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[2011] ZASCA 48
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S v Boekhoud (2011 (2) SACR 124 (SCA)) [2011] ZASCA 48; 522/10 (30 March 2011)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 522/10
THE STATE
.................................................................................................................
Appellant
and
HENDRIK LOURENS JACOB BOEKHOUD
..........................................................
Respondent
______________________________________________________________
Neutral citation:
S v
Boekhoud
(522/10)
[2011] ZASCA 48
(30 March 2011)
CORAM:
Navsa, Heher, Cachalia, Bosielo JJA and Petse AJA
HEARD:
1 March 2011
DELIVERED:
30 March 2011
SUMMARY:
Application for leave to appeal following on refusal by high court to
reserve questions of law in terms of
s 319
of the
Criminal Procedure
Act 51 of 1977
─ uncertainty about facts to which questions
relate ─ confusion and contradictions in indictment, summary of
substantial
facts and further particulars supplied by State ─
questions concerning the application of doctrine of common purpose
unrelated
to specific charges ─ State still considering
redrafting of indictment ─ application for leave to appeal
refused.
______________________________________________________________
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
South Gauteng
High Court (Johannesburg) (Borchers J sitting as court of first
instance).
1. The application for condonation for
late filing of the application for leave to appeal is granted.
2. The application for leave to appeal
is dismissed.
______________________________________________________________
JUDGMENT
______________________________________________________________
NAVSA JA (Heher, Cachalia, Bosielo JJA
and Petse AJA concurring)
[1] This is an
application by the Director of Public Prosecutions, South Gauteng,
for leave to appeal to this court against a decision
of the South
Gauteng High Court (Borchers J), in terms of which it had
refused an application to reserve certain questions
of law in terms
of s 319 of the Criminal Procedure Act 51 of 1977 (the CPA). The high
court had ruled that it had no jurisdiction
in relation to offences
allegedly committed by the respondent, Mr Hendrik Boekhoud,
whilst he was resident in the United Kingdom.
The matter was referred
for the hearing of oral argument before us as was an application for
condonation for the late filing thereof.
1
[2] During 2006 Mr Boekhoud, along
with four co-accused, was indicted in the high court on a main charge
of contravening s 2(1)(e)
read with sections 1, 2(2), 2(3), 2(4) and
3 of the Prevention of Organised Crime Act 121 of 1998 (POCA) ─
these offences
relate to racketeering activities ─ and 54 other
counts, which include a number of counts of theft, fraud, money
laundering
in contravention of s 4 of POCA, read with sections 7A and
8 thereof and also contraventions of the provisions of the Mining
Rights
Act 20 of 1967. A number of alternative charges to each of the
55 charges was preferred against the respondent. These include
contraventions
of Exchange Control Regulations, the Mining Rights Act
and POCA. The indictment, itself extends to 72 pages. The associated
summary
of substantial facts comprises 11 pages.
[3] As appears to be the wont of the
State in certain high profile cases, it appears to have adopted a
scattergun approach to the
prosecution, covering as many bases as
possible. Whilst at face value this approach may appear prudent it
often leads to a lack
of focus and imprecision.
[4] Unsurprisingly, the extensive and
voluminous charge sheet led to Mr Boekhoud requesting further
particulars in terms of s 87
of the CPA. The request comprised 36
pages. The State furnished 67 pages of further particulars.
[5] At the
commencement of the trial Mr Boekhoud tendered a plea in terms of s
106(1)(f) of the CPA.
2
He averred that
with the exception of the main count (the racketeering charge in
terms of s 2 of POCA) the court lacked jurisdiction
to try him on all
the others. The reason for the racketeering charge being excluded is
that s 2(1) provides that a person who commits
any of the acts listed
thereunder shall be guilty of the offence whether or not they were
committed ‘within the Republic
or elsewhere’.
[6] At this stage it is necessary to
set out the background against which the charges were brought and the
plea of a lack of jurisdiction
raised. At the centre of the charges
is the theft of unwrought precious metals (upms) stolen from South
African mines, principally
in the Rustenburg area, and which
ultimately found their way to the United Kingdom. The upms it appears
might have contained one
or other of the precious metals in the
platinum group, which includes gold, platinum, palladium and rhodium.
[7] The State’s case was that
after certain persons had physically stolen the upms from South
African mines Mr Boekhoud’s
co-accused came to possess them
within South Africa, knowing they were stolen. Thereafter the upms
were exported by them to a refinery
in the United Kingdom, which for
all practical purposes was owned and controlled by Mr Boekhoud.
[8] To export the ore to the United
Kingdom documentation had to be prepared, which, according to the
State, did not represent the
true value of the ore. Consequently the
documentation was false. This explains the theft, fraud and unlawful
possession of upms
charges as well as the charges involving exchange
control regulations.
[9] If the State’s affidavit in
support of the present application for leave to appeal is to be
believed (in conjunction with
the heads of argument filed on its
behalf both in this court and the court below) its case against Mr
Boekhoud, as set out in the
indictment, is ‘accurate, clear
succinct and detailed’. It was submitted that simply put the
State’s case was
that Mr Boekhoud was involved in the
planning of all of these offences with his co-accused. According to
the State, an examination
of the indictment, the summary of
substantial facts and the further particulars reveals that this was a
scheme involving all of
the accused, including Mr Boekhoud. The
veracity of the State’s assertions in this regard is in issue
in this case.
[10] In upholding Mr Boekhoud’s
plea of lack of jurisdiction, Borchers J recorded (at para 11 of her
judgment), that in its
reply to the request for further particulars
the State had alleged that all the acts which constituted criminal
conduct by Mr Boekhoud
were performed by him outside the boundaries
of South Africa. She said the following:
‘
These
are the central facts which run through the indictment. Minor
exceptions to the pattern which I have sketched and small variations
in the manner in which certain acts were performed are in my view
relevant.’
[11] Before us the State was adamant
that the further particulars supplied by it did not allege that all
of Mr Boekhoud’s
acts, constituting the criminal conduct in
respect of which he had been charged, were committed outside of South
Africa. The State
submitted that Borchers J had erred in this regard.
[12] In her judgment Borchers J noted
that Mr Boekhoud was originally a South African citizen but that in
the 1980’s he renounced
his South African citizenship and
became a citizen of the Netherlands. Since then he has resided and
worked in the United Kingdom.
Whilst he owns assets here and visits
this country occasionally he is neither resident nor domiciled here.
[13] The learned judge’s
material findings were that the court lacked jurisdiction on two
grounds. First, the acts, which
constitute the crimes of theft, fraud
and the various alternatives, were committed not by him but by his
co-accused. Second, such
acts as he had performed were all committed
in the United Kingdom and South African courts consequently have no
jurisdiction.
[14] In reaching those conclusions the
court below postulated the general position in regard to territorial
jurisdiction: South
African courts only exercise jurisdiction over
offences committed by persons within South Africa. Generally,
offences committed
beyond the borders of South Africa cannot be
prosecuted here.
[15] Borchers J
expressed views concerning the interpretation and application of s 2
of POCA, which she expressly stated were
obiter
.
This is an aspect to which I shall return briefly in due course.
[16] The learned
judge went on to consider a submission by counsel for the State that
Mr Boekhoud was liable to be convicted on
counts 2-55 on the basis of
having formed a common purpose with his co-accused. It was contended
on behalf of the State that the
actus
reus
of
one person can be imputed to another where there is proof of a common
purpose between them. The court below thought that what
was being
sought was the extension of extra-territorial jurisdiction over Mr
Boekhoud for acts committed by his co-accused in South
Africa.
Borchers J considered that there was no authority for this
proposition by the State, which she considered ‘remarkable’.
She stated the following:
‘
There
is as far as I can ascertain, no occasion on which a court has
exercised extra-territorial jurisdiction over actions performed
entirely outside South Africa’s borders, save where such
jurisdiction is extended expressly by statute. Treason may be a
partial exception but even there I note that the courts found that by
broadcasting propaganda from abroad the accused overseas
was creating
airwave disturbances or changes in South African air or atmosphere.
Even here some sort of
actus
reus
in
South Africa was required by the courts.’
[17] For all the reasons stated
Borchers J held that the court below had no jurisdiction to try Mr
Boekhoud on counts 2-55, nor
on any of the alternative charges in the
indictment.
[18] I have doubts about the
correctness of the learned judge’s approach to the application
of the doctrine of common purpose,
spurred no doubt by the State’s
own confusion in this regard. Put differently, it is not clear to me
that the application
of the common purpose doctrine involves a court
extending its jurisdiction extra-territorially. This is an aspect
discussed in
more detail later in this judgment. However, as will
become clear the central issue in this application for leave to
appeal is
whether certainty exists in regard to all of the facts to
which the question relates or on which the legal point hinges. That
issue
is inextricably linked to the intelligibility and precision
with which the indictment, the summary of substantial facts and the
further particulars were framed.
[19] As will become clear, the
expression ‘extra-territorial jurisdiction’ was wrongly
employed and it distracted all
concerned and led to confusion.
[20] Subsequent to
the finding of the court below, that it lacked jurisdiction in
respect of counts 2-55, the State resorted to
s 319 of the CPA, in
terms of which it applied to that court to reserve questions of law
for the consideration of this court.
3
Expectedly, the
application was opposed by Mr Boekhoud.
[21] Not dissimilarly to the manner in
which it framed the indictment and the accompanying documentation,
the questions were rather
intricate. The first question was framed as
follows:
‘
(1)
Whether, as a question of law, having regard to the wording of
section 2 as well as the definition of “pattern of racketeering
offences” in section 1, as well as the list of offences set out
in Schedule 1 to POCA, and the law applicable to them (which
offences
include theft, fraud, any offence relating exchange control, any
offence under any law relating to illicit dealing in
or possession of
precious metals or precious stones, contravention chapter 3 of POCA
(sections 4 and 6), the racketeering acts
set out in counts 2 –
55, for a conviction under section 2 to
ensue
,
have to have occurred within the borders of South Africa only.’
This question was accompanied by four
related questions, which for present purposes it is not necessary to
repeat.
[22] Borchers J’s
response to this question was that it postulates that she had held
that for a prosecution of racketeering
under s 2 of POCA to succeed,
the racketeering act as defined must have occurred within the borders
of South Africa. She stated
that she had made no such finding and
that anything she had said regarding s 2 of POCA had been
obiter
.
She held that for that reason it could not form the subject matter of
a reserved question of law in terms of s 319 of the
CPA. The
State does not persist in challenging the learned judge’s
refusal to reserve this question.
[23] The second set of questions that
the State sought to reserve comprised a primary question accompanied
by four associated questions:
‘
(2)
Whether in law, the operation of the doctrine of common purpose is
applicable to someone beyond the borders of the Republic
of South
Africa as well, the latter who (1) conspires with others in the
Republic to perpetrate theft, fraud and/or statutory offences
related
to the theft, fraud and/or statutory offences, and/or, (2) who acts
in concert with others in the Republic through acts
of association
(such as refining property, selling property, remitting profits) for
the mutual benefit of the participants.
[A] Related questions to
question 2
(a) Whether in law, a
person abroad who conspired or reached agreement with others in South
Africa to perpetrate an offence in South
African, can, once the said
offence has been executed by such others in South Africa, be charged
in a South African court with
the completed offence because of the
conspiracy/agreement earlier reached?
(b) If the offence is
perpetrated over a period of time, and the agreement or conspiracy to
commit a particular crime or crimes
of an ongoing nature, is the
answer to the question still the same?
(c) Can such person
abroad also be charged on the basis of common purpose, having regard
to acts of association perpetrated abroad?
(d)
Which law with regards to the elements of unlawfulness and
mens
rea
is
applicable to such person abroad, that of South Africa or that of the
place abroad where such person was located at the time
of the
perpetration of the offence or offences by others in South Africa.’
[24] Questions 3, 4 and 5, drafted in
the same convoluted and extended fashion relate to the offence of
theft and, as recorded by
the court below, all arise from the State’s
contention that the doctrine of theft is a continuing offence, which
it was submitted
afforded extra-territorial jurisdiction. One of the
related questions was whether the doctrine of continuity was also
applicable
in ‘taking-out’ cases, where someone outside
the country knows that the property was stolen, intentionally assists
the thieves in South Africa by further dealing with or handling the
stolen property.
[25] The court below responded to
these questions by stating that the fact that theft is a continuing
offence did not entitle it
to exercise extra-territorial
jurisdiction. Borchers J said the following:
‘
This
is the law, whether the case is a so called “bringing in”
or “taking out” case.’
[26] Questions 6
and 7 ask whether ss 4 and 6 of POCA
4
apply to acts
committed extra-territorially. The learned judge answered these two
questions tersely, in the negative.
[27] Question 8 is framed in a broad
and somewhat curious manner:
‘
Whether
as a question of law, the power of the High Court to develop the
common law, becomes a duty because of the interest of justice
principle envisaged in section 173 of the Constitution, 108 of 1996,
and/or because of the constitutional duty of the State to
effectively
prosecute crime, once that court forms the view that common law
principles with regards to common law offences do not
provide for
extra – territorial jurisdiction and therefore ought to be
developed.’
[28] Borchers J had the following to
say about that question:
‘
Question
8 was never raised before judgment and therefore forms no part of the
judgment. I have never formed the view that the common
law ought to
be developed to provide for extraterritorial jurisdiction in the
factual situation presently before the court. I was
not asked even to
consider that question. This question can therefore not be reserved
as a question for the consideration of the
Supreme Court of Appeal.’
[29] The learned judge consequently
refused the application to reserve questions in terms of s 319 of the
CPA in its entirety. It
is necessary to record, as the court below
did in its judgment upholding the plea of non-jurisdiction, that Mr
Boekhoud’s
co-accused have either had charges against them
withdrawn or have pleaded guilty in terms of s 105A of the CPA and
entered into
plea bargain agreements with the State. Mr Boekhoud
remained the only accused in the court below.
[30] At the outset before us, counsel
for the State readily accepted that not all of the counts between
count 2 and 55 were applicable
to Mr Boekhoud. Several were
primarily directed against his co-accused. Counsel indicated that the
State might have to give
consideration to whether the counts
involving contraventions of the Exchange Control Regulations should
be withdrawn. The State
might also give consideration to withdrawing
some of the theft charges. Importantly, counsel for the State
conceded that in relation
to the indictment and associated
documentation, it might have to ‘return to the drawing board’
before resuming Mr Boekhoud’s
prosecution.
[31] Before the
judgment of the Constitutional Court in
S
v Basson
2007
(1) SACR 566
(CC), this court had repeatedly held that a question of
law could only be reserved in terms of s 319 of the CPA, upon
conviction
or acquittal of an accused and that an order upholding an
exception to a charge was neither a conviction nor an acquittal and
consequently
could not be reserved for consideration by this court.
In
Basson
the Constitutional
Court was concerned with circumstances where the upholding of an
objection to an indictment had the effect of
barring the State from
prosecuting the accused on charges which were quashed.
[32] The Constitutional Court had
regard to the State’s prosecutorial authority, enabling it to
fulfil its constitutional
obligations to prosecute those offences
that threaten or infringe the rights of its citizens. It noted that
the purpose of s 319
was amongst others to allow the State to appeal
on a point of law to the SCA. At para 148 the following is stated:
‘
Section
319(1) provides that if “any question of law arises on the
trial in a superior court”, the Court may of its
own motion or
at the request of the prosecutor or accused reserve that question for
consideration by the SCA. There is nothing
in the language to suggest
that the State may only request the reservation of questions directed
at the conviction or acquittal
of the accused. Section 319(2) indeed
strongly suggests that the Legislature intended to permit an appeal
against any order upholding
or dismissing an objection by way of a
reservation of a question of law. The subsection provides that “(t)he
grounds upon
which any objection to an indictment is taken shall, for
the purposes of [s 319], be deemed to be questions of law.” ’
[33] Whilst
appreciating that that there was a well-established legislative and
judicial policy which precluded piecemeal appeals
to the SCA the
Constitutional Court noted there was no such problem where the only
charge against an accused is quashed. That effectively
brings the
proceedings to an end.
5
The same would
apply in the event that all the charges in an indictment were to fall
away because of a ruling on jurisdiction.
6
It went on to hold
that there is no bar to a question being reserved in this regard.
[34] Whenever a
question of law is reserved in terms of s 319 of the CPA, certainty
must exist in regard to all of the facts to
which the question
relates or on which the legal point hinges. In
S
v Basson
2003
(2) SACR 373
(SCA) the following summary appears at 378-379:
‘
The
State has no right to appeal in terms of the Act against incorrect
factual findings by a trial court. The State can appeal only
if the
trial court gave a wrong decision due to a mistake of law. In order
to determine whether the trial court erred in law the
factual basis
upon which it based its decision must be determined. Another factual
basis cannot give an indication whether the
court made a mistake of
law. It follows that a question of law arises only when the facts
upon which the trial court based its
judgment could have another
legal consequence than that which the trial court had found. For
those reasons (a) there must be certainty
regarding the legal issue
being raised and the facts upon which the trial judge based her or
his findings, and (b) when a question
of law is reserved, it has to
be set out clearly not only which legal issue is raised but also the
facts on which the trial court
based its finding.’
See also S v Goliath
1972 (3) SA 1
(A)
at 9H.
[35] The five questions set out in
paragraph 23 above are couched in the abstract. They are posed
theoretically without reference
to specific charges or the
allegations in those charges that the State will set out to prove.
Furthermore, the questions conflate
conspiracy with common purpose.
Whilst one could agree beforehand to act together with others, prior
agreement is not always necessary
before an accused can be convicted
on the basis of common purpose. Before us it was submitted on behalf
of the State that this
court ought to consider all the charges and
the alternatives, relate them to the summary of substantial facts and
the request for
further particulars and the responses thereto and
that this would then provide the factual background against which the
questions
should be answered. So much then for precision and the
notion that counsel are there to assist the court and not the other
way
around.
[36] At this stage
it is necessary to consider in some detail, the indictment, the
summary of substantial facts, the request for
further particulars and
the responses thereto. A careful reading of the first 26 pages of the
indictment reveals that the 55 offences
allegedly committed by the
accused are named, without amplification or factual setting. On page
27 of the indictment there is a
‘preamble’ to the
racketeering charge and the alternatives thereto. The preamble
purports to explain the genesis and
purpose of section 2 of POCA. It
records that it was modelled on legislation that exists in the United
States of America, namely,
The Racketeer Influenced and Corrupt
Organisations Act (RICO), found at Title 18, United States Code,
Section 1961
et
seq
.
7
[37] I interpose to consider the
provisions of section 2 of POCA and the definition of ‘a
pattern of racketeering activity’.
Section 2 provides:
‘
Offences
(1) Any person who ─
(a) (i) receives or
retains any property derived, directly or indirectly, from a pattern
of racketeering activity; and
(ii) knows or ought
reasonably to have known that such property is so derived; and
(iii) uses or invests,
directly or indirectly, any part of such property in acquisition of
any interest in, or the establishment
or operation or activities of,
any enterprise;
(i) receives or retains
any property, directly or indirectly, on behalf of any enterprise;
and
(ii) knows or ought
reasonably to have known that such property derived or is derived
from or through a pattern of racketeering
activity;
(i) uses or invests any
property, directly or indirectly, on behalf of any enterprise or in
acquisition of any interest in, or
the establishment or operation or
activities of any enterprise; and
(ii) knows or ought
reasonably to have known that such property derived from or through a
pattern of racketeering activity;
acquires or maintains,
directly or indirectly any interest in or control of any enterprise
through a pattern of racketeering activity;
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;
manages the operation or
activities of an enterprise and who knows or ought reasonably to
have known that any person, whilst employed
by or associated with
that enterprise, conducts or participates in the conduct, directly
or indirectly, of such enterprise’s
affairs through a pattern
of racketeering activity; or
conspires or attempts to
violate any of the provisions of paragraphs (a), ((b), (c), (d), (e)
or (f), within the Republic or elsewhere,
shall be guilty of an
offence.’
[38] Section 1 of POCA defines ‘a
pattern of racketeering activity’ as
‘
the
planned, ongoing, continuous or repeated participation or involvement
in any offence referred to in Schedule 1 and includes
at least two
offences referred to in Schedule 1, of which one of the offences
occurred after the commencement of this Act and the
last offence
occurred within 10 years (excluding any period of imprisonment) after
the commission of such prior offence referred
to in Schedule 1.’
Schedule 1 refers, amongst others, to
the offences of theft and fraud.
[39] In count 1 Mr Boekhoud was
charged with a contravention of s 2(1)(e) of POCA. In two
alternatives to the main count he was
charged with contraventions of
s 2(1)(g) and 2(1)(b) of POCA.
[40] Returning to the indictment, the
State purports therein to explain how an enterprise can be a
legitimate entity, or not. The
indictment notes that at least two
predicate offences, listed in Schedule 1 have to be committed within
the listed period. The
indictment states that the acts that comprise
the ‘pattern of racketeering activity’ are also separate
criminal offences
that may be charged separately. Counts 2-55,
according to the State, were meant to do just that.
[41] The ‘enterprise’
contemplated in s 2 of POCA is explained in two further pages of the
indictment and amounts to
what is set out in summary form in para 9
above. In the next two pages of the indictment the State sets out the
objects and the
activities of the enterprise, which is in effect a
repetition of what has already been described with a little more
detail added.
[42] The indictment then goes on to
explain that the constituent racketeering acts or the predicate
offences, as they are now commonly
referred to, are those set out in
counts 2-55. The indictment proceeds to link the predicate offences
and the alternative counts
to the enterprise.
[43] At page 69 of the indictment the
following appears:
‘
At
the time of stealing the unwrought precious metals in question a
common purpose existed between accused 1, 2, 4 and 5 to steal,
export
and sell the material with a view to profit from the sale.’
[44] The State was requested to
provide exact details concerning the
actus reus
of Mr Boekhoud
in the illegal procurement (theft) and smuggling (fraud) of the upms.
The State responded as follows:
‘
As
can be gleaned from the Indictment it is not alleged by the State
that accused 1 physically partook in the acquiring (theft)
or illegal
exportation (fraud) of the unwrought precious metals. It is alleged
that he and the other accused were associated together
in an illegal
enterprise that had as its main aim the procurement of unwrought
precious metals, the unlawful dispatch of those
metals from South
Africa to the United Kingdom and money laundering as regards the
remittances and proceeds unlawfully earned as
consequences of the
first two activities.’
[45] In regard to the preparation and
presentation of falsified export documentation the indictment alleged
that ‘on occasion’
Mr Boekhoud had directed how it was to
be done.
[46] In response to the question
whether Mr Boekhoud performed any act or acts in relation to any of
the preferred charges at any
place other than in Ramsay, Peterborough
in the United Kingdom, the State said:
‘
Accused
1 always acted through [his refinery] and the said address belongs to
[the refinery]. In that sense he always acted from
the said address,
except with regard to counts 27, 29 and 51. . . .
Accused 1, however,
communicated from time to time with one or more accused, . . . who
were in South Africa.’
[47] Significantly, in response to an
enquiry about the legal and factual basis upon which common purpose
is to be inferred, the
State said the following:
‘
The
State will ask the court to look at all the evidence and all of the
acts of all the accused
as
a whole at the end of the trial
to
determine whether or not a common purpose (objective of the group)
existed between the participants to steal, dispatch and sell
for
profit. With regard to the legal basis upon which the existence or
otherwise of a common purpose needs to be determined the
position is
well established. With reference to
S
v Mgedezi
1989
(1) SA 687(A)
, the Constitutional Court in
S
v Thebus and Another
[2003] ZACC 12
;
2003
(6) SA 505
(CC) at 532 H-I, said the following about common purpose,
in particular with regard to
mens
rea
:
“If the prosecutions relies on common purpose, it must prove
beyond reasonable doubt that each accused had the requisite
mens rea
concerning the unlawful outcome at the time the offence was
committed.” And, further, that: “He or she must
have
intended that criminal result or must have foreseen the possibility
of the criminal result ensuing and nonetheless actively
associated
himself or herself reckless as to whether the result was to ensue.”
The State can rely on circumstantial evidence.
See
S
v Blom
1939
(AD) 188.’ (My emphasis.)
[48] In response to a question whether
Mr Boekhoud committed the crime of racketeering in Johannesburg, the
State said:
‘
The
State did not allege that Accused 1 was in Johannesburg when he acted
as alleged. . . .’
[49] In response to a question about
whether Mr Boekhoud acted elsewhere ─ other than in
Johannesburg ─ the State responded
in the following manner:
‘
The
State does not allege that the accused acted “elsewhere”.
However, other members/associates of the enterprise did.
The word elsewhere is
used in the Indictment because some acts by enterprise
members/associates happened at places other than Johannesburg
and
surroundings in the UK. In this regard the State alleges that in
respect of counts 2 – 7, 15, 17, 18, 19, 26, 30, 32
-34 the
stolen unwrought precious metals originates from the Bushveld
platinum area (Rustenburg). In respect of counts 14 and 16,
the State
alleges that the bulk of the material in these counts were stolen
from the Bushveld platinum area, but that a portion
of the stolen
material originates from the Great Dyke area . . .
Even
where the theft of unwrought precious metals happened outside the
jurisdiction area of the Gauteng South Division of the High
Court or
borders of South Africa, the Gauteng South Division of the High Court
of South Africa still has jurisdiction in regard
to such stolen
material found or handled within its jurisdiction area.
. . .
What is important is that
the State must be able to prove that Accused 1 knew that the
unwrought precious metals that he received
from the Oliver Tambo
International Airport in collaboration with others was stolen, not
where it was stolen from . . .’
[50] Mr Boekhoud requested the
following particulars in respect of count 1:
‘
The
State is required to indicate on what basis it is alleged, in fact
and in law, that the Witwatersrand Local Division of the
High Court .
. . has jurisdiction in respect of accused 1 and the acts he is
alleged to have performed in the execution of the
crimes perpetrated
by the enterprise’.
[51] The State responded thus:
‘
The
unwrought precious metals in the Indictment was handled and/or
possessed within the jurisdiction area of this Honourable court.
It
was dispatched from the Oliver Tambo International airport to Accused
1. This Honourable Court has jurisdiction in respect of
Accused 1’s
activities because he is
inter
alia
charged
in terms of section 2(1)(e) of POCA as an associate/participant of an
enterprise that acted through a pattern of racketeering
activity to
commit the offences set out in the Indictment, which provides for
extra territorial jurisdiction. It furthermore has
jurisdiction
because Accused 1 has been charged with 2(1)(b), 4 and 6 of POCA,
which provides for extraterritorial jurisdiction.
Moreover, he is
charged with conspiracy (refer section 2(1)(g) of POCA) and/or that
he
acted with a common purpose, which doctrines also provides for
extraterritorial jurisdiction
.’
(My emphasis.)
[52] The State was asked to provide
the dates, times and places where Mr Boekhoud is alleged to have
stolen the upms and the
‘precise and exact
actus reus
’
of Mr Boekhoud in committing the theft of upms. The State said the
following:
‘
The
State does not allege that Accused 1 physically stole or handled the
unwrought precious metals in question in South Africa.
As already
stated above, he received it in the United Kingdom. It is trite law
that theft is a continuous offence. . . .’
[53] Insofar as possession in
contravention of the Mining Rights Act is concerned, the State was
asked to ‘indicate the factual
and legal basis for the
allegation that accused 1 possessed the unwrought precious metal..’
The response was as follows:
‘
The
State relies on the doctrine of common purpose re possession in South
Africa. With reference to possession in the UK, the State
relies on
the provisions of sections 6, 4, and 2(1)(b) [of POCA], the latter
three counts which provide for
extraterritorial
jurisdiction
.
. . .’ (My emphasis.)
[54] In a subsequent paragraph in the
further particulars supplied by the State in relation to the
possession of upms the following
appears:
‘
With
reference to contravening the Mining Rights Act, the State relies on
the doctrine of common purpose. Knowing that he was trading
in stolen
unwrought precious metals forwarded to him from South Africa, accused
1 would then have known as a necessary consequence
that the Mining
Rights Act or another statute was being contravened…’
[55] In relation to fraud connected to
the export of the upms the State, inter alia, said the following:
‘
With
reference to the specific facts in this matter the State will prove
that accused 1 knew or ought reasonably to have known (dolus
eventualis) when importing stolen unwrought precious metals, that
fictitious/false documentation would have to be prepared and
presented to Customs. This is a necessary consequence when exporting
stolen precious metals.’
[56] I consider it necessary to now
deal briefly with the doctrine of common purpose in order to
demonstrate the confusion in the
State’s case flowing from the
indictment, the summary of substantial facts, the further particulars
provided by the State,
and the heads of argument filed by the State
in this court. Professor C R Snyman deals with the doctrine of common
purpose fairly
extensively in his
Criminal Law
4 ed (2002) (at
260
et seq).
The learned author provides a ‘summary of
principles’:
‘
1
If two or more people, having a common purpose to commit a crime, act
together in order to achieve that purpose, the conduct of
each of
them in the execution of that purpose is imputed to the others.
2. In a charge of having
committed a crime which involves the causing of a certain result
(such as murder), the conduct imputed
includes the causing of such
result.
3. Conduct by a member of
the group of persons having a common purpose which differs from the
conduct envisaged in the said common
purpose may not be imputed to
another member of the group unless the latter knew that such other
conduct would be committed, or
foresaw the possibility that it might
be committed and reconciled himself to that possibility.
4. A finding that a
person acted together with one or more other persons in a common
purpose is not dependent upon proof of a prior
conspiracy. Such a
finding may be inferred from the conduct of a person or persons.
5. A finding that a
person acted together with one or more other persons in a common
purpose may be based upon the first-mentioned
person’s active
association in the execution of the common purpose. However, in a
charge of murder this rule applies only
if the active association
took place while the deceased was still alive and before a mortal
wound or mortal wounds had been inflicted
by the person or persons
with whose conduct such first-mentioned person associated himself. .
. .’
[57] When the acts of an accused’s
cohorts committed here are imputed to him, notwithstanding that he is
a foreign national
resident in that country there is no need to speak
of extra-territorial jurisdiction. This is illustrated by the
following example.
A Portuguese national who lives in Lisbon who
plans with his corporate associates who are South African nationals
resident here
to assassinate business rivals based in South Africa
and who is actively involved in the procurement of weapons for that
purpose
can hardly be heard to object to a South African court trying
him for the murders committed here by his co-accused, even though
he
was in Lisbon at the time of the murders. This would apply even if he
left to them the details and the execution of the murders
as long as
they had the common purpose to murder. A South African court would be
trying the Portuguese national for the murder
committed here. The
imputed acts would be sufficient to found jurisdiction.
[58] The State
vacillated between seeking to hold Mr Boekhoud liable on the doctrine
of common purpose by imputing the acts of his
co-accused to him, and
holding him liable on the basis of his own
acts
committed in the United Kingdom. The reference to extra-territorial
jurisdiction being afforded either by way of statute or
the doctrine
of common purpose is confusing and demonstrates the lack of a proper
appreciation of the doctrine of common purpose.
This is demonstrated
by the practice note on behalf of the State in this court, which
reads as follows:
‘
The
aspect that will need to be pronounced upon relates to
extra-territorial jurisdiction by a South African court with specific
reference to the doctrine of common purpose and several other
doctrines and principles pertaining to
inter
alia
the
common law crimes of theft and fraud, as well as whether section 4 &
6 (money laundering) of the Prevention of Organized
Crime Act, No 121
of 1998 (POCA) has extra-territorial effect.’
The confusion permeates the indictment
read with the summary of substantial facts and the further
particulars. It is therefore not
surprising that Borchers J recorded
that the State, in supplying further particulars, alleged that the
acts which constituted criminal
conduct were performed by him outside
the boundaries of South Africa.
[59] At this stage
it is necessary to deal briefly with the purpose and significance of
further particulars provided in terms of
s 87 of the CPA. The
particulars provided must be clearly worded and concise.
S
v Alexander & others
1964
(1) SA 249
(C) at 251H,
S
v Mpetha
1981
(3) SA 803
(C) at 806E-F and E Du Toit, F J De Jager, A Paizes, A St
Q Skeen, S van der Merwe
Commentary
on the
Criminal Procedure Act
p
14-27.
[60]
Section 87(2)
of the CPA
provides:
‘
The
particulars shall be delivered to the accused without charge and
shall be entered in the record, and the trial shall proceed
as if the
charge had been amended in conformity with such particulars.’
Thus, the
particulars that the State provides become part of the record. The
State is bound by them
8
and must prove
them.
[61] Although no
obligation rests on the State to disclose the evidence by means of
which material facts are to be proved it is
obliged to provide
particulars of the material facts, which it intends to prove.
9
[62] A question
framed in terms of
s 319
must be framed in such a way that it
accurately expresses the legal point, but there must also be
certainty concerning the facts
on which the legal point is intended
to hinge. See
Director
of Public Prosecutions, Natal v Magidela & another
2000
(1) SACR 458
(SCA) para 9. This principle is usually applied to
questions being framed at the end of a trial upon conviction or
acquittal. I
can see no reason why the same should not apply to the
present situation where the indictment and associated documentation
runs
into hundreds of pages and where the need for clarity is equally
imperative. Indeed, it should notionally be easier to frame such
questions when a charge is quashed at the outset. One would in such
event be confined to the indictment and related documentation
to
which the questions should easily relate.
[63] Tellingly, the State, as pointed
out in para 47 above, stated that it would ask the court to look at
all the evidence and all
the acts of the accused as a whole at the
end of the trial to determine whether the accused acted with others
in a common purpose
to steal, dispatch and sell the upms for a
profit. More damning for the State, however, is the concession during
argument that
several of the counts preferred against Mr Boekhoud
have to be revisited or abandoned.
[64] In relation to the set of
questions in para 23 above, the following questions arise:
To which specific counts do they
apply? Is common purpose still relied upon by the State to extend the
jurisdiction of the court
below extra-territorially? In respect of
which particular acts was there a common purpose and in respect of
which is there reliance
placed on the provisions of POCA for the
extension of jurisdiction extra-territorially?
[65] Generally, the question remains:
which counts are to be revisited or redrafted or withdrawn? One must
guard against being seduced
into answering questions such as those
set out in para 23 in a vacuum. Should the State wish to ground its
case on common purpose
and seek to impute the conduct of perpetrators
in South Africa to Mr Boekhoud then it should say so clearly and
unequivocally in
respect of each of the charges it intends to prefer
against him. The State is seriously contemplating redrawing the
indictment
because it recognises that there are flaws. There is
therefore no finality or clarity in respect of the charges it intends
finally
to prefer against Mr Boekhoud. That in itself is fatal
to the State’s case.
[66] In
Basson
the Constitutional
Court was concerned that the State should not lose its right to
prosecute by not having the ability to appeal
against an exception to
a charge. It is not a concern we should lose sight of. However, in
the present case, the main count and
its alternatives remain extant.
Having regard to the main count and the material parts of the summary
of substantial facts, it
is the racketeering offences that the State
is most intent on establishing.
[67] Borchers J
expressed the
obiter
view that the
reference in the definition to a pattern of racketeering activity is
a reference to offences committed in South Africa.
She expressed the
view that the predicate offences, which constitute the pattern of
racketeering activity, can be committed by
a person or persons other
than the accused and all that is required is involvement or
participation in some form by the accused.
10
In summary, the
learned judge’s
prima
facie
view
appears to be that the extra-territorial jurisdiction afforded to the
court below in relation to Mr Boekhoud is premised on
his co-accused
having committed the predicate offences and that he was involved to
some degree or participated in some form. She
appears to hold the
view that the predicate offences have to be committed in South
Africa. She did not, however, decide all those
questions finally.
[68] In
S
v Dos Santos
[2010]
ZASCA 73
(27 May
2010); 2010 (2) SACR 382
(SCA) Ponnan JA said the
following (para 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.’
[69] In para 40 of
Dos
Santos
,
the following appears:
‘
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.’
[70] It appears that the State intends
to prove the predicate offences and if it proves that Mr Boekhoud
shared a common purpose
with his co-accused in respect of one such
offence, but does not establish a pattern of racketeering activity it
might consider
whether a decision of guilt on one such offence is a
competent verdict in terms of s 270 of the CPA. If the court below is
disinclined
to agree, the State will have a clearly defined set of
facts against which to frame a question in terms of s 319, should it
be
so advised.
[71] Furthermore, if the State proves
a common purpose in respect of a pattern of racketeering activity and
the court below is disinclined
to convict Mr Boekhoud in respect
thereof because it considers that this would mean it was exercising
extra-territorial jurisdiction,
which in its view the statute or the
doctrine precludes it from doing, then there would be a defined set
of facts against which
a question could be framed. Courts of appeal
are, however, not in the business of giving advice. It is for the
State to consider
its options and to act advisedly.
[72] The problems referred to above
are also evident in relation to questions 2, 3, 5, 6 and 7. As stated
earlier in this judgment,
the State has misconceived its own case and
has employed the expression ‘extra-territorial’ loosely
and without due
regard to the principles of the doctrine of common
purpose. It appears not to be able to decide the foundations of its
case and
is caught betwixt and between a number of conflicting
concepts. I must confess that the meaning of question 8 eludes me. It
is
so broad and unconnected to any particular count as to be
virtually unintelligible. In any event, as pointed out by Borchers J,
it was never an issue pertinently raised before her.
[73] It was submitted on behalf of Mr
Boekhoud that the application for condonation for the late filing of
the application for leave
to appeal be refused. The State, as is
often the case, was at the mercy of transcribers. It took some time
for it to obtain the
judgment of the court below. The explanation of
the steps taken by the State is, in my view, a reasonable one. I
would accordingly
grant condonation.
[74] There is some force in the
submission on behalf of Mr Boekhoud that the State’s
application for leave to appeal is not,
as required by SCA rule
6(5)(a), ‘clear and succinct and to the point’. In my
view, it should not in the totality of
circumstances for that reason
alone be dismissed.
[75] For all the reasons stated above,
there are no prospects of success and the application for leave to
appeal must fail. The
following order is made:
1. The application for condonation for
late filing of the application for leave to appeal is granted.
2. The application for leave to appeal
is dismissed.
_________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For Appellant: J W S de Villiers
E H F le Roux
Instructed by
Not applicable
For Respondent: W Vermeulen
B Myburgh
Instructed by
B D K Attorneys Johannesburg
Symington & De Kok Bloemfontein
1
In
terms of s 21(3)(c) of the Supreme Court Act 59 of 1959.
2
Section
106(1)(f) provides:
‘
When
an accused pleads to a charge he may plead ─
. . .
(f)
that the court has no jurisdiction to try the offence.’
3
Section
319 reads as follows:
‘
(1)
If any question of law arises on the trial in a superior court of
any person for any offence, the court may of its own motion
or at
the request either of the prosecutor or the accused reserve that
question for the consideration of the Appellate Division,
and
thereupon the first-mentioned court shall state the question
reserved and shall direct that it be specially entered in the
record
and that a copy be transmitted to the registrar of the Appellate
Division.
(2) The grounds upon
which any objection to an indictment is taken shall, for the
purposes of this section, be deemed to be questions
of law.
(3)
The provisions of ss 317(2), (4) and (5) and 318(2) shall apply
mutatis
mutandis
with
reference to all proceedings under this section.’
4
Section
4 creates money laundering offences and s 6 makes it an offence for
any person to acquire, use or have possession of property
which he
or she knows or ought reasonably to have known that it is or forms
part of the proceeds of unlawful activities of another
person.
5
P
ara
149.
6
See
Basson
para
151
.
7
In
the twentieth century the opening of markets, the free movement of
persons, goods, capital and services and the improvement
in
transport and telecommunications provided a perfect opportunity for
the globalisation of crime. We are living in times in
which
governments are rightly concerned about suppressing transnational
crimes. Legislation creating offences such as money laundering
abound. For an interesting discussion of the topic see an article by
Neil Boister ‘The trend to “universal extradition”
over subsidiary universal jurisdiction in the suppression of
transnational crime’
2003
Acta Juridica
287.
8
R
v Verity-Amm
1934 TPD 416
at 422,
R v Wilken
1945 EDL 246
at 254,
S v Mandela
1974 (4) SA 878
(A) at 882E,
S v
Nathaniel & others
1987 (2) SA 225
(SWA) at 235D.
9
S
v Cooper & others
1976 (2) SA 875
(T) at 885H-886A.
10
In
S v Eyssen
2009
(1) SACR 406
(SCA) para 7, this court said the following of a charge
in terms of s 2(1)(e) and (f) of POCA:
‘
It
is a requirement of the subsections in question that the accused (in
ss
(e)
)
or the other person (in ss
(f)
)
must participate in the enterprise’s affairs. It will
therefore be important to identify what those affairs are. It will
also be important for the State to establish that any particular
criminal act relied upon, constituted participation in such
affairs.
. . . The participation may be direct, or indirect.’
At
para 9 of
Eyssen
Cloete JA said the
following:
‘
The
participation must be by way of ongoing, continuous or repeated
participation or involvement. The use of “involvement”
as well as the word “participation” widens the ambit of
the definition. So does the use of the words “ongoing,
continuous or repeated”. Although similar in meaning, there
are nuances of difference. “Ongoing” conveys the
idea of
“not as yet completed”. “Continuous” (as
opposed to “continual”) means uninterrupted
in time or
sequence. “Repeated” means recurring.’