Lachman v S (432/09) [2010] ZASCA 14; 2010 (2) SACR 52 (SCA) ; [2010] 3 All SA 483 (SCA) (15 March 2010)

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[2010] ZASCA 14
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Lachman v S (432/09) [2010] ZASCA 14; 2010 (2) SACR 52 (SCA) ; [2010] 3 All SA 483 (SCA) (15 March 2010)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 432/09
AKASH LACHMAN
Appellant
and
THE STATE
Respondent
Neutral citation:
Lachman
v The State
(432/09)
[2010] ZASCA 14
(15 March 2010)
Coram:
MTHIYANE, VAN
HEERDEN JJA and
GRIESEL AJA
Heard:
19 February 2010
Delivered:
15 March 2010
Summary:
Evidence –
whether police conduct amounted to a trap or an unlawful search –
whether evidence discovered as a result is admissible
– whether
circumstantial evidence sufficient to prove appellant’s guilt.
____________________________________________________________________
ORDER
____________________________________________________________________
On appeal from:
The
Eastern Cape High Court (Grahamstown) (Kroon and Pickering JJ
sitting as a court of appeal from a regional court):
The appeal is dismissed.
__________________________________________________________
JUDGMENT
__________________________________________________________
Griesel
AJA (Mthiyane and Van Heerden JJA concurring):
The
appellant was convicted in the regional court, sitting in East
London, on a charge of corruption in contravention of s 1(1)(
b
)
of the Corruption Act 94 of 1992.
1
The essence of the charge was that, whilst employed as an auditor in
the East London office of the South African Revenue Service
(SARS),
the appellant corruptly attempted to solicit a bribe from a certain
Mr Kwame Mokoena as a reward for assisting the latter
to make his
tax problems ‘go away’, which actions constituted an excess of
his powers or a neglect of his duties as such auditor.
After
his conviction, the appellant was sentenced to five years’
imprison­ment of which two years were con­ditionally
sus­pended. His appeal to the Eastern Cape High Court,
Grahamstown against the conviction and sen­tence was
un­successful,
hence this further appeal against his
con­viction,
2
which comes before us with leave granted by this court.
Factual background
The
evidence of Mokoena was that he was at all material times the owner
of a business entity styled Investorex trading as Kwasaka
Agencies.
He was registered with the East London branch of SARS as a vendor
liable to pay Value Added Tax (‘VAT’). His file
at SARS was
attended to by the appellant in his capacity as auditor, together
with another auditor, a certain Ms Sabrina Taylor.
On
23 September 2003 Mokoena received a telephone call from the
appellant who sought certain details relating to Mokoena’s tax
affairs. Mokoena made an appointment to see the appellant at the
SARS offices later that same day to discuss the matter. At the
interview, the appellant pointed out to Mokoena that he had not
submitted his tax returns and that SARS had decided to conduct
an
audit of his business affairs. Mokoena was accordingly requested to
submit certain further information to SARS.
Shortly
after the interview, on his arrival at home, Mokoena received an
anonymous text message (commonly referred to as an ‘SMS’,
an
abbreviation for ‘short message service’) on his cellphone,
emanating from a cellphone with the number 0726786492. The message
was to the following effect:
‘
I
can help you with your tax affairs, you have got problems and I can
help you with your tax affairs.’
Mokoena
was instructed by the anonymous author not to call the number from
which the SMS was sent, but to reply only via SMS as
it was
dangerous to talk over the telephone, with the sender working at
SARS.
Later
that evening Mokoena received further SMSs from the same cellphone
number, one advising him that he would only have to pay
SARS the
amount of R10 000 in order to get all his books with SARS up to
date and another one requesting him to pay R60 000
‘in order
to make [his] problems with the Receiver disappear’. After
commenting to his wife that the person was playing a game
with him,
and that he did not know what it was all about, he sent an SMS in
reply to the effect that he only had R30 000 available.
The
response thereto was to the effect that, ‘I am doing you a favour,
that’s only half the amount and I am doing you a favour’.
The
following day Mokoena received a further SMS enquiring when he would
have the money available. He decided to ignore this SMS,
as also
further SMSs he received that day. A few days later he received a
fax from the SARS offices, co-signed by Ms Taylor and
the appellant,
requesting a list of his assets and his banking and other details.
Receipt of the fax was followed by another SMS
to the following
effect: ‘I work at SARS; nobody can help you but me. Not even your
accountant can help you.’ A further SMS
followed shortly
afterwards, enquiring whether Mokoena had received the fax.
Mokoena
subsequently had another meeting with the appellant at the SARS
offices during which the appellant informed Mokoena that
the Special
Investigating Unit of SARS intended to charge him and secure a
criminal conviction for tax evasion. The appellant highlighted
the
seriousness of the matter. Within 20 or 30 minutes of his leaving
the SARS offices Mokoena received another SMS that canvassed
the
same aspects that had been raised with him by the appellant during
the earlier meeting. Mokoena described his bemusement at
these
events as follows:
‘
And
by this time I was just very, very, very suspicious as to how things
were developing. Every time I received a fax, I’d get an
SMS. Every
time I received a call or I spoke to somebody, I’d receive an SMS.’
The
SMSs continued thereafter, Mokoena stating that in total he probably
received more than 200 of them over a period of just over
three
weeks. All the SMSs emanated from the same cellphone number.
On
Monday, 13 October 2003, Mokoena received a further SMS instructing
him to pay R20 000 or ‘the deal was off’, thus leaving
him
to face the consequences of the investigation by the special
investigating unit. By this time, according to Mokoena, he realised
that he could not trust anybody at SARS ‘as I felt as though I was
either being framed or trapped or pressured into something’.
He
accordingly consulted his attorney, who advised him to enlist the
services of a private investigator. He thereupon approached
Mr
Tyrone Power, a private investigator, who advised him to ‘play
along’ with the author of the SMSs while Power undertook
to
contact SARS.
Matters
came to a head on the morning of Thursday, 16 October 2003, when
Mokoena received a further SMS instructing him to deliver
the
R20 000 to the author at the offices of SARS in East London.
Mokoena drew R20 000 in notes, whereafter he, together
with his
attorney, Mr Malusi, met Power at the latter’s office. There Power
introduced him to Captain Buys and Inspector McIntyre
of the
Organised Crime Unit of the South African Police Service, who had in
the interim been contacted by Power. Whilst he was
with Buys at
Power’s office, Mokoena received a further series of SMSs asking
whether he had the money ready. Upon ultimate con­firmation
by
Mokoena that the money was available, he was instructed by the
anonymous author via SMS to place the money in an envelope addressed
to ‘Mr Nkula c/o Riette Fellows’, marked ‘Private and
Confidential’, and to deliver the envelope to the reception desk
at the SARS offices, the receptionist to be informed that the
envelope had to be taken to Ms Fellows’ desk. Buys accordingly
marked an envelope as instructed and placed the money in the
envelope. At the suggestion of Buys, only R5 000 was placed in
the envelope, instead of the R20 000 demanded in order to
reduce the risk of the money being lost. Prior to placing the money
into the envelope, the relevant notes (or at least some of them)
were photo-copied in Power’s office so as to facilitate later
identification.
Buys
then set about making arrangements for the operation to be carried
out. Thus he enlisted the services of Malusi’s driver
to deliver
the envelope at the SARS reception desk; he arranged for a member of
Power’s staff to video the delivery of the envelope
and the
collection thereof by whomever came to collect it; he secured
permission from Ms Perks, a member of the investigative personnel
of
SARS, for Buys and McIntyre to station themselves inside the SARS
building before the delivery and collection of the envelope
took
place. He also applied telephonically to the relevant police
official for the necessary per­mission to conduct a covert
operation, which was duly authorised.
On
arrival at the SARS offices Buys and McIntyre took up position in a
storeroom, from which vantage point they had a view of the
passage
between the appellant’s office and the stairway leading down to
the ground floor and the reception area. A further police
officer,
Inspector Mbiko, was stationed in the reception area for the purpose
of witnessing the delivery and collection of the
envelope. An
employee of Power with a concealed video camera was with him. Power
and Mokoena remained in Power’s car, which was
parked in the
street outside the SARS building.
In
due course Malusi’s driver entered the SARS building with the
envelope, approached Ms Cousins, the SARS employee on duty at
the
reception desk, and advised her that he had come to drop off an
envelope for Ms Fellows. Ms Cousins had earlier been alerted
by the
appellant that an envelope would be dropped off later that morning
for either him or Ms Fellows. Upon arrival of the envelope,
Ms
Cousins accordingly telephoned the appellant to advise him of this
fact. The appellant came down to the reception area and Ms
Cousins
pointed out the man who was still holding the envelope. The
appellant simply collected the envelope and immediately returned
to
his office upstairs. On the way, Mbiko followed him, calling out to
him to stop, but he simply carried on walking. He went into
the
office of Ms Fellows, who to his knowledge was not at work that day,
and left the envelope on her desk. On exiting from that
office he
was confronted by Buys and McIntyre. They retrieved the envelope
from Ms Fellows’ office and informed the appellant
that he was
suspected of corruption. The appellant was searched and a
silver-coloured cellphone was found on his person. At Buys’s
request the appellant accompanied the police to his desk. A search
there revealed another cellphone, blue-coloured, in a partly
opened
desk drawer, which cell­phone was being charged.
The
appellant was then requested to accompany the police to their
offices at the Cambridge police station. At those offices Buys
telephoned the cellphone number from which the SMSs had been sent,
but neither the silver cellphone nor the blue cellphone rang
in
answer to the call. Buys thereupon commented to McIntyre that he
wanted to return to the appellant’s office to perform a further
search for a cellphone or a SIM card from which the incriminating
SMSs originated. Upon hearing this, the appellant immediately
responded that he would not be ‘responsible’ for anything else
that might be found on his desk. McIntyre and Power then returned
to
the SARS premises, accompanied by the appellant, while Buys followed
a short while later.
During
the ensuing search by McIntyre and Power of the appellant’s desk,
a brown-coloured cellphone was found on top of the desk,
under some
papers and/or files. Power noticed on the cell­phone’s call
register a number of missed calls made from his (Power’s)
cellphone. He testified that he had earlier that morning dialled the
number from which the SMSs had emanated in order to see whether
anyone would answer.
On
Buys’s arrival at the SARS offices the brown cellphone was handed
to him. He again dialled the ‘guilty’ number and this
time the
brown cellphone either rang or silently vibrated (Buys could not
remember which), thus confirming that it was the cellphone
they had
been looking for. Buys accordingly arrested the appellant and
returned to the offices of the Organised Crime Unit.
On
going through the call registers on both the brown cellphone and the
silver cellphone, Buys observed that on both phones messages
containing the name ‘Hongfu’ were stored. (The message on the
silver phone was dated 15 October 2003). Asked for an explanation
the appellant declined to offer an answer.
Ms
Fellows, who was the team leader of the audit section of SARS, East
London, of which the appellant was also a member, testified
that she
was not at work on the day in question but was on sick leave, having
been admitted to hospital. The members of her team,
including the
appellant, knew that she would not be at work that day. She further
testified that she did not know a man named Nkula
or of the fact
that any envelope was to be delivered to her office on the day in
question.
The appellant’s evidence
The
appellant denied any knowledge of the SMSs about which Mokoena
testified. He claimed that on the morning in question he was
in his
office when he received a telephone call from an unknown man, who
asked to speak to his manager, Ms Fellows. He advised
the caller
that she was not at work and would only be returning to work the
following Monday. The caller stated that he had important
business
with Ms Fellows and insisted on seeing her. On the appellant’s
inquiry as to the man’s details, including his name
and VAT
number, the caller merely gave his name a few times, which he
pronounced differently each time. The appellant offered to
assist
the man with what­ever his query was, but he was told that the
caller had information for Ms Fellows. The appellant
told him that
he could bring the information (which the appellant assumed was in
documentary form) in to the SARS offices and he
would ensure that it
reached Ms Fellows. The caller said that he would be there within 45
to 60 minutes. The appellant accordingly
advised Ms Cousins, while
leaving documentation with her for collection by an accountant, that
a man, whose name was either Ntula
or Nkula, would be coming in.
When Ms Cousins telephoned him some time later, he went downstairs,
where Ms Cousins pointed out
a man. The man handed the appellant an
envelope and, when asked if he was Mr Ntula or Mr Nkula, the man
‘basically just nodded
and walked away’. The appellant saw Ms
Fellows’ name on the envelope ‘and took for granted that that
was the gentleman I
spoke to’. He accordingly put the envelope on
Ms Fellows’ desk.
On
leaving her office, he was confronted by Buys and McIntyre. The
appellant confirmed, in broad outline, their evidence as to

subsequent events, including the discovery of the brown cellphone on
his desk. However, the appellant denied that the brown cellphone
belonged to him, claiming that he had never seen it prior to that
day nor had he ever owned a brown cellphone. He surmised that
some
unknown person must have ‘planted’ it there between the first
and second search by the police. He also suggested, under
cross-examination, that there might have been a conspiracy against
him and that his former colleagues who testified on behalf of
the
state could have been ‘coaxed into saying it’. Asked by whom,
the appellant replied that he had ‘no idea’.
Findings of the trial court
In
a comprehensive judgment, the magistrate dealt fully with the
evidence presented on behalf of the state and the defence. In

discussing the credibility of the state witnesses, the
magistrate
found that, as a witness, Mokoena was ‘sometimes evasive and did
not always answer simple questions’. He was nonetheless satisfied
that Mokoena did indeed receive the series of SMSs with the general
tenor as explained by him. There is ample support in the record
for
this finding, which was not seriously challenged on appeal.
The
magistrate also made favourable credibility findings in respect of
the other state witnesses, including the two women who shared
an
office with the appellant.
The
appellant’ version, on the other hand, was rejected by the
magistrate as ‘totally non­sensical’.
The admissibility of the ‘trap’
At
the trial, as also on appeal before the high court and this court,
the main argument advanced on behalf of the appellant was
that the
police operation amounted to a trap. In fact, this defence was
raised up front by the appellant’s attorney in his plea
explanation in terms of
s 115
of the
Criminal Procedure Act 51
of 1977
at the commencement of the trial, when he informed the court
that ‘the evidence relating to the trap is inadmissible in that

the state has not complied with the provisions of
s 252A
of the
Criminal Procedure Act, in
particular that the trap itself was
unlawful. And secondly, that the evidence obtained from the trap is
inadmissible.’
In
the light of this clear indication from the defence as to where the
battle lines had been drawn, one would have expected this
relatively
crisp issue to have been determined separately by way of a
trial-within-a-trial,
3
after the defence had been required to furnish ‘the grounds on
which the admissibility is challenged’, as they were duty bound
to
do in terms of the provisions of
s 252A(6).
4
anc" HREF="#sdfootnote4sym">
4
It is unfortunate that this course was not followed by the
magistrate. Instead, all the evidence was adduced in the ordinary
course
and the cross-examination ranged far and wide across areas
that turned out to be entirely irrelevant and un­contentious.
Be
that as it may, both courts below rejected the appellant’s
contention that the police conduct in question fell within the ambit
of a trap. On appeal before us, the argument advanced on behalf of
the appellant, was based on a
dictum
by
Holmes JA in
S
v Malinga & others
,
5
where a trap was described as –
‘
. . . a
person who, with a view to securing the conviction of another,
proposes certain criminal conduct to him, and
himself ostensibly
takes part therein. In other words he creates the occasion for
someone else to commit the offence.’
Building
on this foundation, counsel argued that the operation conducted by
the police on the day in question fell within the ambit
of a trap
because ‘a proposal was made by the police that an SMS be
forwarded indicating that the money was available to be paid
over to
the recipient of the SMS and inviting the recipient to indicate how
and where the money was to be handed over’.
There
is no merit in this argument. Having regard to the persistent series
of SMSs addressed to Mokoena by the anonymous author,
it is
far-fetched in the extreme now to cast Mokoena (or the police, for
that matter) in the role of offeror. Quite clearly the
proposal for
criminal conduct all along emanated from the anonymous author of the
SMSs and from no-one else.
In
a careful analysis of the problem, the high court distinguished
three different scenarios: one is where the trap creates the
opportunity to commit a crime for someone who, but for the trap,
would not have committed the crime. A second scenario occurs where
the ‘trap’ merely creates such an opportunity for someone who
wanted to commit the particular offence – and would have done
so
in any event, even without the trap’s influence.
6
A third category is present, according to the high court, ‘where
the accused is himself or herself the initiator of the incriminating
transaction and instigates the “trap” to conclude the
transaction with him or her and the trap merely ostensibly
participates
therein, and in that sense creates the opportunity for
the commission of the crime.
A fortiori
the accused in such a
case commits the crime without any influence from the trap’.
7
The
high court rightly held that the conduct of the police, in
conjunction with Mokoena and the other persons who parti­cipated
in the operation, did not fall within either of the first two
categories, but that it rather fell within the third category.
Counsel
for the state aptly described the operation in question as
nothing more than a ‘controlled delivery’.
8
In my view, this is exactly what happened here: an unknown suspect
had made repeated overtures to the complainant, Mokoena, in
an
attempt corruptly to solicit a bribe from him. Those overtures
persisted over a period of more than three weeks by means of
a
barrage of well over 200 SMSs. This behaviour on the part of the
suspect made it clear that he was prepared to indulge in corrupt
activities. All that Mokoena did, with the assistance of the police,
was to create the oppor­tunity for the suspect to consum­mate
the corrupt transaction; he did nothing to encourage or solicit the
commission of the crime. Apart from conveying to the suspect
that he
(Mokoena) was prepared to participate in the corrupt scheme proposed
by the former, Mokoena simply alerted the police to
what was going
on, thus enabling them not only to plan and witness the controlled
delivery, but also to apprehend the suspect in
the act.
This
scenario is analogous to the situation where a kidnapper demands a
ransom from the kidnapped victim’s family. If the family
should
inform the police of the pre-arranged time and venue for delivery of
the ransom, could it ever be suggested that the police
used the
victim’s family as a trap if the police should turn up to witness
the delivery of the ransom and to arrest the culprit?
The answer
must surely be no.
In
the circum­stances, I am satisfied that the police conduct in
question did not amount to a trap. But even if it were to be
accepted for purposes of argument, contrary to this finding, that
the conduct did in fact amount to a trap, then it is clear to
me
that the conduct of the police did not go beyond providing an
opportunity for the appellant to commit an offence, in which event
such evidence is
ipso facto
admissible in terms of s 252A(1)
of the Act. Counsel who appeared for the appellant at the trial and
on appeal to the high
court conceded that the conduct in question
did not go beyond providing an opportunity to commit an offence. On
appeal before us,
new counsel for the appellant sought to retract
that concession. However, in the light of all the evidence I am
satisfied that
the concession by the appellant’s original counsel
was rightly made, with the result that the provisions of s 252A(3)
did
not come into play and the evidence surrounding the police
operation on the day in question and what it produced was rightly
admitted
by the magistrate.
Search and seizure
A
second string to the appellant’s bow was an argument that the
police discovered the brown cellphone in the course of an unlawful
search by the police. This is so, according to the argument, because
the search was conducted without a search warrant, but without
satisfying the requirements of s 22 of the Criminal Procedure
Act. Paragraph (a) of the section provides that a police official
may without a search warrant search any person or container or
premises for the purpose of seizing any article referred to in s 20
9
if the person consents to the search for and the seizure of the
article in question. Paragraph (b) of s 22 creates a second
ground of validation for a search without a warrant. This applies
if
a police official on reasonable grounds believes (i) that a search
warrant will be issued to him under paragraph
(a)
of s 21(1) if he applies for such
warrant; and (ii) that the delay in obtaining such warrant would
defeat the object of the
search.
In
the present case, the high court found that the appellant had in
fact consented to the search, both of his person and his desk.
In
this regard, the appellant testified as follows:
They
[ie Buys and McIntyre] confronted me and asked me if they can search
me, I said yes.
They did ask you? --- Yes, well they actually
said that we are going to search you, they didn’t say can we search
you.
…
Court: Can you just repeat to that how did it happen
that you consented to the search? --- I think my exact words were
sure, they
said we are going to search you now and I said sure search
me.
It
was argued on behalf of the appellant that the state could not rely
on the consent ostensibly given by the appellant because
he was not
advised, prior to the search, (a) that he could object to any
search, or (b) that any article seized during
the search could
be used in evidence against him. The high court held that this
circum­stance was ‘neither here nor there’
and dealt with
the argument as follows:
10
‘
As
regards the second aspect [(b) above] it need merely be commented
that it was obvious that if anything incriminating was found
it would
constitute evidence against him and would be used as such. As regards
the first aspect [(a) above], counsel did not point
to any provision
requiring the police to advise a subject that it was open to him to
refuse to allow a search to be undertaken. (It
may be recorded that
even if the appellant had refused consent for the desk to be
searched, the ultimate result, the retrieval of
the cellphone, would,
for the reasons stated below, still have followed).
The
issue of legal representation is relevant here as well. Had an
attorney been engaged by the appellant he would have adopted one
of
two courses: after consult­ation with the appellant he would have
advised him to consent to the search or he would have insisted
on
Buys obtaining a search warrant. In the latter event Buys would have
adopted one of two courses. He would either have invoked
s 22(b)
and proceeded with the search and seizure on the basis that he had
reasonable grounds to believe that a search warrant
would be issued
to him under s 21(1)(a) should he apply therefor and that the
delay in obtaining the warrant would defeat the
object of the search.
Alternatively, he would have taken steps to secure the appellant’s
desk pending his return with the search
warrant. The retrieval of the
cellphone would have been the inevitable result.
I
would record that in any event I would, in weighing up the competing
consider­ations (as to which see eg
S v Hena & another
2006 (2) SACR 33
(SE)) have con­cluded that the admission of
the evidence of the finding of the brown cellphone did not result in
an unfair trial
or bring the administration of justice into
disrepute.’
The
high court accordingly concluded that the evidence in question was
correctly admitted. I agree with the above reasoning and
share the
conclusion arrived at by the high court. I wish to add that no
challenge was directed at the police conduct in order
to establish
whether, subjectively, they held the relevant belief, as
contemplated by s 22(b), when conducting the search.
Looking at
the matter objectively, however, I am satisfied that, had such a
challenge been advanced by the defence, the police
conduct could
have been justified on those grounds as well.
Rights of a suspect
The
high court in the course of its judgment
11
also embarked on an
excursus
in relation to the question
whether someone who is neither an arrested nor detained nor accused
person, but merely a suspect, has
the rights conferred upon those
categories of persons in terms of s 35 of the Constitution
12
and, if not, what pre-trial rights a suspect does have in respect of
the aspects which are the subject of those rights. The court
referred
inter alia
to the different approaches followed in
some of the divisions of the high court with regard to this
question, leading to con­flicting
decisions on the subject.
13
In
the view that I take of the matter, it is not necessary for purposes
of this judgment to reach any firm conclusion with regard
to the
question raised and I expressly refrain from doing so. The fact is
that none of the evidence that has been admitted has
been obtained
in violation of any of the rights contained in s 35, nor has
the admission of such evidence rendered the trial
of the appellant
unfair in any way.
Circumstantial evidence
Having
disposed of the ‘technical’ objections raised against the
evidence adduced by the state, it now remains to consider the
evidence on record in order to answer the question whether the state
has succeeded in proving the guilt of the appellant beyond
reasonable doubt. I bear in mind in this regard that circumstantial
evidence should never be approached in a piecemeal fashion.
The
court should not subject each individual piece of evidence to a
consideration of whether it excludes the reasonable possibility
that
the explanation given by an accused is true. The evidence needs to
be considered in its totality.
14
Based
on the evidence, the following findings by the
magistrate
are not open to doubt: that all the incriminating SMSs originated
from the same cellphone number referred to earlier; that they
all
referred to Mokoena’s tax problems with SARS; and that the author
of the SMSs must have been someone inside SARS with knowledge
of
those tax problems. Against the background of the circumstantial
evidence as a whole, the further inference seems irresistible
that
the number from which the SMSs were sent belongs to the brown
cellphone. It thus appears that the case revolves largely around
the
question of ownership of the brown cellphone.
With
regard to this question, there was direct as well as circumstantial
evidence linking the brown cellphone to the appellant.
First, the
brown cellphone was found on his desk during the second search.
Second, the state presented the evidence of two colleagues
who had
seen the appellant using a brown cell­phone on different
occasions. In this regard, the witness Lusizi, who shared
the same
office with the appellant, saw him using a brown cell­phone ‘for
a long time’ on the morning of his arrest. Moreover,
both the
appellant’s two colleagues who were in the office when the first
and second search of the appellant’s desk took place
confirmed
that no-one had entered the office between the two searches. It was
not suggested to either of them that they had ‘planted’
the
brown cellphone on the appellant’s desk or that either of them was
part of a conspiracy to falsely implicate the appellant
.
None of them appeared to bear any malice towards the appellant.
This
evidence on behalf of the state becomes even more compelling when
weighed against the improbability of the appellant’s total
denial
of all knowledge of the brown cellphone. As
pointed
out above,
his version, which is entirely speculative, was
that the cellphone must have been ‘planted’ on his desk by an
unknown person
in a delibe­rate attempt to frame the appellant.
No likely suspect was identified by the appellant, nor does the
evidence suggest
any. The appellant even sought to place in issue
the colour of the cellphone by suggesting that it was ‘reddish
brownish’,
but ‘more red’. This same theme was pursued (albeit
without much enthusiasm) by counsel in argument before us in an
attempt
to cast doubt on the identification of the brown cellphone
by the state witnesses. However, this point is decisively dealt by
the
magistrate in his judgment, where he recorded that the colour of
the cellphone is ‘predominantly brown’.
It
follows
, in my view, that the link between
the appellant and the brown cellphone has been established beyond
reasonable doubt, with the
corrolary that he was the person who sent
the series of incrimnating SMSs to Mokoena.
As
rightly pointed out by the
magistrate
,
even in the absence of the brown cellphone, the remaining
circumstantial evidence would have been sufficient to convict the
appellant.
In this regard, reference may be made to the following
circumstances (to name but a few):
(a) The appellant was one of two
auditors in the SARS office to whom Mokoena’s file had been
assigned. He was accordingly one of
the SARS officials most likely to
have had contact with Mokoena in connection with his tax affairs.
(b) The proximity in time between
the contact between the appellant and Mokoena – either in person or
via fax – and the receipt
by the latter of various SMSs relating to
such contact is highly suspect and is consistent with an inference
that the appellant was
the person responsible for sending the SMSs.
15
(c) The receipt by the appellant
of the envelope containing the ‘bribe’, his prior knowledge of
its expected delivery, as well
as the fact that it would emanate from
a certain Mr ‘Nkula’ (or ‘Ntula’) – exactly in accordance
with the instructions
contained in the earlier anonymous SMS to
Mokoena – are highly incrimi­nating features, consistent with
his guilt.
(d) The appellant’s demeanour
when confronted by Buys and McIntyre was noteworthy and indicative of
guilty knowledge on his part.
Buys described his demeanour as
‘clearly nervous’ and added:
‘
He
was so nervous as such that I could see his lips shaking. They were –
how can one describe it, it’s as if someone – or a
child was
caught out smoking without his father knowing for instance. He had
that completely surprised look.’
(e) The appellant falsely denied
any involvement in the commission of the offence and falsely denied
any connection with the brown
cellphone. In the light of the
incriminating nature of the evidence relating to that cellphone, the
court is justified, in my view,
in drawing an adverse inference from
the appellant’s false denials.
16
The
following well-known observations from
Best on Evidence
17
are particularly apposite in the present scenario:
‘
A
number of circumstances, each individually very slight, may so tally
with and confirm each other as to leave no room for doubt of
the fact
which they tend to establish. . . . Not to speak of greater numbers,
even two articles of circumstantial evidence, though
each taken by
itself weigh but as a feather, join them together, you will find them
pressing on a delinquent with the weight of a
mill-stone. . . ’.
Based on the circumstantial
evidence in this case, I am satisfied that the state has proved the
guilt of the appellant beyond all
reasonable doubt. In the result
the appeal is dismissed.
B
M Griesel
Acting Judge of Appeal
APPEARANCES:
FOR APPELLANT: B
P GEACH SC
Instructed by:
Neville Borman & Botha, Grahamstown
Hill,
McHary & Herbst Inc, Bloemfontein
FOR RESPONDENT: N
HENNING
Instructed by:
The Director of Public Prosecutions, Grahamstown
The
Director of Public Prosecutions, Bloemfontein
1
Since repealed and replaced by the
Prevention and Combating of
Corrupt Activities Act 12 of 2004
, which came into operation on 27
April 2004.
2
Although the question of sentence was also addressed in the heads of
argument filed on behalf of both parties, the appellant’s
notice
of application for leave to appeal to this court was expressly
confined to the conviction. Furthermore, the order of this
court
simply recorded that ‘special leave to appeal is granted to the
Supreme Court of Appeal’, without including sentence
in the scope
of the appeal. In the circumstances, no proper appeal against
sentence is before us, as counsel for the appellant
rightly conceded
at the commencement of his address to this court.
3
As to the desirability of holding of a trial-within-a-trial, see
S
v Matsabu
2009 (1) SACR 513
(SCA) para 8. See also
s 252A(7)
of the
Criminal Procedure Act, which
provides that the question
whether evidence should be excluded in terms of subsec (3) may, on
application by the accused or the
prosecution, or by order of the
court of its own accord be adjudicated as a separate issue in
dispute.
4
See
S v Kotzè
2010 (1) SACR 100
(SCA);
[2009] ZASCA 93
(15/9/09) para 19.
5
1963 (1) SA 692
(A) at 693F–G.
6
See eg
S v Dube
2000 (1) SACR 53
(N).
7
Judgment para 77.
8
This expression is also used in the joint guidelines issued by all
DPPs in 2004 in terms of
s 252A(4).
See
Hiemstra’s
Criminal Procedure,
at 24-119 (Issue 2).
9
Including an article which is concerned in or is on reasonable
grounds believed to be concerned in the commission or suspected
commission of an offence, or which may afford evidence of the
com­mission or suspected commission of an offence, which
description
would clearly include the brown cellphone.
10
Judgment paras 102–105.
11
Paras 90–94.
12
Constitution of the Republic of South Africa, 1996.
13
See eg
S v Sebejan & others
1997 (1) SACR 626
(W),
1997
(8) BCLR 1086
(W);
S v Orrie & another
2005 (1) SACR 63
(C);
S v Mthethwa
2004 (1) SACR 449
(E).
14
S v Reddy & others
1996 (2) SACR 1
(A) at 8
c–d
.
15
Compare para 8 above.
16
S v Rama
1966 (2) SA 395
(A) at 400G–H;
S v Steynberg
1983 (3) SA 140
(A) at 146A–148D;
S v Mtsweni
1985 (1) SA
590
(A) at 593I–594D.
17
10ed at p 261, quoted with approval in
S v Reddy
above at
8
h–j
and
S v Mcasa & another
2005 (1) SACR 388
(SCA) para 13.