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[2010] ZASCA 73
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Dos Santos and another v The State (726/07) [2010] ZASCA 73; 2010 (2) SACR 382 (SCA) ; [2010] 4 All SA 132 (SCA) (27 May 2010)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 726 / 07
In
the matter between:
ANTONIO
CESAR ALVES DOS SANTOS First Appellant
SIKHOSIPHO DERICK MBATHA
Second Appellant
and
THE
STATE
Respondent
Neutral
citation:
Dos Santos and another v The State
(726/07)
[2010] ZASCA 73
(27 MAY 2010)
BENCH: CLOETE
and PONNAN JJA and MAJIEDT AJA
HEARD: 3 MAY 2010
DELIVERED: 27 MAY 2010
CORRECTED:
SUMMARY:
Diamonds Act 56 of 1986 – convictions
of dealing in unpolished diamonds. Prevention of Organised Crime Act
121 of 1998 (POCA)
– pattern of racketeering – requires
proof of a fact which a conviction of the Diamonds Act does not –
no improper
splitting of charges. Evidence – admissibility of
seized items pursuant to an admittedly defective warrant – s
35(5)
of the Constitution does not provide for an automatic exclusion
of evidence obtained in violation of an accused’s rights –
fairness requires that a balance be struck – accomplices –
exercise of caution must not be allowed to displace common
sense –
circumstantial evidence - not to be approached piece-meal. Sentence
– grossly divergent sentences between
the two appellants –
disturbingly inappropriate – warranting appellate interference.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from
:
Western Cape High Court
(Cape Town) (Le Grange AJ sitting as court of first instance):
(1)(a) The first appellant’s convictions for contravening s 21
of the Diamonds Act 56 of 1986 are altered to convictions
for
contravening s 20 of that Act.
(b) Save as is set out in para 1(a), the first appellant’s
appeal is dismissed.
(2)(a) The second appellant’s conviction for contravening s 21
of the Diamonds Act 56 of 1986 is altered to a conviction
for
contravening s 19 of that Act.
(b) Save as set out in para 2(a), the second appellant’s
appeal against his conviction is dismissed.
(c) The appeal of the second appellant against sentence succeeds to
the extent that the sentence imposed on him is set aside and
in its
stead is substituted the following:
‘Accused number 6 is sentenced to pay a fine of R 20 000 or in
default of paying the fine to a term of imprisonment for a
period of
one year of which R 10 000 or six months’ imprisonment is
suspended for a period of five years on condition that
he is not
convicted of a contravention of sections 18, 19, 20 or 21 of the
Diamonds Act 56 of 1986, committed during the period
of suspension’.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PONNAN JA ( JA and AJA concurring):
[1] Port Nolloth, notwithstanding its relatively
small community of approximately 12 000 residents and some 220
businesses,
has become, so the evidence suggests, a hotbed of illicit
diamond dealing and related activity. The reason is not hard to find
- it is its proximity to rich veins of alluvial diamonds, established
diamond mines and mining houses. It and other towns close
to the
Namibian border have witnessed a proliferation of diamond dealing
syndicates. Because of the corrupting and generally corrosive
influence that with time becomes all too pervasive in such
communities, a task team of the now disbanded Directorate of Special
Operations commonly known as the Scorpions, under one of its special
investigators, Koos Jooste, was established. It was not the
only
operation of its kind, nor was it the first. It followed the South
African Police Service (SAPS) operations such as Steenbra
and
Solitaire in that general geographical area.
[2] For reasons that are not necessary to recount,
the first appellant, Tony dos Santos, became the focus of this
particular task
team. On 17 January 2003, the task team sought and
obtained from the judge designated in terms of s 31 of the
Interception and
Monitoring Prohibition Act
1
an order in terms of s 2(2) authorising a surveillance operation of
Tony's Auto Spares, a business enterprise managed and operated
by the
first appellant in Port Nolloth. Given that the premises housing
Tony's Auto Spares was secured by a high perimeter wall
and monitored
by CCTV cameras, Jooste secreted a pinhole camera in what came to be
described in the evidence as the ‘buyer’s
room’ of
the building. From it, video images and audio feed was transmitted by
radio link, in real time, to a house approximately
one and a half
kilometres away. There some members of the task team in addition to
recording what was being transmitted onto video
tapes, viewed the
live feed on a monitor. Moreover, each of the monitoring crew
maintained a log in which they made contemporaneous
notes of what
they witnessed and heard as it unfolded on the monitor in front of
them.
[3] Unbeknown to the task team, the first
appellant had also attracted the attention of a unit of the SAPS. On
22 February 2003
that unit, armed with a search warrant that had been
issued by the Regional Court President of the Cape Regional Division
the previous
day, conducted a search of Tony's Auto Spares and an
adjoining residential unit that was housed under the same roof. The
SAPS seized
153 unpolished diamonds (including one partly polished
diamond), cash to the value of R55 000.00 and diamond dealing
paraphernalia
such as a diamond scale, loupe, tweezers and pieces of
paper with diagrammatic representations of diamonds and calculations
on
them. The first appellant was arrested, charged and released on
bail. By that stage the task team had had the first appellant under
close observation for approximately one month.
[4] On 25 June 2003, Jooste sought and obtained,
in terms of s 29 of the National Prosecuting Authority Act,
2
a warrant authorising the search of Tony’s Auto Spares and the
first appellant's home at Karee Avenue, Port Nolloth and the
seizure
of items suspected of being connected to contraventions of inter alia
the Diamonds Act
3
and the
Prevention of Organised Crime Act (POCA
).
4
By 4 July 2003 Jooste had resolved given the information that had
been secured pursuant to the surveillance operation that the
time was
ripe for him to execute the warrants. He thus deployed three units at
approximately 9pm to keep watch at Tony's Auto Spares,
the first
appellant's home, as well as the local cemetery that the first
appellant had taken to frequenting. Shortly before midnight
the first
appellant was observed entering Tony’s Auto Spares. All three
units descended on those premises. The warrant was
served on the
first appellant and in his presence his business, the entire building
housing Tony’s Auto Spares and the adjoining
residential unit
were searched. A video cassette recorder was employed to record the
search. The search proceeded into the early
hours of the next
morning. Various items were seized and the first appellant was
arrested and taken into custody. The next afternoon
the first
appellant accompanied members of the investigating team to his home,
which, in his presence, was also searched. Once
again various items
were seized. In total the second search yielded 24 unpolished
diamonds and further diamond dealing paraphernalia.
[5] The first appellant was the first of nine
accused indicted in the Cape High Court on a host of statutory
contraventions. The
broad hypothesis sought to be advanced by the
State was that each of the accused to different degrees were parties
to a pattern
of racketeering activity. The alleged activity consisted
in the planned, ongoing, continuous or repeated participation or
involvement
in contraventions of the Diamonds Act. In all, the first
appellant was charged with 61 counts of contravening the Diamonds
Act,
six counts of contravening the Riotous Assemblies Act
5
(conspiracy to commit a crime) and two counts of contravening POCA
(conducting or participating in racketeering activity or managing
an
enterprise used for racketeering).
[6] The second appellant, Derek Mbatha, who had
come to be identified in consequence of the surveillance of the first
appellant
as one of the alleged role players in the illicit diamond
trafficking enterprise, was arrested approximately one year after the
first appellant on 3 June 2004. He was charged with three counts –
one of contravening the Diamonds Act (dealing in unpolished
diamonds), one of contravening the Riotous Assemblies Act (conspiracy
to commit a crime) and one of contravening POCA (conducting
or
participating in racketeering activity or managing an enterprise used
for racketeering).
[7] A protracted trial ensued. In all some 27
witnesses testified for the State. At the close of the State case all
of the accused
bar the two appellants were found not guilty and
discharged. Neither of the appellants testified in their defence. At
the conclusion
of the trial before Le Grange AJ (sitting with
assessors) the first appellant was convicted on five charges of
dealing in unpolished
diamonds in contravention of s 21(b) of the
Diamonds Act and one charge of conducting or participating in
racketeering activity
in contravention of s 2(1)(e) of POCA. The
second appellant was convicted on one count of dealing in unpolished
diamonds in contravention
of s 21(a) of the Diamonds Act. On the
convictions in terms of the Diamonds Act: before us it was common
cause that the first appellant
ought correctly to have been convicted
under s 20 and the second appellant under s 19. Nothing, however,
turns on this. On the
racketeering conviction the first appellant was
sentenced to a term of eight years’ imprisonment and in respect
of the five
contraventions of the Diamonds Act he was sentenced to 12
months’ imprisonment on each count. Those latter sentences were
ordered to run concurrently with the first. The first appellant's
effective sentence was thus eight years’ imprisonment.
The
second appellant was sentenced to a fine of R20 000 or imprisonment
for a term of four years, half of which was conditionally
suspended.
The appeal in each instance against the convictions and sentences is
with the leave of the court below.
[8] The cornerstone of the State case was the
evidence of the brothers Basson – Tim and Aubrey. Both were
accomplices who
were warned in terms of s 204 of the Criminal
Procedure Act
6
(CPA). The former had been in the first appellant's employ for some
nine years prior to his arrest. On 24 January 2003, Tim contacted
the
first appellant telephonically and informed him that his brothers
Aubrey and Andre, who were then employed by Alexkor mine,
sought a
meeting with him. The purpose of that meeting, so Tim and Aubrey
testified, was to enable them to dispose of certain unpolished
diamonds that they had smuggled from their place of employment, to
the first appellant. That meeting took place in the buyer’s
room of Tony's Auto Spares. In it, the diamonds changed hands for R1
000.00.
[9] Two days later on 26 January 2003, as was
their wont, the three brothers visited the first appellant to view a
rugby match on
MNet. On that occasion, according to both Tim and
Aubrey, all three of them were schooled by the first appellant in the
purchase
of unpolished diamonds. In the words of Aubrey:
'Dit was die Sondagnamiddag gewees. Ons het weer gegaan na die
kantoor wat die winkelgedeelte van die huis skei en ons het weer
stelling ingeneem by sy lessenaar. Wat daar gebeur het, mnr Dos
Santos het aan ons 'n demonstrasie gedoen hoe om 'n loop te hanteer.
Hoe om – hoe jy die loop in jou regterkantste hand vashou, 'n
ongeslypte diamant aan jou linkerkantste hand en hoe jy die
diamant
dan bestudeer. Mnr Dos Santos het die demonstrasie gedoen en daarna
het ons drie broers dit ook daarna gedoen.
En hoe was dit aan u verduidelik om die loop te
gebruik? --- Kan u weer die vraag stel?
U sê u was gewys om die loop te gebruik? --- Dis
korrek, ja.
Kan u vir ons verduidelik hoe dit
aan u getoon is of hoe gebruik 'n mens 'n loop? --- Die loop hou jy
aan jou regterkantste hand
vas. Dan sit jy jou lang vinger sit jy
deur die opening. Die vergrootglas van die loop hou jy in jou
wysvinger en jou duim vas.
Dan bring jy hom naby aan jou oog. In jou
linkerkanste hand, jou wysvinger en jou duim het jy jou diamant. Dan
bring jy jou diamant
nader na die loop toe om 'n beter view te kan
kry van hom, dan rol jy die diamant om te kyk vir enige krake, spots,
die kleur van
die diamant.
U Edele, ek sal nie nou daardie beeld toon nie, maar ek
sal dit môre toon. Dit gaan 'n bietjie tyd neem om dit te kry,
want
dis op dieselfde band. Wat het na die opleiding gebeur, mnr
Basson? --- Mnr Dos Santos het die diamantskaal sowel as die loop
sowel
as kontant aan my oorhandig omdat ek nou nie oor die nodige
finansies beskik om die diamante aan te koop nie, sowel as 'n tabel
wat hy vir my geteken het, wat ek moes gebruik het om – in die
tabel is dit opgestel die rand, die hoeveelheid geld wat jy
moet
betaal vir 'n diamant. Dan kyk jy vir die kleur van die diamante en
die verskillende karate.
U sê mnr Dos Santos het geld aan u oorhandig? ---
Dis korrek, ja.
Kan u onthou hoeveel aan u oorhandig was? --- Dit was
'n bedrag van R5 000.'
[10] A few days later, Aubrey used the scale and
loupe and R1 000.00 of the first appellant's R5 000.00 to purchase
unpolished diamonds
from certain persons in Buffelsrivier, a few
kilometres from his place of employment. On 29 January 2003, together
with his brother
Andre and possibly Tim (of the latter Aubrey was not
sure) he called on the first appellant at Tony’s Auto Spares.
There
he supplied the diamonds to the first appellant. Early in
February 2003 Aubrey once again purchased unpolished diamonds from
the
same persons in Buffelsrivier. On 6 February 2003 he visited
Tony's Auto Spares and handed those unpolished diamonds (12 in all)
to the first appellant. Each of those three occasions testified to by
Aubrey constituted a separate charge of contravening the
Diamonds Act
on which the first appellant was ultimately convicted.
[11] Insofar as the second appellant is concerned, Tim testified that
he (the second appellant) came to see the first appellant
during the
course of Friday 21 February 2003. Tim was told by the first
appellant that the second appellant had to go and fetch
something
from the mine and that Tim must give him some money for petrol. That
Tim did. After 10pm that evening, the first appellant
called Tim on
his cellular phone to tell him that the second appellant was at
Tony's Auto Spares and that he (Tim) must go there
to open the
premises for the second appellant. Tim did as he was told and let the
second appellant onto the premises. When the
first appellant arrived,
the two appellants made their way to the buyer’s office, whence
Tim heard the first appellant who
was speaking loudly say 'Dit is 'n
100 carat. Ek is ryk. Al die probleme is verby'. Later that evening
and after the second appellant
had left, the first appellant invited
Tim into his office. There the first appellant placed a large
unpolished diamond on the table,
which he informed Tim the second
appellant had brought. Tim was asked to examine the stone and to
weigh it. The stone weighed 91
carats. That constituted the fourth
charge of contravening the Diamonds Act on which both appellants were
convicted.
[12] In respect of the first appellant’s fifth conviction of
contravening the Diamonds Act, Tim testified:
'Terwyl
mnr Dos Santos in die selle was in Port Nolloth, het 'n ene John
Legged [that should have been Legget] besoek by die winkel
afgelê
en aan my gesê hy will mnr Dos Santos sien. Ek het aan hom
genoem ... (tussenbeide).
HOF
: Jammer, kan u die
persoon se naam net herhaal, asseblief. --- John Legget.
John Legget? --- Ja, Edelagbare. Ek het aan hom genoem
dat Tony nie hier is nie. Die polisie was die naweek by ons en hulle
het
hom gearresteer en hy het vir my gesê hy wil my privaat
sien. Ek het hom na die eerste kantoor gevat wat net naby die winkel
is en daar binne met hom gepraat. Hy het aan my gesê dat hy
iets wil kom afsit by mnr Dos Santos. Ek het aan hom gesê
ek
sal hom help omdat mnr Dos Santos in die selle is. My woorde aan hom
was gewees, ons gaan nie loop lê terwyl mnr Dos Santos
in die
selle is nie. Ons sal wys ons gaan voort. Ek sal hom help met die
transaksie om vir mnr Dos Santos te wys dat ons staan
agter hom. Ek
is na die binne kantoor en het van die toerusting daar gaan haal en
dit na die eerste kantoor gebring om John Legget
se steen te weeg op
die skaaltjie. Ek het die diamant by hom gevat en dit op die
diamantskaal geplaas en gesien dit weeg 2.77 karaat.
Ek het aan hom
genoem dat ek nie die volle bedrag kan betaal nie, omdat ek nie weet
hoeveel ek hom moet gee nie en aan hom genoem
ek gee hom 'n deposito
van R400. Ek sal hom R400 gee totdat mnr Dos Santos uit is - op
borg uit is en dan kan hy terugkom en
sy verskil kom haal. Hy het
verstaan en ek het die geld aan hom oorhandig.
'
There can be little doubt that Tim acted as the first appellant’s
agent in respect of the 2.77 carat diamond purchased from
Legget.
That much emerges from the following excerpt of his evidence:
'Op daai stadium was die winkel onveilig gewees en ek
het geglo dat ek Tony se goed by my huis moet bêre. Ek het ook
John
Legget se 2.77 karaat gevat en dit by my huis in die kluis
toegesluit. Na Tony op borg uit is, het ek aan hom gevra of ek dit
moet
gaan haal by my huis om dit vir hom te bring. Hy het vir my
gesê, nee, ek moet dit daar bêre. Dis veilig daar. Ons
het nog altyd voortgegaan om kliënte te help na-ure en ek het
weer aan mnr Dos Santos gevra, moet ek daai goed gaan haal en
dit vir
hom bring, want John Legget het nie sy geld gekry nie. Hy het gesê,
nee, ons bêre dit daar. Die ander bly in
sy ma se tuin.'
[13] The Legget transaction was not an isolated one. According to
Tim:
‘My dienspligte, soos ek sê, het later
verbeter in die winkel, deurdat ek van die kliente moes help in die
winkel na-ure
as Tony nie daar was nie, met onwettighede en dan moes
ek ook geld uitbetaal het of ek moes geld weggeneem het.
…
Watter onwettighede? --- Dit was die aankoop van
ongeslypte diamante.
Ken u ‘n ongeslypte diamante, mnr Basson? --- Dis
reg, ja. Tony het my vertel of geleer wat is ‘n geslypte
diamante
en wat is ‘n ongeslypte diamante.’
Tim testified furthermore that there were other instances when he
dealt, in the absence of the first appellant, with potential
sellers
of unpolished diamonds. He explained:
'Verduidelik my die prosedure, mnr Basson, wat u sal
volg as iemand – of toe u nou ongeslypte diamant aankoop? ---
Dit sou
net gebeur as Tony nie in die plek is nie, wanneer die
kliënte na my toe gaan kom, dan gaan ek hulle help. Ek sal hulle
in
die eerste kantoor van die winkel los. Dan sal ek alleen na Tony
se kantoor beweeg en dan sal ek die diamante op die tafel plaas.
Dan
sal ek die papiertjie op die tafel plaas. Ek sou die diamantskaaltjie
vat. Dan sou ek dit op die lessenaar plaas, dit oopmaak.
Ek sou die
diamant vat en dit op die skaaltjie plaas om te kyk hoeveel dit weeg.
En dan sou ek die loop vat en dit daardeur besigtig
deur te kyk of
daar enige spots of krake of onsuiwerhede daarin is.'
[14] Immediately after the sentencing of the appellants, the court
below granted an order in terms of s 35(1)(a) of the CPA declaring
forfeit to the State the diamond dealing paraphernalia that had been
seized during the search of the first appellant's premises.
The
State, moreover, gave notice of its intention to apply for a
confiscation order against the first appellant in terms of s 18
of
POCA in the sum of R2 099 218.75, being the value of the unpolished
and polished diamonds seized from the appellant's premises,
as also
the cash to the value of R55 000.00.
[15] Paragraph 4 of the draft confiscation order read:
'The commissioner of the South African Police Services,
at his discretion and written authority, as provided for in terms of
section
3(
1
) of the
Finance and Financial Adjustments Acts Consolidation Act 11 of 1977,
is authorized to pay a reward of one third of the
value of the
unpolished diamonds seized by members of the South African Police
Services on 22 February 2003, i.e. one third of
R1 897 605.00.'
That immediately prompted counsel for the first appellant to apply
for a special entry to be made in terms of s 317 of the CPA.
Counsel
motivated the application thus:
'I am caught at a disadvantage, M'Lord, because the
defence was not informed that a reward to the tune of R600 000 will
be paid
in return for information which apparently led to the
prosecution in this matter and we were not informed whether the
person who
provided this information would be a witness and we were
not told what this information would entail. Under the circumstances
I
am obliged to request that Your Lordship authorizes that a special
entry be made in the record with regard to this particular aspect.'
[16] Without immediately settling the terms of the special entry, Le
Grange AJ acceded to counsel’s request. After certain
skirmishes between the parties as to the terms of the special entry
the learned Judge eventually granted leave to the State as
also the
appellants to adduce evidence to enable him to determine and state
the facts underpinning the special entry. Jooste testified
for the
State. None of the appellants did, nor were any other witnesses
called on their behalf. In essence the court held that
despite the
evidence of Jooste which was not gainsaid by the appellants, it could
not find that the application for a special entry
was frivolous or
absurd or that granting it would constitute an abuse of the process
of the Court. It accordingly made a special
entry in these terms:
'i). Jacobus Hermanus van Wyk ("Van Wyk") and
Willem ("Tim") Basson testified on behalf of the State
against
the Accused prior to the conviction of Accused 1 and 6.
ii). On 23 October 2004, Van Wyk, and Tim had a
telephonic conversation during which Tim told Van Wyk that he had
been informed
that a sum of R600 000 was available for information
that would lead to the conviction of the Accused.
iii). As far as the Directorate of Special Operations
("DSO") is concerned, no reward will be paid to a State
witness
in this matter.
iv). The DSO and the Commissioner of the South African
Police ("the Commissioner") agreed that the Commissioner
has a
discretion to pay a reward of approximately R600 000 to State
witnesses in this matter.
v). Prior to the conviction of Accused 1 and 6, Tim
consulted with members of the South African Police in the absence of
members
of the DSO.
vi). The information referred to in paragraphs (ii) -
(v) was only obtained by the accused and their legal representatives
after
the conviction and sentence of accused 1 and 6.
vii). The Accused were deprived of an opportunity to
cross-examine the State witnesses in the aforesaid regard.'
[17] Before us counsel conceded that the irregularity referred to in
the special entry was not of such a nature that it amounted
without
more to a failure of justice. Rather, so the submission went, the
possibility that Tim Basson may have been motivated by
the payment of
a reward justified his evidence being approached with extreme
caution. That being so it is unnecessary for me to
express any view
on the correctness of the procedure adopted in the court below in
respect of the invocation of s 317 of the CPA
by counsel and the
consideration given it by the court below. In my view, counsel was
amply justified in his submission that the
evidence of the Bassons
was deserving of heightened scrutiny, for, as the following extract
from the recorded transcript of Aubrey’s
evidence makes plain,
both were particularly dangerous witnesses.
'Daar was een keer 'n geval gewees wat ek 'n
video-opname gemaak het in mnr Dos Santos se kantoor met my
persoonlike videokamera
waar ek ongeslypte diamante afgeneem het.
Hoekom? --- Die rede hoekom ek dit gedoen het, daar is
'n ander Portugees in Port Nolloth omdat my broer altyd na hom toe
gegaan
het as mnr Dos Santos daar was nie, het hy met die ongeslypte
diamante na die persoon toe gegaan en ons op 'n dag gaan geld leen
ook by die persoon en hy het vir ons gesê, soos hy vir my broer
toe die vorige keer gesê het, onthou een ding, julle
speel met
vuur. Is 'n gevaarlike game waarmee julle besig is. . . .
U sê u het 'n opname gemaak van ongeslypte
diamante, waar het u die opname gemaak? --- Die opname het ek gemaak
in die kantoor
wat op die video nou gewys was, die kamertjie van mnr
Dos Santos.
En die ongeslypte diamante wat u op band vasgelê
het, waar het u dit gekry? --- Die ongeslypte diamante was in die
laai,
my broer wat daar werk, het die diamante daar uitgehaal, dit
was in 'n klein swart potjie gewees en hy het dit uitgegooi en ek het
dit opgeneem. . . .
Kan u vir ons sê wat dit is? --- Dit is een van
die ongeslypte diamante wat ek met my persoonlike videokamera
afgeneem het.
Mnr Basson, terwyl ons kyk sien ons daar is sekere
getalle of syfers op die TV of op die beeld, kan jy dit vir ons
verduidelik
wat dit is? --- Dit is die datum wanneer die opname
gemaak is en die tyd.
Wat sien ons nou, mnr Basson? --- Dit is die karaat
hoeveel daardie diamant weeg wat op die skaal is. Dit is nog van die
diamante
wat uit die swart potjie uitgekom het.
Wat gebeur nou, mnr Basson? --- Dit is nog diamante
daardie en hulle was ook in daardie swart houertjie gewees.
Behalwe om die diamante op te neem. M'Lord, that's just
the footage. Daar is net een vraag, mnr Basson, behalwe om die
videoband
op te neem, watter ander handelinge het u met die diamante
gedoen tydens daardie opneming van die videoband? --- As u net die
vraag
anders kan stel, ek verstaan hom nou nie so mooi nie.
Julle het die diamante uit die pot geneem, julle het
dit opgeneem op die videoband. --- Dit is korrek.
Wat het toe met die diamante gebeur wanneer julle klaar
was met die opneming? --- O, die diamante is teruggesit in die pot en
dit
is my broer se werk, hy het gewerk met die diamante. Hy het dit
teruggesit in die pot en in die laai gebêre.'
[18] It follows that the cautionary rule relating
to accomplices is applicable to the evidence of the Bassons. That
rule has been
stated as follows by Holmes JA in
S
v Hlapezula:
7
'It is well settled that the
testimony of an accomplice requires particular scrutiny because of
the cumulative effect of the following
factors. First, he is a
self-confessed criminal. Second, various considerations may lead him
falsely to implicate the accused,
for example, a desire to shield a
culprit or, particularly where he has not been sentenced, the hope of
clemency. Third, by reason
of his inside knowledge, he has a
deceptive facility for convincing description – his only
fiction being the substitution
of the accused for the culprit.
Accordingly, even where sec. 257 of the Code has been satisfied,
there has grown up a cautionary
rule of practice requiring (
a
)
recognition by the trial Court of the foregoing dangers, and (
b
)
the safeguard of some factor reducing the risk of a wrong conviction,
such as corroboration implicating the accused in the commission
of
the offence, or the absence of gainsaying evidence from him, or his
mendacity as a witness, or the implication by the accomplice
of
someone near and dear to him; see in particular
R
v Ncanana
,
1948 (4)
SA 399
(AD) at pp 405-6;
R
v Gumede
,
1949 (3)
SA 749
(AD) at p 758,
R
v Nqamtweni
1959
(1) SA 894
(AD) at pp 897G-898D. Satisfaction of the cautionary rule
does not necessarily warrant a conviction, for the ultimate
requirement
is proof beyond reasonable doubt, and this depends upon
an appraisal of all the evidence and the degree of the safeguard
aforementioned.'
[19] It must be emphasised that by corroboration
is meant other evidence which supports the evidence of the state
witness and which
renders the evidence of the accused less probable
on the issues in dispute (
S v Gentle
).
8
And whilst I am inclined to heed Counsel’s note of caution that
the evidence of the Bassons be treated with extreme caution,
it bears
noting that corroboration is not the only safeguard that can properly
be employed to reduce the danger of convicting an
innocent person.
For, ultimately what is required is proof beyond a reasonable doubt
and whether or not that threshold has been
passed by the State
depends upon an appraisal of all of the evidence.
[20] To the evidence of the Bassons, may be added
the various items seized during each search. On behalf of the
appellants it has
been submitted that the evidence secured pursuant
to the search falls to be excluded in terms of s 35(5) of the
Constitution. Section
35(5) provides:
'Evidence obtained in a manner that violates any right
in the Bill of Rights must be excluded if the admission of that
evidence
would render the trial unfair or otherwise be detrimental to
the administration of justice.'
The learned trial judge concluded after an
admissibility trial that the admission of the evidence would not
render the trial unfair
or otherwise be detrimental to the
administration of justice.
[21] The warrant, so it was conceded by the State,
suffered the technical defect that the regional magistrate who issued
it was
not a magistrate as defined for the purposes of s 21 of the
CPA.
9
The Constitution's specific exclusionary provision does not provide
for the automatic exclusion of evidence obtained in violation
of an
accused's constitutional rights. Evidence falls to be excluded only
if its admission would (a) render the trial unfair or
(b) be
otherwise detrimental to the administration of justice. As to (a):
That provision resonates with Section 35(3) of the Constitution
which
guarantees every accused person the right to a fair trial. That
constitutional principle is underscored by the philosophy
that before
persons are to be punished their guilt must first be established in a
fair trial.
10
But as it was put in
S v Jaipal
11
'The right of an accused
to a fair trial requires fairness to the accused, as well as fairness
to the public as represented by the
State. It has to instil
confidence in the criminal justice system with the public, including
those close to the accused, as well
as those distressed by the
audacity and horror of crime.'
As to (b): This involves essentially a value
judgment. In
S v Mphala,
12
Cloete J formulated the approach to be adopted as follows:
'So far as the administration of justice is concerned,
there must be a balance between, on the one hand, respect
(particularly by
law enforcement agencies) for the Bill of Rights
and, on the other, respect (particularly by the man in the street)
for the judicial
process. Overemphasis of the former would lead to
acquittals on what would be perceived by the public as
technicalities, whilst
overemphasis of the latter would lead at best
to a dilution of the Bill of Rights and at worst to its provisions
being negated.'
[22] The approach to an enquiry such as this is
appositely captured in
Key v
Attorney-General, Cape Provinicial Di
vision,
13
where Kriegler J held:
'In any democratic criminal justice system there is a
tension between, on the one hand, the public interest in bringing
criminals
to book and, on the other, the equally great public
interest in ensuring that justice is manifestly done to all, even
those suspected
of conduct which would put them beyond the pale. To
be sure, a prominent feature of that tension is the universal and
unceasing
endeavour by international human rights bodies, enlightened
legislatures and courts to prevent or curtail excessive zeal by State
agencies in the prevention, investigation or prosecution of crime.
But none of that means sympathy for crime and its perpetrators.
Nor
does it mean a predilection for technical niceties and ingenious
legal stratagems. What the Constitution demands is that the
accused
be given a fair trial. Ultimately, as was held in
Ferreira
v Levin
[1996 (1) SA 984
(CC], fairness is an
issue which has to be decided upon the facts of each case, and the
trial Judge is the person best placed to
take that decision. At times
fairness might require that evidence unconstitutionally obtained be
excluded. But there will also
be times when fairness will require
that evidence, albeit obtained unconstitutionally, nevertheless be
admitted.'
[23] Here the investigating team did not act in flagrant disregard of
the first appellant's constitutional rights. On the contrary,
they
sought judicial authority for their conduct. That judicial
imprimatur
was an attempt to uphold the law in spirit and letter. None of those
executing the warrant knew that it suffered a defect. Eschewing
the
local Magistrates' Court in favour of one located in Cape Town was
designed to protect the integrity of the investigation and
to
preserve the element of surprise, for, during operation Solitaire an
approach to the Port Nolloth Magistrates' Court had resulted
in the
leaking of information. Significantly, Superintendent Bruwer
testified:
'Nou sup Bruwer, u het getuig dat deel van u magte is
dat u ook visenteringslasbriewe mag uitreik. Verduidelik vir ons
hoekom het
u nie self hierdie visenteringslasbrief uitgereik nie en
dit deurgestuur na die Kaap toe? --- U Edele, ek het gevoel dat daar
is
genoeg tyd en dat 'n onafhanklike persoon buite die polisie, dat
'n landdros die inligting voorgelê word en dat die landdros
die
visenteringslasbrief uitreik.'
[24] In those circumstances it is plain that the task team was not
attempting to garner any unfair advantage for themselves. Rather
it
plainly was an endeavour to protect the interests of the first
appellant. For that they should be commended, not penalised by
having
the evidence that has been secured pursuant to that warrant excluded.
To exclude the evidence in those circumstances would
not conduce to a
fair trial. Nor for that matter would it serve to advance the
administration of justice. To exclude the evidence
simply because the
wrong magistrate had been inadvertently approached would run counter
to the spirit and purport of the Constitution.
In my view, on the
facts of this case s 35(5) could hardly countenance the exclusion of
the impugned evidence. Accordingly the
conclusion reached by the
trial court on this score cannot be faulted.
[25] Reverting to the evidence of the Bassons: Notwithstanding their
relationship of employer and employee, Tim often accompanied
the
first appellant on his long personal and business trips. The level of
trust that the first appellant reposed in Tim is illustrated
by the
fact that Tim often opened and closed the business premises and
supervised the conduct of the business in the first appellant's
absence. To facilitate that arrangement, the first appellant had
leased premises for Tim to occupy across the street from Tony's
Auto
Spares. The first appellant also paid for Tim's cellular phone. The
location of the leased premises was significant according
to Tim, for
it enabled him quick access to Tony's Auto Spares whenever needed,
which all too frequently was late in the evening
and way after the
spare’s shop had closed for business at 6pm. Moreover, both of
the Bassons, upon being arrested, intimated
their desire to plead
guilty to the charges and a willingness to co-operate with the State.
Each was convicted pursuant to this
plea and was sentenced to
imprisonment for a term of two years which was conditionally
suspended for five years.
[26] The brothers corroborated each other in
material respects (see
S v Avon Bottle
Store (Pty) Ltd;
14
S v Hlapezula
15
).
Moreover each was supported by the surveillance tapes, the incident
register as confirmed by the evidence of the relevant member
of the
task team who made the entries in question and the record from MTN
confirming the cellular telephone calls between Tim and
the first
appellant as testified to by the former. The surveillance tapes were
admittedly of a very poor quality. Notwithstanding
its grainy quality
however, it afforded confirmation of the Bassons’ presence in
the buyer’s room on each occasion
that they allegedly
participated in an illicit diamond dealing transaction as testified
to by them. Importantly their account found
support in the dates and
times on the surveillance tapes and the corresponding entries in the
log.
[27] The trial court, I should perhaps add, was
alive to the dangers of accepting the evidence of the Bassons absent
corroborating
evidence implicating the appellants (see
S
v Scott-Crossley
2008 (1) SACR 223
(SCA) paras 7 and 8). It is so that the evidence of the Bassons taken
individually and cumulatively was not without blemish. But
when taken
together with the other evidence to which I have alluded it has an
unquestionable ring of truth. I thus do not believe
that those
blemishes are such as to warrant either a rejection of the evidence
of either or to undermine reliance upon them. For,
as Holmes JA made
plain (
S v Artman
16
)
:
‘courts must guard against their reasoning tending to become
stifled by formalism. In other words, the exercise of caution
must
not be allowed to displace the exercise of common sense’.
[28] In respect of the first appellant there are
as well the items seized during each search. To recapitulate, those
items included
the unpolished and polished diamonds, substantial sums
of cash, the diamond dealing paraphernalia such as magnifying
glasses, diamond
scales, diamond loupes and two other seemingly
insignificant items being recently torn pieces of paper with
diagrammatic representations
that were recovered from the toilet
system and other pieces of paper with diagrammatic representations,
and partially used 49%
strength hydrofluoric acid. In so far as the
pieces of paper are concerned, whilst Superintendent Hamman, the
handwriting expert,
could not say with any degree of certainty that
the pieces of paper bore the first appellant’s handwriting he
was willing
to opine that it strongly resembled his handwriting. The
significance of those pieces of paper emerges from the following
evidence
in cross examination of the expert gemmologist, Arthur
Thomas: '
Now my question to
you, Mr Thomas, having analyzed what now transpires to be uncut
diamonds that were presented to you, would you
be able to identify
what purports to be a description of those two stones in conjunction
with the little sketch appended there?
--- What I see here, is
something that we frequently use in the trade, that I use myself. In
other words, I take it that this
stone was an octahegen. This little
sketch is typical of what we use.'
....
'Let's move on to the other stone? --- Here we see an
octahegen with an intrusion indicated in the stone. This appears to
conform
to stone B11, which to three decimal places weighed 1.736
carats.
And there's a possibility that this may be ...
(intervention). --- I would put it as a strong possibility, not on
oath, but a strong
possibility that this is the stone.'
And the evidence was that whilst hydrofluoric acid in that strength
has other heavy industrial uses, it is commonly used to clean
unpolished diamonds.
[29] In respect of the second appellant and the transaction involving
the 91 carat diamond, it was put by counsel to one of the
state
witnesses on behalf of the first appellant:
'Nou mnr Dos Santos sal met betrekking tot hierdie
spesifieke transaksie kom getuig as hy moet en daar sal ook eksterne
bewys wees
daarvan indien nodig, dat by hierdie spesifieke
geleentheid mnr Mbatha by hom kom geld leen het met die oog op 'n
begrafnis wat
moes plaasvind.'
Likewise the following was put on behalf of the second appellant:
'Mnr Jooste, beskuldigde nommer 6 [the second appellant]
sal erken indien dit nodig is, dat hy wel daar op die 21ste was, maar
die
doel was om geld te leen en nie diamant te verkoop nie? --- U
Edele, dis die eerste keer in my lewe wat ek sien iemand omhels
iemand
as hy geld geleen het, van blydskap.'
'Sal u sê dat daar is niks verkeerd om iemand te
omhels as daai persoon aan my meegedeel het dat hy net nou een van sy
geliefdes
verloor en dat môre is daar 'n begrafnisdiens? --- U
Edele, dan gaan jy dit met deernis doen. Jy gaan nie bly wees nie.
En dit is wat beskuldigde 6 kom sê indien nodig
dat 'n stamlid, 'n vrou, is oorlede en die Saterdag ... (tussenbeide)
. . .
Dis 'n vrou wat 'n lid van die Zoeloe-stam is, wat
oorlede is en die Saterdag is die begrafnisdiens. En hy was eers
Tony's Auto
Spares toe na middag om geld te gaan leen, want hy wou
skape gaan koop en later Tony het hom gebel om te sê, het jy
reg gekom
met die skape. Toe sê hy, nee. En Tony het gesê,
hoekom nie. En hy het gesê, ek benodig geld. En toe het hy geld
gaan leen.'
[30] It thus came to be undisputed that the second appellant was
indeed at the first appellant’s premises at the time in
question. The trial court concluded as presaged in Jooste’s
evidence:
'Despite this poor quality, the video footage
of the evening of 21 February 2003 when Accused no 6 [the second
appellant] visited
Accused no 1 [the first appellant] does not
however support the contention that this was an occasion where a
bereavement was discussed
since it was clear to this Court that both
accused were in a mood of ecstasy. Both of them could hardly control
their joy and
laughter and recorded them hugging each other. It is
therefore highly improbable that Accused No 6 was asking for
financial assistance
as a result of a bereavement.'
[31] The trial court has been criticised for what it is submitted is
a contradictory approach inasmuch as it refused to place any
reliance
on the tapes when it acquitted the remaining accused at the
conclusion of the state case in terms of s 174 of the CPA.
In my view
the approach of the trial court is beyond reproach. Given the quality
of the tapes it was understandably reluctant,
on the strength of
them, to place the other accused on their defence. It was thus
unwilling to rely upon them as a source of incriminating
evidence. At
the close of the defence case not only was the test different but
also the nature of the enquiry. At that stage the
trial court was
confronted with two hypothetical postulates – one, advanced by
the state, that the second appellant was there
to sell a 91 carat
diamond and the other, advanced by the appellants, that he was there
to borrow money on account of a family
bereavement. The trial court
concluded, against the backdrop of the surveillance tapes, that the
one advanced by the appellants
(in support of which neither appellant
testified it must be added) was implausible and therefore untenable.
In that, the trial
court, in my view, cannot be faulted.
[32] Tellingly, the one search yielded a 91 carat
diamond. That in itself lends material corroboration to Tim Basson’s
version.
So do the surveillance tapes, incident register and MTN
records. But even if Tim were not to be relied on, there remains the
evidence
of the gemmologist Thomas. Under cross examination by
counsel for the second appellant, he testified with reference to what
he
could see of the 91 carat diamond on the surveillance tapes:
'That is real evidence. Now what I
want to know is can you say with certainty that one of those objects
on the scale there, was
the same size as that …? --- The
object that was being handled was approximately this size, yes.
The object that was being handled? --- The object that
we saw being handled was approximately this size.
Now can you just tell me when did you see an object
being handled? --- I saw the scale brought out. I saw the 50 carat
correcting
weight put into place, in order to calibrate the balance.
Then the person picked up an object and put it on the balance. That
object,
looking at his hands as he picked it up and put it on the
balance, was approximately this size. If I can explain that a little
further, this is approximately the size of the 50 carat metal
calibrating weight that was used. He picked up the calibrating
weight,
put it onto the balance, set the balance ... (intervention).'
...
'
Now when
you say that you saw him pick up something, are you referring to what
you could see on the scale or what you could see
before that? --- He
had it on a pad in front of him. They shook hands (indistinct) a
couple of times. The stone that had come out
of the stone paper, was
sitting on the pad in front of him. He calibrated the scale. He
picked up something off the pad that was
approximately this size and
put it on the scale to weigh it.'
[33] In assessing circumstantial evidence one
needs to be careful, as our courts have repeatedly warned, not to
approach such evidence
upon a piecemeal basis and to subject each
individual piece of evidence to a consideration of whether it
excludes the reasonable
possibility of an innocent explanation (
S
v Reddy).
17
For as Davis AJA, quoting with approval from Best on
Evidence,
reminded us in
R v De Villiers:
18
'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 the delinquent with the weight of a
millstone. . . . It is
of the utmost importance to bear in mind
that, where a number of
independent
circumstances point to the same conclusion the probability of the
justness of that conclusion is not the
sum
of the simple probabilities of those circumstances, but is the
compound result of them.'
[34] Before us counsel sought to suggest that the
evidence seized during the search may have been planted by the
investigating team.
That as a possibility was not explored before the
trial court. In fact it was not even suggested to any of the state
witnesses
that that may have occurred. A court, particularly one such
as this on appeal, need hardly concern itself with what at best for
the first appellant would qualify as a remote possibility. To do so
would oblige the State during the trial to eliminate every
conceivable possibility that may depend upon "pure speculation"
(
S v Glegg
).
19
The fact that a number of inferences can be drawn from a certain
fact, taken in isolation, does not mean that in every case the
State,
in order to discharge the onus which rests upon it, is obliged,
according to Diemont JA (
S v Sauls):
20
‘
to indulge in
conjecture and find an answer to every possible inference which
ingenuity may suggest any more than the Court is called
on to seek
speculative explanations for conduct which on the face of it is
incriminating.’
[35] There was thus an entire body of evidence
that operated against both appellants to different degrees. All of
that evidence
certainly called for an answer, for in respect of each
a prima facie case had been established. Yet the appellants countered
it
with nothing, preferring instead to shun the witness stand. That
was the right that each had, but its exercise is not without certain
consequences. The choice of each to remain silent in the face of
evidence implicating them in criminal conduct is suggestive of
the
fact that each had no answer to it. For if the evidence implicating
the appellants was capable of being neutralised by an honest
rebuttal, it ought to have been.
21
Weighing carefully the cumulative effect of all of the circumstantial
evidence together with the direct evidence, the guilt of
each
appellant was so strong, that the learned Judge in the court below
must inevitably have convicted. It follows that save for
correcting
the five convictions in the case of the first appellant to read s 20
instead of s 21, and in the case of the second
appellant the one
conviction to read s 19 instead of s 21, each of the appellants was
correctly convicted on charges in terms of
the Diamonds Act.
[36] There remains the conviction of the first
appellant in terms of POCA. Section 2(1)(e) of POCA to the extent
here relevant provides:
‘
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".'
In
S v Eyssen,
22
Cloete JA stated: 'The essence of the
offence in subsec (e) is that the accused must conduct (or
participate in the conduct) of
an enterprise's affairs. Actual
participation is required (although it may be direct or indirect).
[The subsection] covers a person
who was managing, or employed by, or
associated with the enterprise. "Manage" is not defined and
therefore bears its
ordinary meaning, which in this context is: "1
be in charge of; run. 2 supervise (staff). 3 be the manager of (a
sports team
or a performer)." Thus for a conviction the state
had to establish the existence of an enterprise, a pattern of
racketeering
activity and a link between them and the first
appellant.
[37] It is a requirement of the subsection that
the accused must participate in the enterprise's affairs. The word
‘enterprise’
is widely defined. As pointed out in
Eyssen
(para 6) ‘it is difficult to
envisage a wider definition’. It is a further requirement that
the participation must be
through a pattern of racketeering activity.
'Pattern of racketeering activity' is defined to mean ‘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.’
Once again the term is widely defined.
The participation must be by way of
ongoing, continuous or repeated participation or involvement (see
Eyssen
para
8 and 9).
[38] In the present case the evidence adduced by the state
established that the first appellant conducted an illegal diamond
dealing
enterprise. The affairs of the enterprise entailed him
purchasing unpolished diamonds from people who were not entitled to
possess
them. All five of the offences of dealing in unpolished
diamonds in contravention of the Diamonds Act of which the first
appellant
was convicted, constituted participation in such affairs.
And all occurred after the commencement of POCA. None of them was an
unrelated instance of proscribed behaviour nor an accidental
coincidence with any of the others (see
Eyssen
para 8). On the
contrary, each of the five transactions was concluded in the same
room, namely the buyer’s room of Tony’s
Auto Spares.
Tony’s Auto Spares, which at the very least was managed by the
first appellant, plainly had a legitimate as
well as an illegitimate
face. There were repeated instances of participation by the first
appellant, which save for the one conviction
involved personal
participation on the part of the first appellant. In respect of that
one his employee Tim Basson acting as his
agent procured the diamonds
for him. Moreover, according to Tim Basson, on diverse occasions he
transported prospective sellers
on behalf of the first appellant,
from the nearby Sizamele Township to Tony’s Auto Spares and
back. Significantly, it was
never even put to either of the Bassons
that they had not received training at the hands of the first
appellant nor been supplied
with money or diamond dealing
paraphernalia by him.
[39] For a pattern of racketeering activity, POCA requires at least
two offences committed during the prescribed period. In this
court,
as indeed the one below, counsel argued that the word ‘offence’
in that context meant a prior conviction. Absent
two prior
convictions, so the submission went, POCA could not be invoked.
Underpinning that submission is the contention that an
accused person
must first be tried and convicted of the predicate offences (here the
charges in terms of the Diamonds Act) before
he/she could be indicted
on the racketeering charge in terms of POCA. Allied to that
submission is the argument that in this instance
there has been an
improper splitting of charges resulting in an improper duplication of
convictions.
[40] In my view, whether to prosecute and what
charge to file or bring before a court are decisions that generally
rest in the prosecutor's
discretion. Nor would it be necessary, it
seems to me, for the court to return a verdict of guilty in respect
of the predicate
offences for the POCA racketeering charge to be
sustained. It may well suffice for the court to hold that the
predicate charge
has been proved without in fact returning a guilty
verdict. But that need not be decided here.
[41] In respect of a similarly worded provision in
the American Racketeer Influenced and Corrupt Organizations Act
(RICO),
23
United States courts have held that a criminal defendant could
properly be convicted of the predicate acts that form the pattern
of
racketeering activity basic to the RICO charge, and later be
prosecuted under RICO.
24
On the other hand in
United States v
Brooklier
,
25
the appellants had pleaded guilty to a RICO conspiracy charge, and
were then indicted a few years later for a RICO violation. One
activity instrumental in the prior conspiracy charge supplied a basis
for the substantive RICO charge. The appellants moved to
dismiss the
alleged activity from the indictment on double jeopardy grounds. In
denying the motion the Ninth Circuit stated that
if the appellants
had not been indicted and convicted previously, the government could
have charged them with both the RICO conspiracy
and the substantive
RICO offence, each based partly on the same extortion activity, in
the same indictment. Thus, since the offences
were separate, the
prior conviction did not bar a subsequent prosecution for the
substantive RICO violations based in part on the
same activity.
[42] RICO has come to be described as a formidable
tool in the US Government's arsenal to wage war against crime. It has
been pointed
out that the relationship between the RICO substantive
and predicate offences is crucial to the application of the statute.
Because
Congress expressed its intent that the two offences be
treated separately when it enacted RICO, the Federal Circuit Courts
of Appeal
have rejected double jeopardy attacks on RICO prosecutions.
The reasoning appears to be that Congress manifested its intention
that RICO and its predicates be separate offences.
26
[43] Prosecutions under POCA as also the
predicate offences would usually involve considerable overlap in the
evidence, especially
where the enterprise exists as a consequence of
persons associating and committing acts making up a pattern of
racketeering activity.
Such overlap does not in and of itself
occasion an automatic invocation of an improper splitting of charges
or duplication of convictions.
As should be evident from a simple
reading of the statute, a POCA conviction requires proof of a fact
which a conviction in terms
of the Diamonds Act does not. I can
conceive of no reason in principle or logic why our approach should
be any different to that
adopted by our American counterparts, for as
Justice Frankfurter remarked in United
States
v Dotterweich:
27
'[T]he good sense of prosecutors, the wise guidance of trial judges,
and the ultimate judgment of juries must be trusted. Our system
of
criminal justice necessarily depends on "conscience and
circumspection in prosecuting offenses". '
[44] In a similar vein Navsa and Van Heerden JJA,
writing for the majority in
S v
Whitehead
28
stated:
'There is no
infallible formula to determine whether or not, in any particular
case, there has been a duplication of convictions.
The various tests
that have been formulated by our courts . . . are not rules of law,
nor are they exhaustive. They are simply
useful practical guides and
in the ultimate instance, if these tests fail to provide a
satisfactory answer, the matter is correctly
left to the common
sense, wisdom, experience and sense of fairness of the court.'
[45]
Whitehead
recognised that a single act may have numerous criminally relevant
consequences and may give rise to numerous offences. Our legislature
has chosen to make the commission of two or more crimes within a
specified period of time and within the course of a particular
type
of enterprise independent criminal offences. Here the two statutory
offences are distinctly different. Since POCA substantive
offences
are not the same as the predicate offences, the State is at liberty
to prosecute them in separate trials or in the same
trial. It follows
as well that there could be no bar to consecutive sentences being
imposed for the two different and distinct
crimes as the one requires
proof of a fact which the other does not. Although a court in the
exercise of its general sentencing
discretion may, with a view to
ameliorating any undue harshness, order the sentences to run
concurrently. Thus, by providing sufficient
evidence of the five
predicate acts, the State has succeeded in proving the existence of
the ‘racketeering activity' as defined
in POCA.
[46] Lastly, as to sentence: Section 87(a) of the Diamonds Act
provides:
'Any person who is convicted of an offence under this
Act shall be liable
in the case of an offence referred to in section 82(
a
)
or (
b
), to a fine not exceeding R250 000, or to imprisonment
for a period not exceeding ten years, or to both such fine and such
imprisonment'.
Section 82(a) refers inter alia to any person who
contravenes sections 19(1), 20 and 21. Thus notwithstanding the
learned trial
judge having misdirected himself by convicting each
appellant in terms of the wrong section of the Act, that misdirection
does
not vitiate the sentence, for as the section makes plain the
legislature intended a contravention of each of those sections to be
visited with the same maximum penalty.
[47] The question is thus whether it can be said
that the trial court did not exercise its judicial discretion
properly. As to that,
the sentence of the first appellant does not
appear to me to be startlingly inappropriate. The same, however, does
not hold true
of the second appellant. It is so that the stone in
question weighed 91 carats, which, according to the state, he sold to
the first
appellant for R 14 000. Neither that in itself, nor
anything else on the record that I can find, can justify the grossly
divergent
sentences between that imposed on the second appellant, a
first offender, and that imposed on the first (being 12 months
imprisonment)
in respect of the same transaction in contravention of
the Diamonds Act. Both appellants were associated to more or less the
same
degree in the commission of the offence. If anything the first
appellant’s conduct ought to have attracted greater opprobrium
because he was the financier and kingpin of this murky business. In
those circumstances it has to be said that the sentence of
four
years’ imprisonment (albeit that it was coupled with a fine of
R 20 000 and half of which was conditionally suspended)
imposed on
the second appellant is disturbingly inappropriate and warrants
appellate interference (
S v
Giannoulis
).
29
At the very least it seems to me that the sentence imposed on the
second appellant should be equated to that imposed on the first.
It
follows that the sentence imposed by the trial court on the second
appellant falls to be set aside and in its stead I would
substitute
the following:
‘Accused number 6 is sentenced to pay a fine of R 20 000 or in
default of paying the fine to a term of imprisonment for a
period of
one year of which R 10 000 or six months imprisonment is suspended
for a period of five years on condition that he is
not again
convicted of a contravention of sections 18, 19, 20 or 21 of the
Diamonds Act 56 of 1986, committed during the period
of suspension’.
[48] In the result:
(1)(a) The first appellant’s convictions for contravening s 21
of the Diamonds Act 56 of 1986 are altered to convictions
for
contravening s 20 of that Act.
(b) Save as is set out in para 1(a), the first appellant’s
appeal is dismissed.
(2)(a) The second appellant’s conviction for contravening s 21
of the Diamonds Act 56 of 1986 is altered to a conviction
for
contravening s 19 of that Act.
(b) Save as set out in para 2(a), the second appellant’s
appeal against his conviction is dismissed.
(c) The appeal of the second appellant against sentence succeeds to
the extent that the sentence imposed on him is set aside and
in its
stead is substituted the following:
‘Accused number 6 is sentenced to pay a fine of R 20 000 or in
default of paying the fine to a term of imprisonment for a
period of
one year of which R 10 000 or six months’ imprisonment is
suspended for a period of five years on condition that
he is not
convicted of a contravention of sections 18, 19, 20 or 21 of the
Diamonds Act 56 of 1986, committed during the period
of suspension’.
_________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES:
For
the 1
st
Appellant: T Möller
Instructed
by:
Van
der Merwe & Robertson
c/o
Oosthuizen Meyer De Waal
Cape
Town
Symington
& De Kok
Bloemfontein
For
the 2
nd
Appellant J L Vismer
Instructed
by:
Legal
Aid Board
Cape
Town
Bloemfontein
Justice Centre
Bloemfontein
For
Respondent: A M Breitenbach SC
H
M Slingers
Instructed
by:
The
State Attorney
Cape
Town
The
State Attorney
Bloemfontein
1
Act 127 of
[1811] EngR 232
;
1992.
2
Act 32
of
1998.
3
Act 56
of
1986.
4
Act 121
of
1998.
5
Act 17
of 1956.
6
Act 51 0f 1977.
7
1965 (4) SA 439
(A) at 440D-H.
8
2005 (1)
SACR 420
(SCA) at 430j-431a.
9
According to s 1 ‘magistrate includes an
additional magistrate and an assistant magistrate but not a regional
magistrate’.
10
Sanderson v A G Eastern C
ape
1998 (2) SA 38
(CC) para 23.
11
[2005] ZACC 1
;
2005 (4) SA 581
(CC) para 29.
12
1998 (1) SACR 654
(W) at 657G-H. Cited with
approval by Scott JA in his minority judgment in
S
v Pillay
2004 (2) SACR 419
(SCA) para
10.
13
[1996] ZACC 25
;
1996 (4) SA 187
(CC) para 13.
14
1963 (2) SA 389
(A) at 393H.
15
1965 (4) SA 439
(A) at 440H.
16
1968 (3) SA 339
(A) at 341C.
17
1996 (2) SACR 1
(A).
18
1944 (AD) 493 at 508.
19
1973 (1) SA 34
(A) at 38H.
20
1981 (3) SA 172
(A) at 182G-H.
21
S v Mavinini
2009 (1) SACR 523
(SCA) para 23;
S v
Thandwa
2008 (1) SACR 613
(SCA) para
53;
S v
Chabalala
(2003) (1) SACR 134
(SCA) para 21.
22
2009 (1) SACR 406
(SCA) para 5.
23
18 USC §1961 (5):
'A "pattern of
racketeering activity" requires at least two acts of
racketeering activity, one of which occurred after
the effective
date of this chapter and the last of which occurred within ten years
(excluding any period of imprisonment) after
the commission of a
prior act of racketeering activity'.
24
United States v Harley
678 F.2d 961
(1982);
United States v
Martino
[1981] USCA5 913
;
648 F.2d 367
(1981); United
States v Peacock
[1981] USCA5 1216
;
654 F.2d 339
(1981).
25
[1982] USCA9 1503
;
685 F.2d 1208
(1982).
26
Karen J Ciupak
'RICO and the Predicate Offenses:
An Analysis of Double Jeopardy and Verdict Consistency Problems'
(1982) 58
Notre Dame Law Review
382.
27
[1943] USSC 168
;
320 U.S. 277
(1943).
28
2008 (1) SACR 431
(SCA) para 35.
29
1975 (4) SA 867
(A).