.
He started
diving for abalone in the 1990’s. He was initially
furnished with permits by the DAFF but he exceeded his
quota.
Later on permits were withdrawn and he then harvested abalone
illegally.
[195]
His sons including Junior were involved in illegal diving.
Rynardt Jonck was his nephew and he drowned at
sea while he was
illegally harvesting abalone. He knew Accused 2 because he is
his wife’s cousin. He knew Accused
1. He met
Accused 1 at 7 Spencer Road, Kensington when he came to pay Rynardt
Jonck who was diving for him. Rynardt
was staying with him at
the time. Rynardt Jonck introduced Accused 1 to him. At
the time he was building a boundary
wall in front of his house.
Accused 1 became interested and asked him to build for his
grandmother at Lea Place, Humewood.
He agreed and started to
work there with Junior. Thereafter, Accused 1 offered them
other building jobs paying him R1000.00
per week. Accused 1
asked why Junior cannot work with him in the abalone pouching.
He told him to speak to him as he
was a grown-up who should decide
for himself.
[196]
Accused 1 employed and organised a house for Junior. After a
while he received a phone call from Accused
1 advising him that
Junior had been arrested. He informed Accused 1 that he would
not be able to assist because he did not
have money for an attorney
nor to pay bail. Accused 1 promised to organise those for
Junior. At a later stage he started
to transport Rynardt and
other divers to the sea and back. They paid him for that.
[197]
Edgar testified that during that period he interacted with Renier
Ellerbeck and Accused 2. Renier Ellerbeck
relocated to
Uitenhage. Accused 1 sent him and Accused 2 to check whether
the house Renier Ellerbeck moved in at Uitenhage
was suitable for
weighing or storing. He and Accused 2 visited the house.
He suggested to Accused 2 that the house
was suitable for weighing
and not storing because there was a school and Kentucky next to it.
[198]
He knew Smuts as they worked together at Correctional Services.
He came across him at the casino.
Smuts was on sick leave and
had financial problems. He asked if he could avail his house
for weighing as Accused 1 was looking
for a weigh house. He
agreed and Edgar relayed the message directly to Accused 1.
Accused 1 instructed him and Accused
2 to check the suitability
thereof. He and Accused 2 found it to be safe. But after
about two weeks Accused 1 told
them to stop using the house as the
police had put it under surveillance.
[199]
Edgar testified that while still working at Sydenham house, Accused 1
received a cellphone call. He
said it was from South
African Receiver of Revenue (SARS). After a short time people
arrived and served him with Income Tax
documents. He testified
that on one occasion Accused 1 arrived at Sydenham house driving a
Ferrari. He further testified
that Accused 1 told him that
Accused 2 had been arrested at Jansenville with abalone. He
stated that he and Accused 1 went
to Jeffreys Bay to fetch a white
Bantam bakkie with CAW registration letters which Edgar bought from
Accused 1’s girlfriend.
After a month, Edgar sold the bakkie to
Accused 1 for the same amount he bought it. In turn Accused 1
sold it.
[200]
Edgar had an accident while driving a motor vehicle belonging to
Accused 1 so he testified. He had to pay
for the damage.
He was further addicted to a drug called Tik which he used with
Accused 2. His wife, having had enough
of that, suggested that
they should relocate to Cradock. Junior was in prison at the
time serving a term of imprisonment.
Upon his release, Junior
joined them at Cradock.
[201]
Edgar stated that Nicholaas du Plessis was a diver working for
Accused 1. He was arrested and bail was fixed
at R5000.00.
Accused 1 asked Edgar to go to St Albans Correctional facility to pay
the bail money. He gave him a sum
of R5000.00. He went
and paid it, du Plessis was released and he gave the bail receipt to
Accused 1. The receipt number
appeared as G281087, Case Number
70/806/15 and is one of the bail receipts which were found at Accused
1’s house on the day
of his arrest and was exhibited in court.
Edgar confirmed the signature depicted as that of the depositor to be
his.
[202]
Mr Price cross-examined Edgar on his statement. It did not
appear in his statement that Accused 1 phoned
and told him that
Junior had been arrested for abalone on the second occasion.
His response was that he had not been asked
about that by Captain
Swanepoel at the time he made the statement. Edgar could not
recall whether he informed anyone other
than his wife that Accused 1
phoned him after his arrest. Edgar testified that he was
present when Accused 1 said to Rynardt
here is the money for kilos.
It has been accepted in court that kilos, refers to abalone in the
language of abalone poachers.
He further said Accused 2 was
present when Accused 1 paid Rynhardt. This information also,
did not appear in his statement.
He said the reason that he was
not asked about it when the statement was obtained from him. He
conceded that he did a lot
more building work for Accused 1. He
confirmed that he secured a weigh house for Accused 1 from Smuts.
The second occasion
was when he went to inspect the house in
Uitenhage. He conceded that he did not mention in his statement
that it was Accused
1 who gave him the instructions. He further
admitted that the only knowledge of Accused 1’s involvement in
abalone
pouching is when Accused 1 asked him to go and check the
suitability of the house in Uitenhage. He did not report to
Accused
1 but to Accused 2 about its suitability.
[203]
It further came to light that Edgar did not mention in his statement
that Accused 1 told him about the arrest
of Accused 2 in
Jansenville. Again his answer was that he was not asked about
it.
[204]
Edgar Clulow Junior
(Junior) confirmed that he is the son of
Edgar. He was born on 4 September 1991. He resided at
different times at Algoa
Park, 8 Corbin Street, Sherwood and after
his release from prison he went to live with his parents in Cradock.
He was arrested
four times for abalone. The first occasion was
in 2008. Two of those occasions are relevant to this matter
having been
arrested at 8 Corbin Street.
[205]
Junior started in the abalone poaching as a gardjie and thereafter as
a driver transporting abalone to weigh houses.
He would weigh
it, put it into bags and hand it over to the person who was to
transport it to a store house. Rynhardt was
his cousin.
He introduced him to Accused 1. He knew Accused 2 well.
[206]
Junior’s father did work at Accused 1’s
grandmother’s house. His father asked him to assist
with
rubble since he had a bakkie. He did that for a month.
One Saturday Accused 1 phoned and asked to meet with him
at a Sasol
Garage. Upon arrival Accused 1 filled petrol in his car and
asked him to go and weigh abalone at Schauderville.
He agreed.
Accused1 gave him a bag with blue chokka bags in it and a scale and
asked him to follow him. He showed him
a house. He
weighed, packed the abalone in bags and gave him the weight. He
told him to transport it to a white Golf
which was next to a certain
Kentucky Fried Chicken. He complied. Accused 1 said they
must meet at Edgar’s house
at 7 Spencer Street. Accused 1
arrived at Edgar’s house and gave him R350.00. Accused 1
gave him a scale and
a bag and asked him to keep them for future use.
[207]
In the afternoon of the same day, Accused 1 phoned him and told him
to go to a house in Algoa Park to weigh and
pack abalone. He
found out, when he got to the house, that it was Renier Ellerbeck’s
house. He knew him as the
brother in law of Accused 2 even
before that day. He then instructed him to take the abalone to
the same white Golf which
was parked at a swimming pool in
Westering. He on that occasion noticed that it was driven by
Accused 3. He loaded
the abalone in the boot and left.
[208]
On 22 March 2015 in the morning (i.e. the day Renier Ellerbeck was
arrested), Accused 1 asked him to go to Renier
Ellerbeck’s
house to weigh and pack abalone. He complied. On
instructions of Accused 1 he took the abalone to
the swimming pool in
Westering and loaded it in the same white Golf which was driven by
Accused 3. Later that afternoon Accused
1 told him that Renier
Ellerbeck was arrested at Marine Drive transporting abalone.
[209]
Junior testified that he knew JP van Zyl and Nerfies. The
former stayed at Forest Hill. On 17 April
2015, the day JP van
Zyl was arrested at 56 Heather Square Garden in Forest Hill, Accused
1 phoned him in the morning at about
5am telling him to go to JP’s
house. He went there with Nerfies to weigh and pack abalone.
On the way to JP’s
house Accused 1 phoned him from a number
ending 2200. In fact he phoned him about five times that
morning. He was travelling
in a red Nissan 1400 bakkie.
[210]
Junior parked it a few houses from JP’s house. He took
the abalone from the boot of the white Golf
and took it to the
bathroom. Accused 1 phoned whilst they were weighing asking how
far they were from finishing. While
talking to him he heard a
knock on the door. He and Nerfies escaped through the back door
because they suspected that it
was the police. They jumped over
the back wall and ran away to the bushes where they hid.
Accused 1 came to pick them
up.
[211]
Junior stated that they used to weigh abalone at Renier Ellerbeck’s
home either in the kitchen or in the
bathroom. After weighing,
he would either transport it to the storehouse or Accused 3 would do
so. Accused 3 would
reverse into Renier Ellerbeck’s yard
on the driveway, and he would remain in the car while he loaded the
bags in the boot
of the white Golf. Junior at times would use
Accused 1’s white Jetta in transporting abalone. Accused
1 bought
the Jetta for him replacing his car which was impounded by
the police i.e. the red Nissan 1400 which was confiscated at JP’s
house. Later on, Accused 1 informed him that Accused 3 was
arrested in the latter’s house in Westering and the Jetta
was
impounded by the police. A day before Accused 3 was reported to
have been arrested, Junior weighed 392 kilograms of abalone
and
packed it into bags in York Street, Kensington, on instructions of
Accused 1. He took the abalone to Accused 3 at the
swimming
pool in Westering. Later Accused 1 phoned him and informed him
about the arrest of Accused 3 with the abalone.
He was not paid
for weighing and packing it because Accused 1 was upset by the
confiscation of the abalone.
[212]
The house at No 8 Corbin Street in Sherwood belonged to Tommy
Lamont. Accused 1 leased the property from
him. Junior
lived in that property. One day he was from Marine Drive to
fetch abalone. When he pulled into the
house police parked
behind him and found the abalone in the boot of the motor vehicle.
They confiscated the abalone and the
Jetta and he was arrested.
He went to court and was represented by Mr De Beer who was organised
and paid for by Accused 1.
Bail was fixed and Accused 1 paid
it.
[213]
Junior mentioned that Accused 1 bought the CAW white Bantam bakkie
from his father and gave it to Pierre Scholtz
to transport abalone
after he had weighed it. He used it a few times i.e. Pierre
Scholtz. He loaded abalone in a wooden
box with a wooden lid
which was at the back of that bakkie. He identified Pierre
Scholtz and the CAW bakkie in Exhibit “JJ”
when the later
was arrested. He also identified the wooden box he used to load
abalone.
[214]
Junior said that he knew Smut’s well because he worked with his
father Edgar at St Albans prison.
He had earlier on taken
abalone to his house with a red Nissan bakkie that was impounded at
JP van Zyl’s house. The
police returned it to Conrad who
in turn returned it to him. He was told of Smuts arrest by
Accused 1 and thereafter stopped
transporting abalone to Smut’s
house. Instead he took abalone to a church in Bluewater Bay.
Accused 1 gave those
instructions to him. He handed the abalone
to Mike Sinclaw. He later learnt that Accused 2 was arrested in
Jansenville
from Accused 1. He identified the motor vehicle
which was driven by Accused 2 at the time of his arrest as belonging
to Accused
1. He identified it on photo album “W”.
He stated that he once replaced its number EC registration plate
by
putting one with GP registration letters and numbers. He
changed the plate number at York Street in Conrand’s workshop.
[215]
Ten days after the arrest of Accused 2, Junior was arrested for the
second time at 8 Corbin Street with abalone.
He had been given
instructions by Accused 1 to fetch abalone from Marine Drive to
Corbin Street for weighing. He complied
but the four of them
were arrested by the police while busy weighing the abalone. He
jumped over the wall and ran up to Lorriane.
Police chased him
with the assistance of a helicopter. He was arrested.
After his arrest he entered into a plea agreement
with the State in
terms of
section 105A
of the CPA. He was legally represented by
Mr Scholtz. He received a prison sentence and ultimately spent
seven months
in prison. He was released on 7 April 2016 and
went to work for Accused 1 in the Construction business. He
thereafter
decided to relocate to Cradock. He was arrested
after sometime for racketeering. He pleaded guilty and was
given a
suspended sentence.
[216]
Junior approached Captain Swanepoel and informed him that he was
prepared to testify against Accused 1, 2 and
3. It was after he
had spoken to his attorney.
[217]
Junior was cross-examined on a statement which he made on 14
September 2015 when he was applying for bail in respect
of the
offence which occurred at 8 Corbin Street on the second occasion.
In his statement he states that he earned money
through mechanical
work he did. He conceded that he also made money through
abalone poaching. He did not mention that
in his statement.
He admitted to have lied in the affidavit that he was to pay bail
money himself because Accused 1 paid
R5000.00 bail on his behalf.
[218]
Junior confirmed that he was present at Renier Ellerbecks’s
house as shown on the video on 6, 26 and 29
April. It was put
to him by Mr Price that:
“
Well, my
instructions from Mr Brown and other witnesses we will call is that
you, that the groups
there were working for Diffie including you.
Answer: No”.
No witnesses were called
to establish this.
[219]
Junior was advised that he was entitled to an attorney but Mr de Beer
suddenly showed up on the day abalone was
found in the boot of his
Jetta, so he testified. Mr de Beer informed him he was sent by
Accused 1 to be on standby and to
advise him not to say anything to
the police. He did not include this information in his
statement because he did not view
it as important and necessary.
He was caught and convicted for abalone pouching in 2008, 2014 and
twice in 2015. In
all these instances, he did not reveal that
Accused 1 was involved, except to his lawyer Etsebeth from Legal
Aid. He was
not aware at the time he pleaded guilty to
racketeering that he could get life imprisonment. But he had
arranged with the
State, through his lawyer, that he was prepared to
testify against Accused 1 and others hence Mr Le Roux, who was the
prosecutor,
informed the court of that before he was sentenced for
racketeering.
[220]
Like Renier Ellerbeck, Junior testified that when loading abalone,
one would hardly identify the driver because
the driver would remain
in the driver’s seat facing the other direction. When
finished loading, the driver would pull
off. He could identify
the driver on the second occasion because Accused 3 alighted and
assisted in taking abalone bags from
his car to Accused 3’s
car. He denied that he was allowed to stay at 8 Corbin Street
by Mr Lamont without paying rent
because he was to fix the house.
He denied further that the amounts he received from Accused 1 were
for building. He
testified that he worked once in his
Construction business with his father while renovating his
grandmother’s house.
He was never involved with Accused 1
in any building project up to the time when he was released from
prison. He confirmed
that at the time of these incidents he had
a drinking problem and was always in need of money. However, he
disputed that
he made loans from Accused 1. He merely started
to poach abalone to make more money as suggested by Accused 1.
He denied
further that the cellphone calls between them, which
Accused 1 confirmed, were due to him loaning money from accused 1.
[221]
Junior testified that he did weigh abalone at the house of Renier
Ellerbeck and he took it away and gave it to
Accused 3 at Sydenham on
instructions of Accused 1. He was confronted with what appeared
in his written statement that he
met Accused 3 in Westering. He
admitted that was correct saying he was confused because he met
Accused 3 several times.
[222]
Junior decided to turn a State witness when he received a phone call
from Captain Swanepoel to say he wanted to
see him, so he said.
There and then, he told his wife and parents that he wanted to turn a
State witness against the accused.
He told Captain Erasmus and
Captain Swanepoel accordingly. He said he was not in a position
to precisely know how many times
he met with Accused 3. He
remembered only some of the incidents.
[223]
Junior met Accused 3 for the first time at his father’s house
where Accused 3 alighted from the motor vehicle
to off-loaded abalone
from the motor vehicle he was driving. Accused 3 introduced
himself to him. He testified that
Accused 3 advised him that he
was storing abalone in his house. He did not tell the police
nor Mr Le Roux for the State about
that because he was never asked
about it. He remained adamant that he saw Accused 2 change the
registration number plates
of the bakkie and the licence disk.
He said the Jetta 3 with registration letters and numbers BCL 444 EC
belonged to Accused
1. He confirmed that the motor vehicle was
registered in his name. On the day before he was arrested at
Cradock, Accused
1 telephoned him and told him to send a copy of his
identity document to Dwyane. That is how it was registered in
his name,
so he testified.
[224]
Japie Visagie
works for AE Manufacturing which is an
engineering business as a welder. He identified a big steel pot
on Exhibit “SS”.
He testified that he modified the
pot. He also identified the racks which were depicted at the
scene where there was an explosion.
[225]
The State case was closed. The Accused applied for their
discharged in terms of
section 174
of CPA on the basis that there is
no
prima facie
case on the bases of which the Accused may be
called upon the testify. I refused the application because
there was evidence
upon which the Accused may be called to answer.
I based my decision on the evidence of the 204 witnesses which
implicated
the accused persons. Having in mind the test
applicable at this stage. There was further evidence from other
witnesses
which on the face of it called for the accused to answer
like the police witnesses and the cellphone records.
[226]
Accused 1 elected to testify and called a witness. Accused 2
and 3 closed their cases without leading evidence.
[227]
Accused 1
testified that he was 32 years old having been born on 2 July
1986. He stated that he had a hard life growing up. He
left school at the age of seventeen and started working at a Video
shop. He worked many hours in order to earn more money.
At the age of eighteen he applied for a job at Pub. He
worked about seventeen to eighteen hours a day because if he
was
working nightshift at the Pub he would work during the day at the
video shop. From there he worked for a company called
Swannies
Carpet Cleaning and Precast. He remained in that job for three
years. Then he saw a business opportunity of
selling scrap
metals. He would collect scrap metal all over Port
Elizabeth and then sell it at a scrapyard. In
the beginning he
was making about R500.00 to R600.00 per day. After some time he
bought a four ton truck and a bakkie which
he used to transport steel
or scrap metals. At that stage he made about R3000.00 to
R4000.00 a day. At some point it
was a very profitable
business. Later on the business did not make much money because
of competition. He decided to
leave it in the year 2010/2011
and started to buy used vehicles, fixed them and sell them at a
profit. He left that business
because it started not to be
lucrative.
[228]
Accused 1 decided to renovate his grandmother’s house which was
getting dilapidated. From there he
developed a passion for
construction. He started a construction business, renovating
and rehabilitating properties.
He registered a construction
company. His business improved. He could not cope with
the number of clients received.
He opened a personal bank
account with Nedbank and subsequently a business account with FNB in
2014. He denied that he is
a multimillionaire. If he had
millions of rand they would be reflected in his bank statement.
[229]
Accused 1 narrated his life with the police. He testified
that he met Donovan Reid (Donovan).
Donovan wanted him to
invest in his business which he said was an ambulance business.
Apparently it turned out that he was
an abalone poacher. He
decided to give the information to Mr Le Roux and Captain Swanepoel.
He denied that he himself
was ever involved in abalone activities.
He testified that at the age between 17/18 years he met Dawie Van Der
Merwe.
Accused 1 had a VW car. Mr Van Der Merwe
apparently liked his alcohol. He would call him in the middle
of the night
to ask him to bring him a bottle of alcohol.
Accused 1 would, for an example, buy it for R200.00 and sell it to
him for R500.00.
One day he called him to say that he must come
to the sea and drive his vehicle. He enjoyed driving because he
was still
young at the time and he drove into a trap and he was
arrested by the police because there was abalone in the vehicle.
He
was not aware of that prior to him driving the vehicle.
[230]
Accused 1 testified that he never met Accused 3 in his life. He
saw him for the first time at court.
He met Accused 2 sometime
back. At the time Accused 2 was working for another person
collecting scrap materials. Accused
2 complained about his
salary and he realized that Accused 2 was a hard worker and recruited
him to drive one of his vehicles.
He denied that he ever dealt
in abalone with Accused 2. In fact he heard stories about him
but he never saw him in possession
of abalone.
[231]
He knew that Accused 2’s sister was married to Renier
Ellecbeck. He would meet with Ellerbeck when
he came to pick or
drop off Accused 2.
[232]
Accused 1 denied what Ellerbeck said to court about him regarding the
events which occurred on 22 March 2015.
He further denied that
he was at the scene of crime in Marine Drive and tried to drive off
Sergeant Shaw off the road. He
confirmed that he rented a Ford
Ranger Double Cab bakkie from Mr Lochner. He testified that
even Accused 2 used to drive
the Ford Ranger and even on the day of
his arrest the vehicle was with Accused 2.
[233]
Accused 1 testified that on one time Accused 2 told him that
Ellerbeck wanted to meet with him. He agreed.
Ellerbeck
informed him that he wanted to organise a person who would rob Dr
Reddy who was Ellerbeck’s employer. He
told him that Dr
Reddy had pounds and other valuable property which could be robbed.
Accused 1 told him that he was not the
guy to talk about that. He
decided to inform Dr Reddy of Ellerbeck’s plans of robbing
him. He later learnt that Ellerbeck
and his wife were expelled
by Dr Reddy.
[234]
Accused 1 confirmed that he knew Mr Lochner very well. He had a
business relationship with him. He
would get cars from him and
pay instalments whilst the vehicle would remain in the name of Mr
Lochner. Mr Lochner introduced
him to Mr Kriel who he also knew
was buying and selling cars. Mr Lochner told him about the
Ferrari which was bought by Mr
Kriel. One day he phoned Mr
Kriel and asked to see the vehicle. Mr Kriel agreed and told
him that the vehicle was at
his workshop in Burman Road. Mr
Kriel told him that he can take a test drive because he knew that he
loved fast cars.
He took the vehicle and drove to his building
sites. He showed the car to his workers and then thereafter
drove back to park
it at Burman Road. That was the only
occasion that he drove the vehicle.
[235]
Accused 1 further testified that on a certain day, he received a
phone call from Accused 2. The latter informed
him that he was
arrested at Jansenville with abalone. He requested a loan of
R10 000.00 for bail. He decided to
give him the money
because he would deduct it from his salary. He gave the money
to Ellerbeck. The original bail receipt
was given to Rynardt
Scholtz as security for his fees. He later learnt that the case
was withdrawn. Ellerbeck and his
wife took the money under the
pretext that the original receipt was lost.
[236]
He testified that he knew nothing about what was happening at 16
Deborah Street, Westering. He did not know
the place at the
time. He only heard about Pierre Scholtz. He did not know
him personally.
[237]
Accused 1 confirmed that he knew Mr Smuts was working at Correctional
Services. He met him at Edgar Senior’s
house. Smuts
and Edgar were best friends. He has never been to Smut’s
house. He has never dealt with him
in respect of abalone.
He never loaned him money. Edgar told him that Smuts wanted him
to loan money. He refused
because he knew that both of them had
a gambling addiction. He further testified that he knew nothing
about 15 Nassau Street
Kragga Kamma at all. He has never been
to that place and has never had any dealings with people who stayed
in that house.
[238]
Accused 1 stated that he started to work with Edgar and Junior when
he was doing construction at his grandmother’s
place. He
provided both of them with employment because of the condition they
were living under. He also provided them
with a house where
Edgar was only going to do renovations instead of paying rent.
He did so because Edgar was very good with
his hands and that was the
only way he could bail them out from the squalor they were living
in. He heard that the Edgar
were busy with abalone poaching.
He tried to talk to Edgar out of the abalone smuggling and informed
him that he must look
after his family and live a responsible life.
He heard, even at the time he provided him with accommodation, that
he was
still involved in abalone poaching. He further heard
that he was transporting divers and also using the house as a weigh
house. Eventually Junior was arrested and sentenced to a period
for about two years. Upon his release, he financially
assisted
him.
[239]
Accused 1 testified that he met Captain Swanepoel through a lady
called Marelise because he wanted to give out
information about the
unlawful activities which were conducted by Donovan Reid whom he had
initially partnered with in the ambulance
business. He then met
with Captain Swanepoel and he gave him information about Mr Reid and
other people whom were involved
in illegal activities. He
developed a relationship with Captain Swanepoel to an extent that he
would phone him two or three
times a day and frequently visit his
office for two years. He has been to Mr Le Roux’s offices
twice already in his
life time to pass information about illegal
activities. He developed a good relationship with Captain
Swanepoel. He
testified that he was a registered informer with
Ryan Heynes from the SIG Unit. He did not receive money for the
information he
gave out. He confirmed the evidence of Nicky
about their relationship and how they met. He stated that they
were in
good terms and shared the whatsapp which have been Exhibited
in court. He further confirmed that he asked him to introduce
him to his father Captain Erasmus so that he may give information to
him. But that never materialized. Instead Captain
Erasmus
developed a personal vendetta against him and found people to falsely
implicate him in various abalone activities.
[240]
Accused 1 narrated the incident which involved Mr Garth Du Preez.
The latter wanted to assault Accused 2
at a house in Kensington.
That is an incident Captain Erasmus referred to where a male was shot
dead. He received a
phone call informing him of that. He
went to the place as it was two minutes away from where he stayed.
He tried to
intervene but he was badly beaten by Garth Du Preez and
one Swieglers who was also at the scene. It later transpired
that
Garth was shot dead by whoever was passing-by at that stage.
Captain Erasmus accused him of being responsible for the death
of
Garth Du Preez. Captain Erasmus went around spreading word that
he was involved in his murder. The reason was that
Captain
Erasmus was a friend of Mr Du Preez’s father.
[241]
He testified that he has never picked up Junior at Forest Hill in a
white BMW. At the time he was driving
a white Kombi. And
even the cellphone records do not link or do not reveal that he spoke
to him at the alleged time of the
incident, so he testified.
[242]
Under cross-examination by Mr le Roux, Accused 1 confirmed that he
drove a Ford Ranger Double Cab as well as a
BMW Sedan. He was
paying about R13 000.00 for both vehicles. They did not belong
to him but to Mr Lochner. He
testified that at the time he did
not have any vehicle which was registered in his name. He was
further cross-examined on
the question of the life style audit which
SARS had launched against him. He confirmed that he Mr Kriel,
Mr Lochner and one
Mr Roberts received forms from SARS which were
termed life style audit forms to fill. He refused to fill in
until SARS had
to launch an application in court compelling him to do
so. It transpired from the judgment of that matter that Accused
1
was not registered as a taxpayer.
[243]
Under cross-examination by Mr Le Roux, it turned out that there was
an investigation going on against Mr Donovan
Reid for using his
ambulances to transport abalone. That aspect was even confirmed
by Accused 1. It further was put
to him that the dispute
between him and Mr Reid was about a black Ford Ranger bakkie which
belonged to the latter and for which
Accused 1 was taken to court in
order to hand back that motor vehicle to its owner that is Mr Reid.
Accused 1 confirmed this.
[244]
Under cross-examination Mr Le Roux quizzed Accused 1 in connection
with the evidence of Renier Ellerbeck which
is confirmed by Exhibit
“O”. Exhibit “O” was a combination of
the phone calls between Accused 1 and
Renier Ellerbeck which Captain
Swanepoel collated. He was further asked about the
communication between himself and Sheron
Smith who was a known
abalone diver approximately the same time he was contacting Renier
Ellerbeck when the caller was arrested.
He stated that he
probably would have called them because they owed him money for
diving gear and boats rented from him.
Initially he had stated
that he might have called Renier Ellerbeck because at the time he was
staying with Accused 2 who had no
cellphone with him. When
asked why he would have had to call Renier Ellerbeck and Sheron Smith
and then again Renier Ellerbeck,
his answer was the following:
“
I just, I do not
want to sound funny, but I do not even think that Oke has got the
right mind to have a cellphone or
even know how to use a
cellphone”.
[245]
Mr Le Roux questioned Accused 1 about Exhibit “X” which
is a registration certificate of the Mazda
vehicle in which abalone
was found at Jansenville driven by Accused 2. He reminded
Accused 1 that the vehicle was bought
by Mr Lochner from Mr
Groenewald and sold to him. He further reminded Accused 1 about
the message which was found in his
phone from Accused 2 in connection
with the abalone which he was found with in Jansenville.
[246]
In his responds he mentioned that there was a certain Mr De Villiers
who gave him R50 000.00 which he took to
Mr Lochner and bought the
vehicle from him for the same R50 000.00. He then took the
vehicle and handed it over to Mr De
Villiers. In respect of the
message on the phone he responded as follows:
“
I do not recall
about the message, but I know that he told me that he is getting
money soon and he was basically explaining to me
how much many he is
going to get and when Mr Swanepoel investing had Mr Victor in the
offices with them. I actually phoned
Mr Swanepoel
and I said to Mr Swanepoel he must put the phone
on speaker and I
said to Accused 2 I said to him if you ever want to get out of this
mess that you are in you must speak two Mr
Swanepoel, he is a
trustworthy person, and tell him whose stuff you are riding, and I
think Mr Eksteen was also present when I
spoke to Mr Swanepoel and
then he said he will tell them”.
[247]
This to me clearly does not respond to the question however Mr Le
Roux went on to quote verbatim the message which
was on the phone and
which read as follows:
“
54 sakke 912 kg
sonder die punte hoor jy die ou . . . jy moet kyk viri blaiek weet
nie waar die ding
is”.
[248]
Accused 1 responded as following:
“
As far as I know
him he was obviously telling me what money he is going to obviously
received from doing this work, and I
mean I did not replied to
this message at all”.
(Sic)
[249]
He was asked why he would do that, his response was that “
he
was not in a conversation with the Oke at all”
. He
further responded as follows:
“
At that time he
was owing me a lot of money and he was working for Mr De Villiers at
that time, so it is probably his way
of telling me he is going
to pay me or tell me this is the money that he is
going to get, this is
how much stuff he has loaded. I do not
know”.
[250]
He further testified that Ellerbeck, Junior and Smuts all worked for
Mr De Villiers. He could not explain
why they communicated with
him instead of Mr De Villiers who was benefitting from their unlawful
activity.
[251]
He further confirmed that he visited China and Hong Kong with Mr
Donovan Reid. The air ticket and the rest
were paid for by Mr
Reid. This should be viewed in the backdrop of the fact that Mr
Reid was an abalone poacher. In
fact he was a kingpin according
to Accused 1.
[252]
He was further asked about the audio messages which were a Chinese
guy talking about green stuff and brown stuff
and how it should be
cooked and be prepared. The audio message further referred to:
“
Before
arrive I will let you know and I want you and the company will pay
you the ticket to
Hong Kong one or two day and we open and we post together and check
the stuff together in Hong Kong
then
we know in future how we are going to do it okay there is an idea
what I am thinking
what do
you think is it okay or not”.
(Sic)
[253]
As stated before he confirmed that he had been to China and not Hong
Kong. He testified that he would not
know why a person would
send such a message to him hence he did not respond to all three
audio messages which were found in his
phone. For purposes of
the record I shall also refer to the conversation which was send to
his phone on the 31 March 2016
which read:
“
Hi, I scare you
don’t understand the writing because my English is not that
good. Can you tell the
chef when he cook the
brown one the time he cook he must try to use a stick to turn the
fish because
the brown one is very
difficult to get hundred present well done and also after he
finished cook must not just
open the top, keep the top to close for
half an hour you know to keep the temperature longer
inside the pot you understand
inside when the fish can make better
looking because I see from the fish the stomach is up, it means
inside the fish
is not one hundred present
cooked, it’s raw, that is why and that one the people don’t
like,
they will see know they want slow cook
you see”.
(sic)
[254]
Accused 1 did not know why that person would give such instruction to
him.
[255]
He was further asked about the coincidence between the number of
calls which Junior received from him on the morning
of 17 April 2015
in the backdrop of Junior’s evidence that Accused 1 instructed
him telephonically to go and weigh abalone.
That was the
incident where they evaded the police by jumping over the wall.
Accused 1 picked them up subsequently.
[256]
He was further asked about Exhibit “DD” which was found
in his cellphone. Exhibit “DD”
contained quite a
number of divers with numbers and amounts written on it. It was
put to him that those represented the amounts
which the divers were
going to be paid. He testified that he had never seen the copy
on his phone. He further testified
that he would not have taken
a photograph of that document. As it is common practice in his
responses he reverted to say
that “
well some of these people
I have loaned money”.
He did not know how it got into
his phone as he received thousands of videos and photos each time he
opened his phone.
So he does not know how that document got
into his phone.
[257]
Mr Johan Pieter Fowke
was called as a defence witness.
He testified that he met Accused 1 at a social gathering and they had
a conversation together.
It transpired that they had something
in common. They both liked fast cars. He would regard
Accused 1 as an acquaintance
not a friend. He testified that he
assisted Accused 1 in professionally running his construction
business. He further
showed him how to be VAT and BEE
complaint. Due to the fact that Accused 1 did not have a good
financial record because his
business money did not go through the
bank, he was not credit worthy. He decided to assist him by
renting out his motor vehicles.
Accused 1 had to pay monthly
instalments directly to him for the use. He confirmed that the
whiter Ford Ranger Double Cab
Accused 1 was driving belonged to him.
[258]
Fowke testified that he signed a lease agreement on 11 April 2016 in
connection with a property that was destroyed
by an explosion.
He stated that property had nothing to do with Accused 1. He
had taken occupation of that property
three days before the
explosion. He testified that he visited the establishment after
it had exploded and came across Captain
Swanepoel and Captain Erasmus
at the scene of crime. They insinuated that it was Accused 1’s
fishing establishment.
He categorically denied that. He
further testified that Captain Erasmus had an issue with Accused 1 to
an extent that he
told him in no uncertain terms that he would not
retire without having made sure that Accused 1 was serving a long
time in jail.
He denied that one of the motor vehicles was used to
fetch a large pot that was found in the property that had an
explosion.
He stated that he assisted Accused 1 towards
raising his bail money. He loaned Accused 1 R140 000.00
which he has already
settled. The defence case was closed.
Legal
Framework
:
[259]
It is necessary for purposes hereof to deal summarily with the
provisions of the POCA with which the Accused are
charged. The
reason behind the enactment of the POCA is because of the rapid
growth of organised crime in South Africa and
the failure (of
both Common and Statutory Law) to keep up with international measures
aimed at dealing with organised crime,
money laundering, criminal
gang activities and racketeering.
[5]
[260]
Chapter 1 of the POCA deals with the definitions and interpretation
of the Act. Of relevance for purposes
hereof are the following
definitions:
“‘
enterprise’
includes any individual . . . , and any union or group of
individual in fact, although not a juristic person or legal entity;
‘
pattern of
criminal gang activity’
includes the commission of two or
more criminal offences referred to in Schedule 1: Provided that at
least one of those offences
occurred after the date of commencement
of Chapter 4 and the last of those offences occurred within three
years after a prior offence
and the offences were committed –
(a)
on separate occasions;
(b)
on the same occasion, by two or more persons who are members of,
or belong, to the same criminal gang;
‘
pattern of
racketeering activity’
means 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;
‘
proceeds of
unlawful activities’
means any property or any service
advantage, benefit or reward which was derived, received or retained,
directly or indirectly,
in the Republic or elsewhere, at any time
before or after the commencement of the Act, in connection with or as
a result of any
unlawful activity carried on by any person, and
includes any property representing property so derived;
‘
property’
means money or any other movable, immovable, corporeal or
incorporeal thing and includes any rights, privileges, claims and
securities
and any interest therein and all proceeds thereof;”
The Accused are charged
with the contravention of the provisions of the POCA, of Chapter 2 in
particular sections 2(1)(e) and 2(1)(f).
Furthermore, the State
relied on the provisions of section 2(2).
Sections 2(1)(e) and (f)
and 2(2) provides as follows:
“
2
Offences
(1) Any
person who . . .
(e)
whilst
managing or employed by or associated with any enterprise, conducts
or participates in the conduct, directly or indirectly,
of such
enterprise’s affairs through a pattern of racketeering
activity;
(f)
manages the operation or activities of an enterprise and who
knows or ought reasonably to 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”.
[261]
The State in its quest to prove the charges predominently relies on
the evidence of the police witnesses who were
involved in the
investigation of the racketeering activities. The evidence of
the police should be read together with the
evidence of the section
204 witnesses. I mention upfront that the testimony of the
police tallies with that of the section
204 witnesses regarding the
commission of the various racketeering activities in all material
respects, especially in regard to
how the 204 witnesses were arrested
(i.e. Smuts, Renier Ellerbeck, Edgar and Junior).
[262]
The evidence in respect of the various racketeering activities spells
out that there was an enterprise in operation.
It is apparent
that the 204 witnesses worked as a group in committing the various
offences. They worked for an enterprise
or a group of persons.
They were remunerated for their activities in poaching abalone.
Accused 1 in his cross-examination
of some of them, suggested that
they were working for a kingpin by the name of Diffie. In fact
my understanding of the defence
of Accused 1 is partly that they are
substituting him for Diffie. He does not dispute that the 204
witnesses were arrested
in respect of the various activities.
He also does not dispute that Accused 2 and 3 were arrested in the
manner described.
Apart from that the Accused are challenging
the lawfulness of the manner in which the searches of the premises
and motor vehicle
of the 204 witnesses were conducted, they do not
dispute that the 204 witnesses were involved in abalone poaching.
Much of
the defence is directed at that.
[263]
The 204 witnesses, at the time of their arrest did not raise that
their Constitutional rights were violated.
In most instances
there were legal representatives present during the searches and
their arrest. The right not to be arbitrarily
searched or
arrested is a personal right. If the person searched does not
raise an objection to it, so be it. A second
person cannot in
the circumstances clamour to enforce that right. The Accused
persons cannot raise the objection on their
behalf.
[264]
Accused 1 takes issue with the following aspects of this
matter:
·
That the five section 204 witnesses relied upon by the State varied
from
being poor to extremely poor in their evidence, they admitted
that they did not know that their searches were unlawful, they would
have not co-operated with the investigation.
·
That the section 204 witnesses were extorted and threatened and or
mentally
tortured to be State witnesses.
·
That the cellphone billings of Accused 1 were unlawfully obtained by
Captain
Swanepoel hence the synopsis and the affidavit of Warrant
Officer Bosch was submitted and commissioned very late in the
investigation.
·
The video camera that was used at Renier Ellerbeck’s home
amounted
to entrapment in terms of section 252 A of the CPA.
[265]
It has become trite that the evidence of an accomplice witness must
be approached with caution
[6]
.
Cautionary rules and its components are merely an aid to a purpose.
A criminal case is not about the application of
rules but about
finding the truth. The Appellate Division, per Smalberger JA,
voiced a reminder in
State
v Francis
1991(1)
SACR 198(A) at 205f that the test in the final analysis is
whether the court, after proper consideration of
the accomplices’
evidence with the caution required by the law, is beyond all
reasonable doubt satisfied that the story the
accomplice tells is
essentially true
[7]
.
[266]
It has been argued on behalf of Accused 1 that Renier Ellerbeck is a
single witness regarding the events or activities
that occurred on 6,
26 and 29 April 2015 and that the State has failed to corroborated
his evidence by calling other available
witnesses. In fact it
is essential to highlight how Renier Ellerbeck turned a State
witness. After his arrest by Sergeant
Shaw at the Marine Drive
with abalone, he decided to turn a State witness out of his own
volition. The difference between
his evidence and that of
Captain Swanepoel regarding how they met at the Magistrate’s
court offices to me is immaterial in
establishing this aspect.
Renier Ellerebeck categorically testified, in spite of rigorous
cross-examination in this regard,
that he decided on his own “
to
tell it all”
about abalone poaching. The witnesses
the State failed to call have nothing to do with his resolution.
[267]
Furthermore, it is him who allegedly spoke to Accused 1 and Accused 2
about the incident that occurred on 25 March
2015 up to the stage
when he was arrested. No witness could have been called by the
State to corroborate this part of his
testimony. Pertaining the
other activities which involved Edgar, the latter corroborated each
and every aspect of his testimony
about the events that connected
them in the commission of the various offences. Lack of
corroboration in some of these aspects
should be viewed from the
background provided by Mostert and others that the operations were
conducted on a need to know basis.
No one knew who played the
next role.
[268]
What is essential in the evidence of Renier Ellerbeck and Junior, for
that matter, is that they had personal dealings
with Accused 1, 2 and
3. Renier Ellerbeck dealt and received instructions, to either
fetch or transport abalone, from Accused
1 personally as reflected in
his evidence above.
[269]
Much has been said during his evidence especially under
cross-examination about the setting up of the video camera
at his
house. The explanation given by Captain Swanepoel and Renier
Ellerbeck makes perfect sense. It was not meant
to entrap
anybody. In fact none of the Accused are implicated by it.
The purpose was to establish the truthfulness
of the allegations by
Renier Ellerbeck. Captain Swanepoel wanted to satisfy himself
that Renier Ellerbeck was telling the
truth. Indeed, with the
aid of that video, the truthfulness of Renier Ellerebeck’s
allegations was confirmed by Captain
Swanepoel. The decision by
Renier Ellerebeck, it should be noted, led to the breakthrough of the
cartel involved in abalone
poaching. The information he
provided to the police led to a number of arrests and the uncovering
of the various racketeering
activities relied upon by the State.
It led to the convictions of some of the 204 witnesses. It is
undoubtedly so,
that in spite of the criticism levelled against the
reliability of his evidence, the information about abalone poaching
provided
to the police by Renier Ellerebeck turned out to be
authentic. It therefore cannot be heard to be correct that
Renier Ellerbeck’s
entire evidence stands to be rejected.
[270]
Much criticism has been levelled against him because of his previous
criminal conduct. Renier Ellerbeck
did not dispute his brushes
with the law. He stole from his previous employer safety boots
and was expelled for it.
He admitted that he stole R3000.00
from a person who was to lease a property. All these factors do
not lead to this court
rejecting his evidence or that he should not
be believed. Much was said about him having stolen the bail
money paid on behalf
of Accused 2 and money meant to be used to fetch
the remains of his mother in law etc. It was emphatically put
to him that
several witnesses were to be called to establish that he
is a liar in that he lied in respect of several aspects. But
that
was a hollow threat, as no such witnesses were called. I
highlighted when I dealt with the evidence several instances where
it
was pertinently put to various witnesses by Mr Price that witnesses
would be either called to dispute or prove certain relevant
aspects
of this matter. None of the promised numerous potential
witnesses were called by Accused 1 to testify except Mr Fowke.
[271]
The background and criminal history of Renier Ellerbeck has to be
taken into account. It has to be viewed
in the totality of the
evidence provided by him in this matter. But his previous
conduct should not be used to cloud the
relevance of his evidence.
It should not be used to displace logic and established facts.
[272]
It is logical that accomplices and 204 witnesses have self-serving
reasons to turn into such witnesses.
That much cannot be
disputed. The driving motive apart from other factors like
having a guilty conscience etc., is self-motivated.
Renier
Ellerbeck and other 204 witnesses testified amongst other things
that, they saw a gap and seized it, they felt that attorneys
organised by Accused 1 on their behalf gave much attention to him
rather than their criminal matters, that Accused 1 abandoned
them in previous encounters with the law, avoiding to go to prison
for a long time etc. All these motivations should be viewed
against the totality of the evidence during evaluation. Such
reasons, do not by themselves prove that the 204 witnesses are
lying.
[273]
Mr Price referred me to
State v Brooks and Others
2019(1) SACR
103 (NCK) in arguing that the amount of R60 000.00 –
R70 000.00 paid to Renier Ellerebeck should have
been given to
him at the end of the trial. He argued that it is like hiring a
witness as it is put. This aspect should
be contextualised.
All I know is that it was for information provided by Renier
Ellerbeck and not a motivation to lie against
Accused 1. As
stated before, the unlocking of abalone poaching came as a result of
the information provided by Renier Ellerbeck,
so the evidence
reveal. He had not received any payment at that stage. I
should not be seen or heard to say it was
correct to pay him.
In this instance, I would not categorise the payment of Renier
Ellerbeck as amounting to hiring him.
After he spilt the beans
he was then used as a police informer hence the payment. I
dealt, above, with the reasons why he
turned against Accused 1.
[274]
The nature of this “
business”
is that a person
does not have to know the next person. It would be bizarre
therefore for Renier Ellerbeck to produce proof
of payment from
Accused 1. Even Edgar did not produce proof of the payments
made when he was constructing the boundary wall.
Neither did
Accused 1 do so.
[275]
Renier Ellerbeck is Accused 2’s brother in law. They, at
some stage stayed together. Renier
Ellerbeck stated how he came
to know Accused 1 through Accused 2. He was recruited to
abalone poaching by Accused 2.
He dealt with Accused 2
personally. He testified that he received instructions to
either transport or store abalone from
Accused 1 and Accused 2
directly. He, unlike others, dealt directly with Accused 3,
Edgar and Junior because his was a weigh
house. He knew that
all of them were working for Accused 1. In truth and reality
all of them, with the exception of
Accused 1 were arrested by the
police with abalone. Hence the various activities. The
police did so as per information
given by Renier Ellerbeck.
Edgar and Junior corroborated the evidence of Renier Ellerbeck in
material respects pertaining
their involvement. Renier
Ellerbeck testified that at the time of his arrest, he was in
telephone conversation with Accused
1. The synopsis compiled by
Captain Swanepoel i.e. Exhibit “O” and paragpraph 4.2.5
of Exhibit “YY”
confirm that. Captain Swanepoel’s
evidence that approximately at that time, he received a phone call
from Accused 1
to say people were driving recklessly in Marine Drive
is confirmed by the cellphone billing.
[276]
Renier Ellerbeck, despite his criminal past and the criticism
levelled against him, gave credible evidence especially
that he finds
corroboration from other sources. He did not lie about the
circumstances which led to his arrest. He
answered the
questions asked of him frankly and honestly. No evidence was
adduced, as repeatedly promised, to gainsay his
testimony. He
was honest with his past in that he was involved in abalone
activities even before he met with Accused 1 and
Accused 2. The
inconsistencies and omissions in his written statement and evidence
in court are not material to the issue
at hand. There is no
basis whatsoever that Renier Ellerebeck and other 204 witnesses in
particular, were substituting Accused
1 and Accused 2 for any abalone
kingpin. There is no basis for that allegation. There is
no semblance of evidence or
motive advanced why these witnesses would
substitute Accused 1 for Diffie for example. Accused 1 has
submitted that his involvement
with the 204 witnesses was that he
organised them lawyers when they were arrested, he paid bail for
them, he provided or hired
out his diving equipment including gas
cylinders to abalone poachers etc. In other words he was of
assistance to them.
There is no suggestion that Diffie did the
same for them even though they were working for him. The most
reasonable expectation
in the circumstances would be for them to
falsely implicate Diffie who even though they were working for, did
not help them when
busted by the police in the course of their
employment with him as alleged. Petrified as they may have been
of life or lengthy
periods of imprisonment why would they falsely
implicate Accused 1 who had been so instrumental in trying to improve
their lives
in the fashion told by him.
[277]
According to Accused 1, some of the 204 witnesses are known abalone
smugglers. Dywne, Diffie and others
are kingpins and abalone
poachers but Accused 1 had such an intricate relationship with them.
He was organising lawyers and
bail for abalone smugglers. I am
aware that he says it was at a fee. The Bantam bakkie, the
Jetta and other cars exchanged
hands with the abalone smugglers as
admitted by him and testified to by the State witnesses. It is
mind boggling therefore
that those who he helped implicated him for
no reason or rhyme.
[278]
Moment is made by Accused 1 that Smuts was threatened by Captain
Swanepoel and Eksteen that he was facing a lengthy
term of
imprisonment, and had he been properly advised by Mr Gouws that the
search was illegal, he would not have co-operated with
the police
investigation. The fact of the matter is that he gave
information to the police out of his own volition.
For the
reason stated above, he decided to give out information to the police
about Accused 1’s involvement in abalone smuggling.
Smuts
admitted being involved in abalone poaching before these activities.
He knew at some stage that Accused 2 worked for
Diffie’s
group. But he stated that at the time of his arrest, he was
working for Accused 1. Even with him, there
is no basis laid
for why his would prefer to implicate Accused 1 instead of Diffie who
was his boss, so to speak. I know
that Accused 1 has no legal
duty to establish or know the motive. My understanding of the
threats made against Smuts is that
he was not told who to implicate.
No suggestion was made to him to implicate Accused 1. It is
strange therefore in
the absence of such, why independently of other
204 witnesses, would he implicate the Accused 1. He testified
that he personally
got instructions about abalone directly from
Accused 1. He as stated above, on four occasions he received
his remuneration
for abalone poaching from Accused 1 personally.
[279]
Smuts and Renier Ellerbeck corroborated each other regarding many
material aspects. Renier Ellerbeck used
to take abalone to
Smut’s house. Smuts dealt with Accused 2 personally.
On the day of his arrest Accused 2 phoned
him telling him to remove
the abalone as the police had discovered the house. He was
arrested while he was busy moving the
abalone. His evidence was
brief and to the point and apart from the issue of the threat by
Captain Swanepoel and Eksteen,
I ruled the search to be unlawful.
[280]
The defence alleges that Edgar was intimidated to become a witness in
this matter. It is not suggested that
he was intimidated to
falsely implicate the Accused. The involvement of Edgar in
Accused 1’s construction business
is not in dispute. I
say so mindful of his criticism that he down played the extent of
work he did for Accused 1. He
met his nephew Rynardt Jonck who
was a diver working for Accused 1.
[281]
Mr Price criticized Junior as a poor witness who contradicted other
State witnesses and his own statement in numerous
respects. He
stated that in his previous abalone cases, Junior never mentioned nor
implicated Accused 1. It was further
pointed out that even his
plea bargaining statement Exhibit “KK” he did not mention
Accused 1’s name. A
simple answer is that at the relevant
times Junior had not made up his mind to expose Accused 1. He
merely did so when he
received a phone call from Captain Swanepoel
after he had served his time in respect of the other activities.
The contradictions
in his statement and the affidavit submitted when
he applied for bail. He may have lied in those instances but in this
matter his
evidence find corroboration from other sources.
[282]
I don’t wish to detain myself in the debate of whether Junior
would not have pleaded guilty if he knew about
the missing or
unlawfully obtained search warrant. The Constitutional right or
otherwise that were flouted were available
to Junior and not the
Accused. The Accused cannot premise their defence on that.
That is akin to confessions and admissions
made by a witness.
An Accused person cannot rely on the inadmissibility of a confession
made by a witness to advance his
case. Such challenge is
available only to an Accused person and not the latter on behalf of a
witness who testifies against
him.
[283]
The totality of the evidence clearly establishes that there has been
a contravention of sections 2(1)(e) and (f)
of the provisions of the
POCA as set out in the indictment. Furthermore, it has been
established that the provisions of Regulation
36(1)(a) read with
Regulation 96 of the Regulations Promulgated in Government Notice
R1111 and read with Regulation 1 and section
58(4) of the MLRA
further read with section 250 of the CPA have been contravened.
[284]
The evidence further established that there was an association of
fact enterprise whose purposes was to engage
unlawful in fishing,
collecting, keeping, controlling, processing, of and possession of
abalone for “self-enrichment”.
The evidence spells
out how the enterprise operated through the pattern of racketeering
activities set out and discussed above.
[285]
As alluded to, the discovery of the existence of the enterprise was
the arrest of Renier Ellerbeck. Renier
Ellerbeck was recruited
to the enterprise by Accused 2 who introduced him to Accused 1.
Renier Ellerbeck went through the
ranks of abalone poaching as set
out by Mostert, Captain Erasmus and others. Renier Ellerbeck
was managed and paid by Accused
2 and Accused 1. He received
instructions from them and so are the other 204 witnesses in terms of
the evidence. Undoubtedly
so, the evidence established that
Accused 1 and Accused 2 are the association of fact enterprise who
managed its affairs through
the racketeering activities referred to.
The personal involvement and management of the affairs of the
enterprise by Accused
1 and Accused 2 cuts across as a thread through
the evidence of the 204 witnesses, the cellphone records and the sms
messages which
were found in the cellphones of Accused 1 and Accused
2. It is worth commenting about that sms and whatapp messages
which
had to do, for an example, the Chinese concern on how abalone
should be cooked as consumers were not happy if it is not well
cooked,
are found in the cellphone of Accused 1. Accused 1 says
that he did not know their origin and did not respond to them.
Accused 2 sends him a message at the time of his arrest in
Jansenville. Accused 1 does not know what the message sent by
Accused 2 meant except to suspect that it had to do with the money
owed him. That cannot be correct in the circumstances.
Accused 1 cannot surmise that the message was about payment of his
money because he now knows that Accused 2 was being arrested
at the
time he sent the message referred to in paragraph 245 above.
The 204 witnesses, independently of each other, at the
time of
investigations and in relation to the commission of the offences,
claim that payments made to them by either Accused 1
and Accused 2
was for abalone poaching. Accused 1 claims that it was for
money leant to them. His version cannot be
correct in the
circumstances. Upon their arrests, attorneys and bail money was
paid for by Accused 1. Bail receipts
on behalf of other known
abalone divers were found in Accused 1’s house. The motor
vehicles which were used in the
transportation of abalone by the 204
witnesses had one way or the other had to do with Accused 1.
[286]
Kriel was not a good witness. I need not detain myself by
analysing his evidence. His evidence has
not been confirmed by
Lochner nor by Yusuf Shaik for Dada Motorland.
[287]
The explosion as covered by the eleventh activity did occur. It
is apparent that the building was used as
a fishing processing plant
or establishment because cooking equipment and abalone was found.
I accept the evidence of Captain
Erasmus regarding his reconstruction
of the scene. However, the evidence is not sufficient to
conclusively link Accused 1
to it.
[288]
There is certainly evidence which links Accused 2 and Accused 3 to
the commission of the offences with which they
are charged. I
refused their discharge at the end of the State case precisely
because of that. They elected not to
testify in their defence.
I do not have evidence apart from their cross-examination to counter
the evidence before me.
The evidence before me is credible
enough to sustain convictions in the absence of a version from
Accused 2 and 3. The evidence
of Warrant Ferreira, Smit and
Sergeant Shaw regarding the false registration on the Mazda motor
vehicle driven by Accused 2 stands
unchallenged. It was
unlicensed, false number plates were used. That on its own
amounts to fraud. Accused 2 could
not produce a valid driving
licence. All that evidence has not been disputed by Accused 2.
[289]
Regarding count 3 I am unable to find that the State proved that it
was the Accused 1 who prevented Sergeant Shaw
from arresting Renier
Ellerbeck. I am convinced that the motor vehicle used is the
Ford Ranger Double Cab Accused 1 is using.
I further suspect
that it is him who was driving it at that time. But suspicion
is not enough to convict him on this count.
Sergeant Shaw could
not identify the driver nor his colleague apart from taking down the
registration plates of the motor vehicle
that was obstructing them.
[290]
The evidence adverted to proof beyond reasonable doubt that some of
the offences were committed. The Accused
version in those
circumstances stands to be rejected.
[291]
Consequently, I find as follows:
1.
Accused 1 is convicted on counts 1 and 4 and acquitted on counts 3
and 12.
2.
Accused 2 is convicted on counts 1; 2; 7; 8; 9; 10 and 11.
3.
Accused 3 is convicted on counts 2 and 6.
________________________
M
MAKAULA
Judge
of the High Court
For
the State:
Adv M Le Roux
National Director of
Public Prosecutions
Port Elizabeth
For
Accused 1:
Adv T Price
Port Elizabeth
Instructed
by:
Griebenow Attorneys
Port Elizabeth
For
Accused 2 and 3:
Mr P Roelofse
Port Elizabeth
Instructed
by:
Roelofse Meyer Attorneys
Date
Delivered:
5 February 2019
[1]
51 of 1977.
[2]
2011(2) SACR 301
cc
at
page 313.
[3]
Page 316 – 7.
[4]
Paragraphs 37 – 41. Footnotes omitted.
[5]
Preamble to POCA; Organised Crime and Proceeds of Crime in South
Africa 2
nd
Edition Albert Kruger page 6.
[6]
State v
Mlaphzule and Others
(1965(4)SA 439(A).
[7]
Hiemstra’s Criminal Law Procedure A Kruger Issue 9 at p 24 –
7.