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[2024] ZAECMKHC 8
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Brown and Others v S - Appeal (CA 45/2020) [2024] ZAECMKHC 8; 2024 (1) SACR 403 (ECMk) (23 January 2024)
FLYNOTES:
CRIMINAL – Evidence –
Invalid
search warrants
–
Evidence
obtained from searches conducted – Some with warrants and
others without warrants – Trial court did not
make a
pronouncement on evidence which was obtained because of invalid
warrants and did not consider provisions of section
35(5) –
Such failure rendered trial unfair – Admissibility of
evidence that was unconstitutionally obtained had
to be tested
against the provisions – Irregularity – Appeal upheld
– Constitution, s 35(5).
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Reportable
CASE
NO.: CA 45/2020
In
the matter between:
JULIAN
BROWN
1
st
Appellant
EUGENE
VICTOR
2
nd
Appellant
BRANDON
CRAIG TURNER
3
rd
Appellant
and
THE
STATE
Respondent
APPEAL JUDGMENT
GQAMANA J
Introduction
[1]
The appellants were charged with various counts for contraventions of
inter
alia,
Regulation
36(1) (a) read with Regulation 96 of the Regulations promulgated in
the Government Notice R111 and published in the Government
Gazette
19205 of 2 September 1998 read with regulation 1 and read with
various provisions of the Marine Living Resources Act 18
of 1998 (the
MLRA) (relating to abalone), contravention of the provisions of
section 2 (1) (f) read with sections 1, 2(2), 2(3),
2(4) and 3 of the
Prevention of Organised Crime Act 121 of 1998 (POCA) (the
racketeering and money laundering offences), obstructing
the course
of justice, fraud and the contraventions of the
National Road Traffic
Act 93 of 1996
. The first appellant was convicted on counts 1 and
4.
[1]
The
second appellant was convicted of counts 1, 2, 7, 8, 9,10 and 11.
[2]
The
third appellant was convicted of counts 2 and 6.
[3]
The
first appellant was sentenced to 18 years’ imprisonment on
count 1 and, 3 years on count 4 (the sentence to run concurrently).
The second appellant was sentenced to 15 years each on counts 1 and
2, 3 years on count 7, two years each on counts 8,9,10 and
3 years on
count 11. The third appellant was sentenced to 15 years on count 2
and 3 years on count 6. The appeal on conviction
is before this Court
with the leave of the Supreme Court of Appeal, whilst leave was
granted by the trial court in respect of sentence
on the second and
third appellants.
[2]
For purposes of this appeal, the only relevant charges are those
relating to abalone and racketeering.
Summary
and background of material facts
[3]
The allegation by the State is that the appellants were involved in
abalone poaching and racketeering. Further,
it was alleged that the
first and second appellants made a living by means of managing an
enterprise which was engaged in the illegal
fishing, collecting,
keeping, controlling, processing, transportation and possession of
abalone. The first and second appellants
managed the affairs of the
enterprise and in order for the enterprise to engage in the illegal
abalone trade, they gave instructions
to various employees of the
enterprise including the third appellant to possess, transport, keep
and process the abalone in the
execution of the business of the
enterprise.
[4]
Furthermore the allegation was that the appellants and other persons,
known and unknown to the
State, involved themselves directly or
indirectly in the conduct or participated and or managed the
enterprise and or participated
in the conduct of the affairs of the
enterprise engaging in abalone poaching. The allegation was that the
enterprise which was
formed by the first and third appellants
conducted its affairs through a pattern of racketeering activities
stretching from 22
March 2015 to 30 September 2015 as set out below
and that all racketeering activities are Schedule 1 offences in terms
of POCA.
Those racketeering activities are:
“
1.
Racketeering
Activity 1:
On
the 22nd of March 2015 [first appellant] phoned Reinier Ellerbeck and
enquired where he was. Soon thereafter [second appellant]
phoned
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.
Edgar
Clulow took possession and transported the abalone from the house of
Ellerbeck. Later during the day [first appellant]
again 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 in collecting the bags of abalone. [First appellant] was on
the scene and tried to prevent the police
from arresting Ellerbeck.
After Ellerbeck’s arrest, [first appellant] had an attorney
appointed to act on Ellerbeck’s
behalf.
2. [Racketeering Activity
2] On the 6th, 26th and 29th of April 2015 and at the residence of
Reinier Ellerbeck, [first and second
appellants]and Andre van
Rensburg, Edgar Clulow and other employees of the enterprise
unlawfully and wrongfully engaged in the
fishing, collecting,
disturbing, keeping, controlling, storing, transporting or possession
of abalone by sorting, packing and weighing
of abalone brought to
Ellerbeck’s house. [Third appellant] on one occasion, arranged
the transport of the abalone, after
it was weighed, to an abalone
store.
3. [Racketeering Activity
3] On the 16th of April 2015 [second appellant] was seen, driving a
red Kombi busy collecting divers along
Marine drive and taking them
to a house at 5[…] H[…] g[…] s[…], Forest
Hill, Port Elizabeth. The following
day abalone that belonged to the
enterprise was found at this address. JP van Zyl, an employee of the
enterprise was found in possession
of the abalone.
4. [Racketeering Activity
4] The police observed [third appellant] collecting abalone from the
house of Ellerbeck in Algoa Park.
The abalone was taken to […]
D[…] Street, Westering, Port Elizabeth where it was frozen,
processed and stored. On
the 11th of May 2015 the police found [third
appellant] in possession of the abalone he kept on behalf of the
enterprise. The police
confiscated the abalone and a white Golf
vehicle which was used to transport the abalone.
5. [Racketeering Activity
5] Edgar Clulow was employed to transport the abalone from the house
of Ellerbeck in Algoa Park to a store
unknown to the police.
Clulow used a Jetta vehicle to transport the abalone. On the 28th of
May 2015 Clulow was arrested
in possession of 1011 units of abalone
at his house, […] C[…] C[…], Sherwood, Port
Elizabeth. The State alleges
that this abalone belonged to the
enterprise and the house was made available to Clulow by [the first
appellant].
6. [ Racketeering
Activity 6] Abalone which belonged to the enterprise was processed at
the house of Jan Smuts on the premises of
the Department of
Correctional Services, North End, Port Elizabeth. The police, through
observation, established that the abalone
was stored at 1[…]
N[…] Street, Kama Park, Port Elizabeth. On the 12th of July
2015 Pierre Schultz was arrested at
the house 1[…] N[…]
Street in possession of abalone. The State alleged that this abalone
belonged to the enterprise
7. [Racketeering activity
7] On the 4th August 2015 the police searched the house of Jan Smuts
and arrested him in possession of
abalone which the State alleges
belongs to the enterprise. Edgar Clulow was observed delivering the
abalone at this house.
8. [Racketeering activity
8] On the 26th of August 2015[second appellant] was found in
possession of abalone, near Jansenville,
whilst busy transporting the
abalone. The State alleges that the abalone belongs to the
enterprise.
9. [Racketeering activity
9] On the 26th August 2015 Edgar Clulow was caught in possession of
abalone at his house at […]
C[…] C[…], Sherwood,
Port Elizabeth. The State alleges that this abalone belonged to the
enterprise.
10. [Racketeering
Activity 10] On the 30th September 2015 the police kept observation
at the premises situated at […] C[…]
S[…],
Sidwell, Port Elizabeth. [Second appellant] delivered abalone at this
address. The police arrived and found the abalone
and arrested Mr
Plaatjies in possession of abalone. The State alleges that this
abalone belonged to the enterprise.
11. [ Racketeering
Activity 11] On the 11th of April 2016 an explosion occurred at
premises situated on the corner of Lindsay and
Buitekant Street in
Neave Township, Port Elizabeth. The explosion was caused by the
ignition of gas at an illegal fish processing
establishment. Two
persons died as a result of the explosion. These two persons were
employed by the enterprise or someone involved
with the enterprise to
process the abalone. [First appellant] had supplied the drying
shelves which was used to dry the abalone.”
[5]
In addition it was alleged that, the first appellant contravened
regulation 36
(1) read with
regulations 1
and
96
and
section 58(4)
of
the MLRA in that, on 22 March 2015, at Marine Drive, Port Elizabeth,
he together with Ellerbeck unlawfully and wrongfully engaged
in the
fishing, collecting, keeping , controlling, storing, transporting or
possession of 218 units of abalone without a permit.
[4]
[6]
In respect of the third appellant, it was further alleged that, he
was observed by the police
collecting abalone from Ellerbeck’s
house in Algoa Park and delivered to […] D[…] Street,
Westering, where
it was frozen and stored. Again on 11 May 2015, he
was found in possession of abalone that he kept on behalf of the
enterprise.
The abalone and the car that was used in transportation
of same were confiscated by the police.
[5]
[7]
In respect of the second appellant, it was alleged that on 16 August
2015, he was found in possession
of abalone at or near Janesville,
which he was transporting on behalf of the enterprise.
[6]
In
addition it was alleged that he was observed by the police when he
delivered abalone, on 30 September 2015, at house number
[…]
C[…] Street, Sidwell, Port Elizabeth, which abalone belonged
to the enterprise.
[7]
[8]
The State’s case rested largely on the search warrants, the
evidence that was obtained as
a result of the searches conducted some
with warrants and others without warrants and the
section 204
witnesses who were involved in the racketeering activities mentioned
above. The validity of the aforementioned search warrants
and the
evidence obtained as a result thereof were hotly contested at trial
and are at the heart of this appeal.
[9]
The appellants in their defence pleaded not guilty. The first
appellant made a comprehensive statement
explaining his plea in terms
of the provisions of
section 115
of the
Criminal Procedure Act 51 of
1977
. He denied any involvement in the enterprise as alleged by the
State and that he was in possession, keeping, controlling, storing
or
transporting of abalone. Further it was contested on his behalf that
some of the
section 204
witnesses were arrested after the searches of
their properties in terms of search warrants which were issued by
either a senior
member of the police or by a local magistrate and
that none of the search warrants were valid.
[10]
The second and third appellants tendered no plea explanation but they
also denied any involvement with the
enterprise as alleged and
possession, controlling, storing, processing or transportation of
abalone.
[11]
In light of the challenge on the validity of the search warrants, a
trial-within-a trial was called, to determine
same and the
admissibility of the evidence obtained as a result of such warrants.
Numerous witnesses, mainly those that were involved
in the
application for search warrants, that conducted and participated in
the searches and in the arrest of the appellants testified.
[12]
After having heard evidence of the police officials on the searches
in respect of the racketeering activities,
the trial court ruled and
found Exhibits B, C, D and L to be invalid. It further ruled that the
State would be allowed to lead
evidence so that it could be able to
make a determination in terms of section 35(3) of the Constitution at
the end of the State’s
case.
[13]
Section 35(5) reads:
“
Evidence
obtained in a manner that violates any rights in the Bill of Rights
must be excluded if the admission of that evidence
would render the
trial unfair or otherwise be detrimental to the administration of
justice
”
.
[14]
Further the trial court found to be valid, the searches on
Ellerbeck’s car on 22 March 2015 at Noordhoek,
[8]
Ellerbecks’
video recordings of abalone processing on 6, 26 and 29 April 2015 at
his house,
[9]
the
search of JP
Van
Zyl
on
17 April 2015 at Forest Hill,
[10]
the
search of Edgar Clulow’s car ( junior) on 28 May 2015 at […]
C[…] Street, Sherwood,
[11]
the
search warrants of the first and second appellants.
[15]
No ruling was made on the search with a warrant of the third
appellant on 11 May 2015 and on the search
without a warrant of
the second appellant’s car outside Jansenville.
[12]
[16]
It is common cause that the trial court did not make a determination
in terms of section 35(5) at the end
of the State’s case,
although evidence was led by the State about various searches and the
abalone that were found as a result
of the searches including those
searches based on invalid search warrants as well as those conducted
without warrants.
Issues
to be decided
[17]
The central issues on conviction are; firstly at what stage of the
proceedings should the trial court have
made its decision in terms of
section 35(5) of the Constitution on the admissibility of the
evidence gained as a result of the
searches that were carried out;
secondly, the admissibility of the evidence obtained as a result of
the searches be it with the
invalid and valid search warrants and
without warrants; thirdly, whether the case against the appellants
was proved beyond reasonable
doubt; fourthly, to consider the
sentences imposed by the trial court.
When
should the decision have been made in terms of section 35(5) of the
Constitution
[18]
Right at the pleading stage of the proceedings, the appellants made
known its contestation on the validity
of the search warrants. It was
their contention that none of the search warrants were in compliance
with the prescriptive requirements.
As a result, the trial court
ruled that the case and evidence would commence with a trial-within a
trial.
[19]
In
NDPP
v Van Der Merwe
,
[13]
Mogoeng
J
(then) stipulated what an affidavit in the application for a warrant
and the warrant itself must contain. It held that a search
warrant
must contain the following: the statutory provisions in terms of
which it is issued, the identity of the searcher, the
authority it
confers upon the searcher, the identity of the person or premises to
be searched, the article to be searched has to
be described with
sufficient particularity and the offence which triggered the criminal
investigation and the names of the suspected
offender must be
specified.
[20]
On hearing of the evidence from the police officials and at the end
of the trial within the trial, the trial
court ruled that the search
warrants in respect of racketeering activities 6, 7, 9 and 10 were
invalid because of lack of compliance
with the prescriptive
requirements set out by the Constitutional Court in the
Van der
Merwe
matter. However, in respect of racketeering
activities 1, 2, 3 and 5, it ruled that the searches conducted were
valid.
It made no ruling on the searches in respect of
racketeering activities 4 and 8, i.e. the searches of the third
appellant’s
house at number 6 Deborah Street, Westering on 11
May 2015 and the second appellant’s car outside Jansenville on
16 August
2015 respectively.
[21]
Counsel for the State conceded, correctly so, that the missing
warrant in respect of racketeering activity
4 in all probability
would have also been invalid. However, he argued that the third
appellant gave consent to the search. In respect
of the search of the
second appellant’s car outside Jansenville, it was submitted
that such search was not the subject of
the trial within trial but
was challenged in the main trial and therefore his right to challenge
such evidence was not impeded.
[22]
It is common cause that the trial court made no determination in
terms of section 35(5) of the Constitution
at the end of the trial
within a trial. Instead it ruled that the State would be allowed to
lead evidence so that it would be able
to make such determination at
the end of the State’s case. Even at the end of the State’s
case no such ruling was made.
[23]
The appellants argued that the trial court erred and committed an
irregularity by not making such determination
at the end of the trial
within the trial. In advancing such argument, it was contended that
the appellants’ right to a fair
trial was impeded, because they
had no idea what evidence was properly before the court.
[24]
Further it was also argued on behalf of the first appellant that,
although he testified at trial, the late
pronouncement on the
validity of some of the searches also impeded his right to challenge
such evidence through cross examination.
[25]
The appellants also argued that the evidence which was obtained
during such searches in respect of racketeering
4 ad 8 was also
unlawfully obtained and should have been excluded in terms of section
35(5) of the Constitution.
[26]
In
S
v Van der Walt
,
[14]
the
Constitutional Court found that the pronouncement on the
admissibility of the exhibits after the accused had closed his case
(at the stage when the main judgment was given) had rendered
the trial unfair, because the accused was ambushed by the late
pronouncement.
[27]
Counsel for the State argued that, the provisions of section 35(5)
places no onus either on the State or
the accused to prove that the
admission of the evidence obtained in an unconstitutional manner
would render the trial unfair or
otherwise be detrimental to the
administration of justice. He submitted that the wording of section
35(5) involves a value judgment
at the end of the case as a whole.
[28]
I disagree with his submission. A ruling on the admissibility of
evidence should be decided at the end a
trial within a trial, or at
the least, at the end of the State’s case.
[15]
The
reason for that is because, at the end of State’s case’
it should be clear to all the parties;(the prosecution and
the
accused) what the case is and what the accused have to meet. In this
matter no determination in terms of section 35(5) was
made either at
the end of the trial within a trial or at the end of the State’s
case.
[29]
When the State’s case was closed the appellants had no idea
what evidence was admissible or not admissible.
In the circumstances,
the trial court committed an irregularity by not making the
determination in terms of section 35(5) at the
end of the trial
within a trial or at the end of the State’s case. I now
turn on to consider the second issue.
The
admissibility of the evidence gained as a result of the searches that
were carried out
[30]
The appellants had objected upfront to the admissibility of the
evidence obtained as a result of the searches
that were carried out,
some with search warrants and others without the search warrants.
Therefore, the trial court had to decide
on the admissibility of such
evidence.
[31]
There are two legs of enquiry in terms of section 35(5). The
court must determine whether the admission
of such the evidence would
render the trial unfair or otherwise be detrimental to the
administration of justice. In
Zuko
v S
,
[16]
Plasket
J
(then) said the following with regard to section 35(5):
“
This
provision seeks to achieve a balance between the due compliance with
the law and the Constitution in the investigation and
prosecution of
crime on the one hand, and the efficiency of the criminal justice
system on the other hand. It does so by providing
for the exclusion
of unconstitutionally obtained evidence if its admission would result
in an unfair trial or prejudice to the
administration of justice. In
doing so, it also allows for admission of unconstitutionally obtained
evidence if that will not result
in an unfair trial or will not be
detrimental to the administration of justice.
”
[32]
In this case, the trial court only decided on the validity and
invalidity of some of the search warrants
and searches, but it did
not test such evidence against the provisions of section
35(5). In
Zuma
v NDPP and Others
,
[17]
Langa
CJ
stressed the importance of an understanding of the range of
protections for the right to privacy at different stages of a
criminal
investigation and trial.
[33]
The appellants argued that the trial court did not make a
pronouncement on the evidence which was obtained
as a result of
invalid warrants and also did not consider the provisions of section
35(5). Therefore, such failure rendered the
trial unfair.
[34]
On the other hand, counsel for the State argued that in respect of
racketeering 6, 7, 9 and 10 the trial
court considered the relevant
evidence in terms of section 35(5) and, found by means of value
judgment, that the searches did not
impact any of the appellant’s
right to a fair trial. He further submitted that, the appellants
failed to show a causal connection
between the unlawful searches and
their right to a fair trial. In addition, he argued that the
trial court correctly allowed
the evidence which was obtained as a
result of the searches to remain on record and to make a value
judgment at the end of the
case as a whole.
[35]
Section 35(5) requires the court to exclude admission of evidence if
its admission would either render the
trial unfair or otherwise be
detrimental to the administration of justice.
[18]
The
court must exercise a value judgment in ascertaining whether either
of the two conditions for exclusion exists.
[19]
[36]
Counsel for the State submitted that, prior to the exclusion of
evidence, a causal relationship, a link,
between the Bill of Rights
violation and the obtaining of the evidence must be established. In
advancing such argument, he argued
that where an accused seeks
exclusion of evidence to be used against him and such evidence was
obtained in violation of a third
party’s constitutional right,
an accused cannot rely on section 35(5) to exclude the evidence
obtained in violation of the
third person’s personal rights.
For this proposition, he placed reliance in a foreign judgment in
R
v Goldhart
1996 107 CC 481.
[37]
In the above-mentioned case, the accused was a joint tenant with one
Mayer. The police suspected that the
accused was cultivating dagga
inside the house but did not have sufficient evidence to obtain a
search warrant. The police approached
the house under pretense that
they wanted to speak to the occupants in order to establish who was
the owner of the house. As they
were walking about the property, they
detected a smell of dagga and on the strength of that information
they obtained a search
warrant. The house was searched and dagga
plants were found. Mayer was arrested and shortly after his
arrest he made an incriminating
statement to the police. He also
pleaded guilty and decided to testify against Goldhart. The
prosecution tried to prove their case
by calling Mayer but the
defence applied in terms of section 24(2) [a provision similar to s
35 (5)] to exclude his testimony on
the basis that it was obtained
from an illegal search. The defence objection was dismissed by the
trial court and Goldhart was
convicted. On appeal to the
Supreme Court, the latter held that, the trial court erred in finding
that Mayer’s testimony
was sufficiently connected to the
improper search to justify the triggering of section 24(2). It
further held that it must
be demonstrated in each case that the
evidence sought to be excluded is not too remote from the initial
Charter breach.
[38]
Based on the above judgment, Counsel for the State submitted that the
appellants failed to show the required
causal connection between the
invalid search warrants and their constitutional rights.
[39]
I disagree. In
S
v Mthembu
,
[20]
it was
held that section 35(5) requires the exclusion of the evidence
unconstitutionally obtained from any person, not only from
the
accused. The fact that those persons whose rights were violated
testified as section 204 witnesses is immaterial. The admissibility
of the evidence that was obtained in violation of their
constitutional right had to be tested against the provisions of
section
35(5). I accept that even though the evidence may have been
obtained unconstitutionally, it would not necessary render the trial
unfair. But before such evidence is admitted the trial court was
required to ascertain whether the admission of such evidence would
not render the trial unfair or otherwise be detrimental to the
administration of justice.
[40]
The trial court did not apply its mind to section 35(5) at all. But
in its judgment, one can see that it
also relied on the evidence
which was obtained as a result of the searches in arriving at its
conclusion that the appellants were
guilty of the charges relevant to
this appeal. I find that to be an irregularity sufficient to render
the trial unfair. It
was compulsory for the trial court to
consider whether the admission of such evidence would not have
resulted in an unfair trial
or would not be detrimental to the
administration of justice. The trial court did not do so. An
important aim of the right
to a fair trial is to ensure that innocent
people are not wrongly convicted.
[41]
As a court of appeal it is not within our powers to make such a
determination in terms of section 35(5) which the
trial court
omitted. Accordingly, as a result of such irregularity by the trial
court, the convictions in respect of the charges
relevant on this
appeal are unsustainable.
[42]
In the light of these findings it is unnecessary for me to consider
the issue of sentence.
[43]
In the circumstances, the following order is issued:
1.
The appeal is upheld.
2.
The convictions of the appellants and the
resultant sentences on counts 1, 2, 4, 5, 6, 7, and 11 are set aside
and replaced with
the finding of NOT GUILTY. The appellants are
accordingly acquitted and discharged on those charges.
N
GQAMANA
JUDGE
OF THE HIGH COURT
I
agree:
N
G BESHE
JUDGE
OF THE HIGH COURT
I
agree:
P
H S ZILWA
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
for 1
ST
Appellant
Adv
F van Zyl SC and H Bakker
Instructed
by
Danie
Gouws Inc. Attorneys
Gqeberha
Counsel
for 2
nd
and 3
rd
Appellants
Adv
E Theron
Instructed
by
Legal
Aid South Africa
Gqeberha
Counsel
for the Respondent
Adv
M L Le Roux
Instructed
by
Director
of Public Prosecutions
Makhanda
Heard
on
7
August 2023
Judgment
Delivered on
23
January 2024
[1]
Count
1, unlawful management of the operation or activities of an
enterprise and knew that any person whilst employed by or associated
with that enterprise, conduct or participate in the conduct,
directly or indirectly, of such enterprise’s affairs through
a
pattern of racketeering activity. Count 4, unlawful engaging
in fishing, collecting, disturbing, keeping, controlling,
storing,
transporting or be in possession of abalone without a permit.
[2]
Count
1, Contravention of Section 2(1)(f) read with sections 1, 2(2),
2(3), 2(4) and 3 of Act 121 of the Prevention of Organised
Crime Act
121 of 1988 (POCA); 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. Count 2, Contravention of Section 2(1)(e)
read with
sections 1, 2(2), 2(3), 2(4) and 3 of the Prevention of Organised
Crime Act 121 of 1988 (POCA); managing or employed
by or associated
with any enterprise, conducts or participates in the conduct
directly or indirectly, of such enterprise affairs
through a pattern
of racketeering activity. Count 7, Contravention of regulation
36(1)(a) read with the 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
. Count
8, Fraud. Count 9, Forgery and Uttering. Count 10, the
Contravention of
Section 12(a)
read with section 1, 34 and 89 of the
National Road Traffic Act 93 of 1996 (Driving without a driver’s
license).
Count 11, 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 51 of 1977
.
[3]
Count
2, Contravention of
Section 2(1)(e)
read with
sections 1
,
2
(2),
2
(3),
2
(4) and
3
of Act 121 of 1998 (POCA) managing or employed by
or associated with any enterprise, conducts or participates in the
conduct,
directly or indirectly, or such enterprise’s affairs
through a pattern of racketeering activity. Count 6,
Contravention
of regulation 36(1)(a) read with regulation 96 of the
Regulations promulgated in Government Notice R1111 and published in
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
.
[4]
Count
4.
[5]
Counts
5 and 6.
[6]
Count
7.
[7]
Count
11.
[8]
Racketeering
Activity 1.
[9]
Racketeering
Activity 2.
[10]
Racketeering
3.
[11]
Racketeering
Activity 5.
[12]
Racketeering
Activity 8.
[13]
2011
(2) SACR 301
(CC) at 316–317.
[14]
2020
(2) SACR 371 (CC).
[15]
S v
Molimi
[2008] ZACC 2
;
2008 (3) SA 608
(CC) para [54] and S v Ndhlovu
2002 (6) SA
305
(SCA) at para [18].
[16]
2009
(4) All SA 89 (E).
[17]
2008
(2) SACR 421 (CC).
[18]
S v
Soci
1998 (2) SACR 275
(E).
[19]
S v
Pillay 2004 (2) SACR 419 (SCA).
[20]
[2008]
3 All SA 517
(SCA).