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[2011] ZASCA 162
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De Vries v The State (130/11) [2011] ZASCA 162; 2012 (1) SACR 186 (SCA); [2012] 1 All SA 13 (SCA) (28 September 2011)
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THE SUPREME COURT
OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case No:
130/11
In
the matter between:
SELWYN WINSTON DE VRIES
.............................................................
First
Appellant
VIRGIL
LENNITHE DE VRIES
...........................................................
Second
Appellant
JULIAN
MICHAEL VAN HEERDEN
.....................................................
Third
Appellant
LLEWELLYN
SMITH
..........................................................................
Fourth
Appellant
ACHMAT MATHER
................................................................................
Fifth
Appellant
and
THE STATE
................................................................................................
Respondent
Neutral citation:
De Vries v The State
(130/11)
[2011] ZASCA 162
(28 September 2011)
Coram:
Navsa, Mhlantla and Leach JJA
Heard:
29 August 2011
Delivered:
28 September 2011
Summary:
Criminal law and procedure ─
cigarettes stolen in series of hijackings sold to appellant for
distribution ─ appellant
guilty of theft of cigarettes as well
as of money laundering under POCA ─ those offenses also
predicate offences justifying
racketeering conviction under s 2(1)(e)
of POCA ─ State entitled to prosecute all such offences in a
single prosecution ─
such not an improper splitting of charges
nor leading to a duplication of convictions
__________________________________________________________________
O R D E R
___________________________________________________________________
On appeal from:
The Western Cape High Court (Cape
Town), (Bozalek J) sitting as court of first instance):
The appeal is dismissed.
___________________________________________________________________
J U D G M E N T
___________________________________________________________________
LEACH JA (NAVSA AND MHLANTLA JJA concurring)
[1]
The five appellants were among eleven accused tried in Western Cape
High Court, Cape Town on a plethora of charges, including
several
under the Prevention Of Organised Crime Act 121 if 1998 (‘POCA’).
The trial commenced in August 2005 and ran
in fits and starts for
some three years. It resulted in all five appellants being convicted
on some or other of the charges. The
fifth appellant, who was accused
no 11, was convicted of three charges under POCA and two of theft and
sentenced to an effective
5 years’ imprisonment. With leave of
the trial court, the fifth appellant appeals to this court against
his convictions,
both in respect the facts found proved as well as in
respect of two special entries recorded by the trial court. The
remaining
appellants were granted leave solely in respect of the
first special entry. But, although they were represented at some
stage and
were responsible for having prepared the record,
1
they prosecuted their appeals no further and did not
appear at the hearing. Presumably they intend to abide this court’s
decision
on the first special entry. In any event, in the light of
their failure to appear I intend to proceed on the basis that the
fifth
appellant alone is before us on appeal, and shall thus refer to
him henceforth as ‘the appellant’.
[2] During 2003 the British American Tobacco Company of
South Africa (BATSA) was the victim of a series of armed robberies
carried
out by an armed gang which hijacked BATSA trucks at gunpoint
and stole their cargoes of cigarettes. On each occasion the truck was
stopped by members of the gang masquerading as policemen (they wore
police uniforms and used a vehicle with a flashing blue police
light)
who called on the driver to stop. When he complied, they held him up
at gunpoint while cases of cigarettes were transferred
to a waiting
truck and then removed to Gauteng for sale. The first two of these
robberies occurred in the Western Cape; the initial
incident on 24
June 2003 outside Worcester and the second on 12 August 2003 near
Darling. The value of the cigarettes stolen was
considerable;
R690 285 on the first occasion and R719 351 on the second.
Both robberies were the brainchildren of Selwyn
de Vries, who played
an active part in their organisation and execution, and who was aided
and abetted by his younger brother,
Virgil de Vries. They were,
respectively, the first and second accused in the trial in the high
court.
[3] It is often said that there is no honour among
thieves, and that proved to be the case in regard to a third robbery
that occurred
on 2 October 2003 at Kinkekbos near Port Elizabeth in
the Eastern Cape. It had been carefully planned by Selwyn de Vries
and other
members of his gang who had travelled to the Eastern Cape
to spy out the land and had selected a place suitable to carry out a
similar hijacking. However when it was suspected that Selwyn de Vries
had stolen a considerable sum of money from the aunt of Julian
van
Heerden,
2
one of his gang members, members of the gang fell out
with one another and Van Heerden and others went off to carry out the
third
robbery without the De Vries brothers. They did so using the
same modus operandi
as before. Disguising
themselves as policemen, they flagged down a BATSA truck near
Kinkelbos and held up the driver at gunpoint.
The truck’s cargo
was transferred to another truck being driven by Vernon James
Aspeling, who had also driven the getaway
truck during the first two
robberies and who later played a substantial role in the trial of the
appellant and his co-accused.
Van Heerden and the other robbers then
drove off towards Gauteng leaving Aspeling following behind in the
truck carrying the spoils.
However the De Vries brothers had smelled
a rat. They hastened to the Eastern Cape, arriving on the scene
shortly after the incident.
Aspeling had not gone far when they drew
up alongside his truck and threatened to shoot him if he did not
stop. He did, and the
De Vries brothers and a companion assumed
control of the truck and took it on a different route to Gauteng. Van
Heerden and his
crew learned what had happened and, once both groups
of robbers had returned to Gauteng, a confrontation between them took
place
which resulted in a gun-battle during which Virgil de Vries
sustained a severe gunshot wound. It also attracted the attention of
the police and, ultimately, led to the arrest of the De Vries
brothers and a number of the other miscreants.
[4] As a sequel to these events, the appellant and
eleven others were arraigned for trial in the high court on various
charges.
It was not suggested that the appellant had personally
participated in any of the robberies but the state alleged that he
had purchased
the stolen cigarettes and had received them for the
purpose of resale, well knowing that they had been stolen. He was
therefore
charged with an alleged contravention of s 2(1)(f) of POCA
(count 1 of the indictment); an alleged contravention of s 2(1)(e) of
POCA (count 2 ); a number of counts of robbery with aggravating
circumstances; and three counts of ‘money laundering’
in
contravention of s 4 of POCA.
[5] The matter was set down for trial on 1 August 2005.
When the matter was called that day, the prosecutor informed the
court that
she could not proceed as she was still awaiting both the
necessary written authority from the National Director of Public
Prosecutions
(‘NDPP’) required under s 2(4) of POCA and a
centralisation certificate under
s 111
of the
Criminal Procedure Act
51 of 1977
. This led to the matter being postponed for two weeks to
enable the state to get these formalities in order.
[6] When the matter resumed on 15 August 2005 it
appeared, that following representations received, the NDPP had
decided not to
authorise the prosecution of the 11
th
accused cited in the charge, Denzil Boyles. The charges against him
were withdrawn and led to the appellant, who had until then
been the
12
th
accused in the indictment, becoming accused no 11 and
the charge sheet being amended accordingly. Following this, both the
centralisation
certificate and the requisite written authority under
s 2(4)
of POCA, which by then had come to hand, were handed in
without objection from the defence. Thereafter the charges were duly
put
and the trial eventually got under way.
[7] The trial turned into a marathon, hallmarked by
unnecessarily lengthy and tiresome cross-examination. It was also
interrupted
by a number of interlocutory applications. Eventually,
after some three years, it culminated in most of the accused being
convicted
on various counts and sentenced to varying terms of
imprisonment. The appellant was convicted on two counts of theft
arising from
the two robberies in the Western Cape, the court
concluding although he had not participated in the robberies himself,
he had indeed
purchased the stolen cigarettes a time when he must
have been aware that they were stolen goods. The court also concluded
that
the appellant’s actions in doing so for the purpose of
resale amounted to ‘money laundering’ as envisaged in
s 4
of POCA, and convicted him on two charges under that section. Finally
the court concluded that through his actions the appellant
had
associated with the enterprise of the De Vries gang and had
participated in its affairs through a ‘pattern of racketeering
activity’ in contravention of
s 2(1)(e)
of POCA, and convicted
the appellant on count 2 of the indictment as well. The appellant was
sentenced to an effective total of
five years’ imprisonment
with a further three years’ imprisonment being conditionally
suspended. It is not necessary
to deal with the individual sentences
for purposes of this judgment as there is no appeal in that regard.
[8] Immediately after sentence had been imposed, the
appellant applied for leave to appeal. He also applied for no less
than14 special
entries to be entered onto the record of which the
court a quo found all but two to be vexatious (I shall return to them
in due
course). In regard to the application for leave to appeal,
counsel for the appellant indicated that a formal document containing
the grounds of appeal was in the process of being prepared and
undertook to hand it in in due course. As the 27 grounds of appeal
upon which the application for leave was based all related solely to
the conviction which had occurred several months earlier,
it is
inexplicable that a written document containing the grounds of appeal
had not been prepared. Be that as it may, the learned
judge in
granting leave to appeal stated that he had decided ‘not to
attempt to sift the numerous grounds of appeal, many
of which are
interwoven with others, but rather to allow the (appellant), through
his notice of appeal, to stipulate the grounds
upon which he proposes
to rely’. Unfortunately neither the promised grounds of appeal
nor a notice of appeal were ever forthcoming,
which complicated
matters both for this court as well as for his counsel who proceeded
to raise issues in respect of which leave
to appeal had been neither
sought nor granted.
[9] The first issue to be decided is whether the court a
quo erred in concluding that the cigarettes stolen in the initial two
robberies
in the Western Cape were indeed ultimately sold and
delivered to the appellant as, if his denial of having purchased them
cigarettes
is reasonably possibly true, his convictions cannot stand.
The principal state witness implicating the appellant was Aspeling.
The holder of a heavy-duty driver’s licence who had in the past
operated his own transport business, Aspeling had also run
a bottle
store and a nightclub through which he had come to know the De Vries
brothers.
[10] According to Aspeling, about a month before the
first robbery he was approached by an acquaintance known as Zallie
who introduced
him to Julian van Heerden (accused no 3 in the trial).
At their request, he arranged the hire of a truck which he agreed to
drive
in order to transport wrecked motor cars from Klerksdorp. This
proved to be a ruse on the part of Zallie and Van Heerden as they
told him to drive them to Cape Town rather than to Klerksdorp. On the
way, they met the De Vries brothers and, on arriving in the
Western
Cape, Aspeling eventually learned that the reason the truck was
required was to transport cigarettes which were to be stolen
from
BATSA. He seems to have had no difficulty in falling in with the plan
and drove the truck not only to the scene where the
robbery was
carried out, but thereafter back to Cape Town and, eventually, via a
circuitous route back to Gauteng.
[11] On reaching Gauteng, Aspeling drove directly to
Selwyn de Vries’ home in Ennerdale where 163 cases containing
cigarettes
were initially offloaded but were later repacked into the
truck. Aspeling testified that he then drove the truck to Lenasia,
following
Virgil de Vries and Van Heerden who were travelling in
another motor vehicle. They led him to a nursery in Lenasia where the
cases
of cigarettes were offloaded onto pallets. While there, he saw
Virgil de Vries together with the appellant who was dressed in Muslim
attire. At some stage Virgil de Vries addressed the appellant as ‘Bra
Achie’ and told him he needed the parcel. The
appellant
immediately produced a bundle of bank notes totalling exactly R10 000
and gave it to Virgil de Vries. It was the exact
amount needed to pay
the balance due in respect of the hire of the truck and Virgil de
Vries, in turn, handed it to Aspeling to
enable him to make the
payment. Several days later at a meeting held at Selwyn de Vries’
home, Aspeling was paid R53 000
as his share of the proceeds of the
robbery.
[12] Several weeks later, at the request of Selwyn de
Vries, Aspeling again hired a similar truck and agreed to participate
in the
second robbery. He described the events surrounding the
robbery in detail and how he had again driven back to Gauteng in the
truck
bearing the stolen cigarettes which, once more, ended up being
finally offloaded at the appellant’s nursery in Lenasia.
Aspeling
stated that the appellant was there at the time and gave
instructions to his workers to assist in the unloading.
[13] For completeness, I should mention that Aspeling
also testified about the planning of the third robbery in the Eastern
Cape,
the execution of that robbery and the subsequent hijacking of
the hijacked cargo of cigarettes. He also described how after the
latter event he had been taken by the De Vries brothers to a house in
Comaro where the cigarettes were left in a garage, and that
he had
heard Virgil de Vries making telephonic arrangements with the
appellant for the cigarettes to be collected. He later ascertained
that the cigarettes had vanished from the garage and, together with
Van Heerden and others, went to confront the appellant at his
place
of business and demanded to be paid. The appellant telephoned Virgil
de Vries and an arrangement was made for Aspeling, Van
Heerden and
the others to go to the home of Selwyn de Vries. They were on their
way there when the confrontation and gun battle
mentioned earlier
took place.
[14] The appellant denied all the allegations involving
him in these events and suggested they were figments of Aspeling’s
imagination, probably designed to cover up the true identity of the
actual purchaser of the stolen cigarettes. Appellant’s
counsel
on appeal sought to criticise Aspeling’s reliability,
suggesting that as he had not identified the appellant at an
identification parade his identification of him in court was no more
than a so-called ‘dock identification’ and thus
inherently unreliable. Of course the presence of an accused in the
dock may sometimes cause a witness to wrongly assume that he
or she
is the responsible person. But this is not such a case. Aspeling
testified about three occasions when he went to the appellant’s
premises and saw the appellant. It is not the appellant’s case
that Aspeling could be mistaken. He contends that Aspeling’s
testimony regarding the delivery of the cigarettes at
his
nursery in Lenasia after the first two robberies and the approach
Aspeling and Van Heerden made to
him
to demand payment for the
cigarettes stolen in the third robbery, is deliberately false. In
these circumstances there is no room
for a possible mistaken
identification. Either Aspeling lied or he told the truth.
[15] The court a quo believed Aspeling. It subjected his
testimony and credibility as a witness to exhaustive scrutiny. In
doing
so, it emphasized that Aspeling had testified in great detail
in regard to the various roles that individual participants had
played
in the material events. So great was his assurance in doing so
that one of the counsel who appeared for certain of the accused
complemented him on the faultless delivery of his evidence in chief.
Importantly he was in no way shaken by lengthy and harrowing
cross
examination and, as appears from the following extract of six
paragraphs from the judgment which are worthy of repetition,
impressed the trial judge as a witness:
‘
[73]
This Court had an extended opportunity to observe the witness. He
was, as was put to him on several occasions by counsel, clearly
a man
of considerable intelligence. He was, furthermore, articulate with a
confident and assertive personality. He appeared to
bear no
particular malice or resentment against the accused despite oblique
references to incidents which he regarded as threatening
to his or
his wife’s safety and that of his son by his first marriage.
This lack of malice was borne out by the fact that
he had no
hesitation in testifying that certain of the accused were not
involved in certain of the robberies. So for example (he)
testified
that accused 6, 7 and 10 were not involved in the first robbery and
that, in relation to the third robbery, accused 10
did no more than
pick up accused 1 at the Kroonvaal toll plaza.
[74] For the most part Aspeling
appeared to enjoy the battle of wits involved in his
cross-examination. This was manifest in his
tendency to sometimes
become somewhat argumentative under cross-examination, to ask the
cross-examiner questions and to argue his
own position or to seek to
demolish the position being advanced by counsel on behalf of one or
other of the accused. Notwithstanding
these criticisms Aspeling’s
evidence as a whole and in cross-examination was most impressive.
Counsel for accused 11, Mr
Spangenberg, placed great reliance on what
he argued was Aspeling’s failure to answer a critical question
in cross-examination.
This incident must be seen in context, however.
In the first place it occurred towards the end of Aspeling’s
marathon stint
in the witness box and towards the end of his lengthy
cross-examination. The cross-examination in question was at times
aggressive
if not ill-tempered with neither the cross-examiner nor
Aspeling prepared to give an inch. Aspeling referred to it as a “tug
of war”. Its tone was evidenced by State counsel’s
objections to aspects of the cross-examination as being “bullying”
and “sarcastic”.
[75] Towards the end of his
eleventh day in the witness box Aspeling declined to answer further
questions concerning the issue of
Zallie misleading him as to the
true purpose of the trip to Cape Town. He did so on the basis that
the answer would become “too
lengthy”. He continued to
answer all other questions until Court adjourned for the day shortly
thereafter. The following
morning at the re-commencement of his
cross-examination, Aspeling immediately declared himself willing to
answer any further questions
on the topic. He explained that he and
the cross-examiner had “started on a rocky road” the
previous day. Asked by
the cross-examiner why he had refused to
answer the previous day he explained, “but to me, it seemed as
if we were at a type
of war or something”. In my view the
explanation furnished by the witness for his refusal to answer the
question the following
day after more mature reflection of his
position largely negated any criticism that this incident adversely
affected his credibility
or indicated an inability to answer was
entirely credible. Further, his preparedness to answer the question
the following day after
more mature reflections of his position
largely negated any criticism that this incident adversely affected
his credibility or
indicated an inability to answer the question.
[76] Notwithstanding the
extremely favourable impression which Aspeling made as a witness, his
evidence was not without fault. I
have already alluded to the
improbability of aspects of his evidence relating to how he was drawn
into the first robbery. A similar
criticism can perhaps be levelled
at his evidence regarding his initial false explanation to his
accomplices as to what had happened
to him whilst driving away from
the scene of the Kinkelbos robbery with the cargo of cigarettes.
Aspeling’s explanation of
his behaviour in this regard is that
he did not want to disclose accused 1 and 2’s role in the
post-Kinkelbos hijacking because
he wished to avoid the spectre of
his accomplices charging off to Johannesburg to engage in a violent
confrontation with accused
1 and 2. This explanation cannot be
rejected out of hand since, given his intelligence and the fact that
he’d already made
the suggestion to accused 1 and 2, it seems
clear that Aspeling had already then seen the possibilities of
negotiating with accused
1 and 2 for a share of the proceeds of the
robbery.
[77] Aspeling impressed as
someone who had decided to make a clean breast of things and was
quite prepared to admit to the criminal
actions in which he had been
involved. He revealed himself as someone who kept cool in a situation
of crisis or pressure and as
someone who would invariably talk his
way out of a tight corner rather than resort to violence or threats
of violence. As far as
accomplice witnesses are concerned, I have
never previously encountered a witness who testified over so wide a
terrain and in such
great detail but with so little damage being done
to his evidence. The above observations were made and impressions
formed, on
a
prima
facie
basis, after
hearing Aspeling testify in February 2006. Given the elapse of more
than two years before argument was eventually heard
I re-read his
transcribed evidence in full after hearing argument which
transcription was available to counsel throughout. If anything,
this
re-reading strengthened my first impressions of his evidence arrived
at more than two years before.
[78] In summary then, Aspeling’s
evidence, although not flawless, contained no material contradictions
or inconsistencies.
What improbabilities there may be in his evidence
are not of such a degree as to render his veracity suspect . . ..’
[16] I do not think that this assessment of Aspeling as
a witness can be materially faulted and it serves as a riposte to
many of
the criticisms levied against him on appeal. Moreover, the
learned judge was acutely aware of the danger of relying upon the
evidence
of a single witness, particularly one who was an accomplice,
and therefore concluded that it would not be safe to rely on
Aspeling’s
identification of the various accused without some
additional safeguard speaking for its reliability. In the appellant’s
case he found such a safeguard in his untruthful evidence in regard
to the security arrangements at his business premises in Lenasia.
[17] A photograph of the entrance of the appellant’s
nursery in Lenasia was produced which showed a high double storied
building,
referred to as the ‘guardhouse’, immediately
adjacent to a large sliding gate. Aspeling testified that this
building
and gate were there when the stolen cigarettes were taken
there after the robberies and had in fact been in existence long
before
then. This the appellant denied. He alleged that the
foundations of the guardhouse had only been laid in July 2003; that
on 5 August
2003, his birthday, the wall was still only a few bricks
high; and that the guardhouse had only been finally completed in
February
2004. In purported proof of this, the appellant handed in an
invoice relating to a payment made for the construction of the
guardhouse
in September 2003 and called the alleged builder, John
Mangongwa, as a witness to testify that he had only built the
guardhouse
during the second half of 2003. The appellant therefore
alleged that Aspeling was untruthful and that he had in fact never
been
to the appellant’s premises.
[18] In order to meet this, the state successfully
applied to re-open its case to prove certain aerial photographs,
allegedly taken
on 2 August 2003, as well as the opinion of a
photogrammetric surveyor who testified that examination of such
photographs showed
that the guard-house had been completed when they
were taken. The court a quo accepted this evidence and concluded that
the evidence
of both the appellant and Mangongwa in regard to when
the guardhouse was constructed was a fabrication. It was this finding
that
was attacked on appeal.
[19] I did not understand the appellant to dispute the
photogrammetric analysis of the photographs or that the guardhouse
had indeed
been built by the time they were taken. What was disputed,
however, was whether the photographs were taken on 2 August 2003 as
the state alleged, the appellant arguing that the state had failed to
prove that to have been the case.
[20] The state sought to prove the date of the
photograph through the evidence of Meshack Thathane, an employee of
AOC Geomatics,
a company that had been employed by the local
authority to map the area. The records of that company reflect that
the photographs
were taken on 2 August 2003 and that Thathane was the
camera operator who did so. He described the process used to take
aerial
photographs and how the
a
film is then
removed from the camera and conveyed to the company’s offices
in a film canister. On each occasion a logbook
with flight details,
including details of the film used, is completed. The logbook
relating to 2 August 2003 was completed in his
hand, save for certain
entries made by the laboratory technician including the film number,
V13928. Thathane confirmed that he
had been the person who took the
photographs on that day, and his evidence in that regard was not
really challenged. All that was
put to him was that he relied on the
logbook to establish the date, to which he replied in the
affirmative.
[21] The aerial photographs in question were processed
from negatives on a film bearing the number V13928. But as that
number had
been written into the logbook by the technician and not by
Thatane, and as the technician was not called, the appellant argued
that the entry was hearsay and that the state had therefore not
established that the photographs had indeed been taken when Thathane
said they were.
[22] Thathane not only described the customary process
which was followed in which the technician wrote the full number onto
the
log during the course of the processing procedure, but went on to
describe how he was involved in the checking process after the
films
had been processed. This involved making copies of the photographs
and laying them out to see that all was in order for the
purposes of
mapping; all of which was generally done within a few days. In these
circumstances, as it would have been readily apparent
to all
concerned in the mapping process if photographs were printed that
were not of the area photographed for mapping a few days
earlier, the
inference is irresistible that the prints which were processed and
used in that process were those he had taken shortly
before –
and that the company’s records were therefore accurate.
Moreover, it was never directly put to Thathane that
the photographs
were in fact not taken on the day that he said. Had he been
specifically challenged in that regard, he might well
have been able
to provide a satisfactory explanation. It was also the undisputed
evidence of Mr Slough, who had been involved in
concluding contracts
for AOC Geomatics, that the company’s contract to carry out the
mapping of the area in question was
carried out in 2003. Bearing all
of this in mind, I am of the view that the state satisfactorily
proved that the photographs were
taken on 2 August 2003. That being
the case, the court a quo correctly rejected the appellant’s
evidence that the guard house
had not yet been fully built when
Aspeling said he had gone to the appellant’s premises.
[23] Counsel for the appellant argued that even if this
court were to conclude that to have been the case, it was merely
established
that the appellant had been untruthful in that regard but
did not render Aspeling’s evidence any more reliable. On the
contrary,
it is trite that regard may be had to untruthful evidence
or mendacity on the part of an accused as a factor reducing the risk
of relying upon an accomplice’s evidence
3
and I am not persuaded that the court a quo erred in its
approach.
[24] In truth the entire issue in regard to whether the
appellant lied about the guard-house is something of a red herring.
His
untruthfulness in that regard was not the sole factor relied upon
by the trial court as a safeguard in accepting Aspeling’s
evidence. This is apparent from the judgment of the court below in
which it is stated that Aspeling’s evidence regarding
the
purchase of the cigarettes was accepted not simply as the appellant
had given false evidence ‘but also in the light of
Aspeling’s
evidence as a whole and the probabilities’.
[25] Importantly, Aspeling’s version was
corroborated by a number of independent objective facts. Thus, for
example, the passenger
list of the InterCape bus service corroborated
his allegation that one of the accused in the trial had travelled
from Cape Town
to Port Elizabeth on 1 October 2003 as he testified;
South African Police Services insignia and several sets of police
uniforms
were found in a room on Virgil de Vries’ property when
he was arrested; an invoice from the transport company from which
Aspeling had hired the truck in August 2003 reflected a payment made
by him as he had testified; a security officer at the Cape
Town
Waterfront confirmed that he had clamped a red Jetta motor vehicle,
an incident which Aspeling testified had occurred when
he had
breakfasted there with Selwyn de Vries and others shortly before the
second robbery. All of this tends to corroborate the
truth of
Aspeling’s detailed version.
[26] In addition, it seems to me to be highly improbable
that Aspeling would implicate his other co-accused in events in which
there
can be no doubt that they did participate, but for some unknown
reason falsely implicate the appellant. It was suggested that he
did
so probably in order to protect the identity of the person to whom
the cigarettes were in fact sold but it is improbable that
he would
have endangered the acceptability of his entire evidence by
implicating a wholly innocent person whom he did not know
and who
might well be in a position to categorically refute his allegations.
Importantly, there is nothing externally visible at
the appellant’s
Lenasia nursery to indicate that he is a purveyor of cigarettes, and
the fact that he does operate a cigarette
wholesaling business from
those premises was something which Aspeling was unlikely to have
known unless he delivered the cigarettes
there as he said he did. It
is also not without significance that he described the appellant as
being dressed in traditional Muslim
attire, which the appellant
admitted he often did, and that the appellant is indeed known by the
name ‘Bra Achie’,
the name Aspeling said Virgil de Vries
used when addressing him.
[27] In the light of all these circumstances, even
without taking the appellant’s mendacity in regard to the
guardhouse into
account, I am satisfied that the trial court
correctly accepted Aspeling’s identification of the appellant
as the person
to whom the cigarettes stolen from the first two
robberies in the Western Cape were delivered. In the light of the
quantity of
cigarettes and the circumstances surrounding their
delivery, the appellant must have known that they had been stolen
and, as theft
is a continuing crime, it was accepted that if this
court found that Aspeling’s version of the delivery was
acceptable, the
appeal in respect of the theft charges should fail.
[28] That brings me to what may be loosely called the
‘technical defences’ raised by the appellant. At this
stage it
is necessary to revert to the application for leave to
appeal when the so-called ‘special entries’ were entered
on
the record for decision by this court. Posed in the form of
questions, they read as follows:
(a)
‘
Did the State prosecute
the accused without being in possession of a valid written authority
by the National Director of Public
Prosecutions in terms of
s 2(4)
of
the
Prevention of Organised Crime, Act 121 of 1998
, the authority in
question being too wide and therefore invalid. Secondly, was the
centralisation directive of the National Director
of Public
Prosecutions in terms of
s 111
of Act 51 of 1977 invalid by reason of
being wide, vague and inherently contradictory.’
(b)
‘Was accused 11’s right to cross-examine within the
trial/s-within-the-trial unfairly limited or disallowed at any
point?’
[29] Unfortunately, neither of these are valid special
entries. As this court has recently been at pains to point out, the
purpose
of a special entry is to record an irregularity affecting a
trial that does not appear from the record; and an attack upon a
ruling
made by a trial court during a course of proceedings does not
qualify ─ see
Staggie v The State
(38/10)
[2011] ZASCA 88
para 16 and
Masoanganye
v The State
(252/11)
[2011] ZASCA 119
para
10. In regard to the first special entry, the alleged irregularities
therein set out arise from exhibits A and B handed in
without
objection at the commencement of the trial and which form part of the
record. Moreover, the argument that the two exhibits
were invalid due
to them having been couched in wide and vague terms was ventilated in
an interlocutory application heard during
the course of the trial,
and rejected in a ruling which all forms part of the record. The
second special entry set out in (b) above,
relating to a ruling in
respect of cross-examination, also relates to a matter of record.
Clearly neither of the special entries
should have been made.
[30] As the appellant abandoned all reliance upon the
second special entry and did not refer thereto in argument, nothing
more need
be said about it. However, the first special entry was made
as both the appellants’ legal representatives and the learned
judge in the court a quo were all under the mistaken impression that
it was appropriate to raise these issues by way of a special
entry.
In these circumstances it would be unjust to penalise the appellant
by refusing to hear argument on what is raised in the
first special
plea, and the solution appears to me to be to regard it as a ground
of appeal and to determine the issues it raises
in that way.
[31] I therefore turn to the issue of the s 2(4) POCA
authorisation raised in the first special plea. The section provides
that
‘(a) person shall only be charged with committing an
offence contemplated in subsection (1) if a prosecution is authorised
by the National Director.’ As already mentioned, the authority
in question was handed in without objection before the accused
were
asked to plead. As appellant’s counsel (who appeared for the
appellant at the trial) freely conceded, at that stage
all concerned
accepted it to be in proper form and related to the POCA charges
levied against the accused in the indictment. However
shortly before
the end of the trial, a judgment in the Pietermaritzburg high court
in the matter of
Moodley and others
4
came to the ears of the appellant’s legal
representatives. The accused in that matter, who were to be tried on
s 2(1) POCA
offences, contended that they had been charged before the
NDPP had given the necessary written authority required by s 2(4),
and
launched an application seeking an order declaring the charges
under s 2(1) to be unlawful. The high court hearing the application
mero motu
raised the
issue that the written authorisation was too broad and ‘lacked
the necessary specificity’ as details of the
dates and places
at which the offences were allegedly committed had not been set out
and, on that basis, upheld the application.
The s 2(4) authorisation
in the present case was in terms virtually identical to that in
Moodley
, and so in
October 2007 the appellant and each of his co-accused launched
interlocutory applications seeking orders that the POCA
counts which
they were facing should similarly ‘be declared to have been
invalidly instituted and be set aside’. In
doing so, they
relied squarely upon the high court’s decision in
Moodley
and an authorisation allegedly lacking in detail.
[32] For purposes of this application, a senior counsel
was brought in to lead the junior counsel who had been representing
the
appellant at the trial. He filed extensive heads of argument
which I shall mention later. On 18 February 2008, the trial judge
delivered his ruling. He found that that even assuming the high
court’s judgment in the
Moodley
case
to be correct, not only was it distinguishable on the facts but the
authorisation in the present case could only be challenged
by way of
an application for a special entry to a higher court. Despite that,
before dismissing the application, he went on to
express an obiter
opinion that it was not the purpose of the authorisation under s 2(4)
to detail the nature and extent of the
prosecution as the indictment
serves that purpose.
[33] It was presumably as a result of this ruling that
the appellant sought his first special entry, intending to rely on
the high
court decision in
Moodley
to attack the certificate. Unhappily for the appellant,
his argument was overtaken by events as the high court’s
decision
was set aside by this court on appeal to it by the state,
the judgment being reported as
NDPP v Moodley
2009 (2) SA 588
(SCA). When the state applied for leave
to appeal, counsel for the accused abandoned the judgment insofar as
it declared the s
2(4) authorization by the NDPP to be invalid and of
no force and effect. The issue was therefore not dealt with in detail
by this
court, but Scott JA observed that the abandonment was clearly
correct and the order of the high court ‘is clearly not to be
regarded as a precedent’.
5
[34] In my opinion Scott JA’s view is clearly
correct. As correctly observed by the court a quo, the indictment
contains the
details of the charges upon which an offender is to be
prosecuted and I can see no good reason for those details to be
repeated
in the s 2(4) authorisation. All that is necessary is for
the NDPP to authorise that the accused be charged with whatever
offence
under s 2(1) is alleged in the indictment. As here the
authorisation reflected the names of the appellant and his various
co-accused,
and the NDPP authorised that they be prosecuted ‘in
respect of a contravention of
ss 2(1)(e)
,
2
(1)(f) and
2
(g) of the
Prevention of Organised Crime Act 121 of 1998
’, all concerned
understood that it related to the proceedings in the court a quo.
Accordingly, that is really the end of
the matter.
[35] It was also argued that even if the
s 2(4)
authorization was in proper form, it had been produced too late as
the appellant had already been charged with committing offences
set
out in the indictment at the time the indictment containing the
s
2(1)
charges was served upon him some months before, when the matter
was postponed in the magistrates’ court for hearing in the
high
court. The appellant contended that the
s 2(4)
authorization should
have been obtained by that stage and that it was too late to obtain
and produce it immediately before the
trial commenced in the high
court. This argument had been raised by the appellant’s leading
counsel’s heads of argument
in the interlocutory application in
relation to the
s 2(4)
authorisation but was not a ground of appeal.
In any event, in the light of the facts of the present case, it is
devoid of merit.
[36] In
Moodley
this
court held it to be unnecessary to decide at what precise stage a
person is ‘charged’ as envisaged by
s 2(4)
, but observed
that until the accused has pleaded, the state would be at liberty to
withdraw the charge and recharge the accused
once the authorisation
is available, an exercise that would serve no purpose.
6
I wholly agree with that sentiment and, indeed, it is a
powerful reason to conclude that the legislature only intended a
person
to be ‘charged’ when the indictment is put and he
or she is asked to plead. But it is unnecessary to reach a final
conclusion in that regard as in
Moodley
,
a case in which the charge had not yet been put to the accused, this
court went on to hold that once the written authorisation
was granted
the prosecution was lawful.
7
Applied to the present circumstances, as the
authorisation was granted and handed in before the accused were asked
to plead, the
proceedings from then on (the trial itself) were
lawful.
[37] Despite this, appellant’s counsel submitted
further that a valid
s 2(4)
authorisation was an essential element of
an offence under
s 2(1)
of POCA; that it was thus essential for the
state to prove that the NDPP had properly applied his mind to the
issue; and that it
could not do so merely by handing in the
certificate as that would offend the best evidence rule. Accordingly,
as the NDPP had
not been called, he argued that the state had failed
to prove a contravention of
s 2(1).
[38] This was also not an issue raised in the grounds of
appeal but an argument set out in senior counsel’s heads of
argument
filed at the stage of the interlocutory application and
repeated, apparently without thought, in the heads of argument filed
in
this appeal. Strictly speaking the issue is thus not properly
before this court. But there is clearly no merit in the argument.
An
offence under
s 2(1)
is committed by the actions of the offender, not
those of the prosecuting authority. The
s 2(4)
authorisation is
simply a procedural requirement that has to be fulfilled. It was
fulfilled in time as set out above, and that
was accepted to be the
case by all the accused, including the appellant. The fact that the
NDPP did not testify is therefore no
reason to upset the appellant’s
conviction on count 2.
[39] I turn to the second part of the first special
entry, namely, the contention that the centralisation certificate
under
s 111
of the
Criminal Procedure Act was
too widely framed. The
principal argument in this regard was that only the 11 accused who
stood trial after the decision not to
proceed against Boyles had been
taken were named in the certificate, although reference was also made
to ‘accused 12’
in certain places. The centralization
certificate was obviously a sloppy piece of work. Changes were made
to its wording in consequence
of the decision to withdraw against
Boyles, and seemingly at that stage certain errors crept in. But
those are clearly no more
than obvious typographical errors and, as
counsel for the appellant conceded, all concerned appreciated that
the certificate related
to the charges that were put to the various
individual accused. As the appellant clearly understood the
certificate, and accepted
it was in proper form, it hardly lies in
his mouth to now complain that it was too widely framed, and there is
no room for an argument
that he was embarrassed by its vagueness.
[40] However, the appellant further argued that there
was no proof that the deputy NDPP who had signed the authorization
had been
duly and properly authorized to do so. This argument, too,
was one carried over into the appellant’s argument from the
heads
of argument filed by senior counsel in the interlocutory
application but not raised as a ground for appeal. It is also not an
argument
that can be determined by the facts on record. The issue was
therefore neither properly raised nor ripe for decision by this
court.
If the appellant wished to contest the validity of the
certificate, he should have done so when it was first produced. At
that
stage he accepted it was in order and for purposes for this
appeal that is really the end of the matter.
[41] The appellant also argued that the manner in which
he was charged resulted in an impermissible so-called ‘splitting
of
charges’ or ‘duplication of convictions’,
leading to him being punished more than once for the same actions.
This argument was based on it being alleged in count 2 of the charge
sheet that he had contravened
s 2(1)(e)
of POCA by having wrongfully
and unlawfully participated in the affairs of an enterprise (the De
Vries gang) through a pattern
of racketeering activity. Details of
the pattern of racketeering activity relied on were set out in
annexure 8 to the indictment.
This is a list of the alleged offences
in the indictment, excluding those under
s 2(1).
In the case of the
appellant, those offences were the charges of theft and charges of
money laundering levied against him –
including the two counts
of money laundering and two counts of theft on which he was
ultimately convicted. Essentially the appellant’s
argument is
that it would amount to an improper splitting charges or duplication
of convictions for the offences of which he has
been convicted to be
taken into account in deciding whether he was guilty of a scheme of
racketeering activity in count 2, and
then to sentence him for each
conviction.
[42] In considering this argument it is necessary to
turn to the provisions of POCA itself.
Section 2(1)(e)
thereof makes
it an offence if any person:
‘
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 1
‘enterprise’ is defined including ‘. . . any
individual, partnership, corporation, association, or other juristic
person or legal entity, and any union or group of individuals
associated in fact, although not a juristic person or legal entity
’
while ‘pattern of racketeering activity’ is
defined as meaning
:
‘
.
. .
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.’
[43] POCA was largely modelled upon so-called ‘RICO’
statute of the United States of America,
8
from which the definitions of ‘pattern of
racketeering activity’ and ‘enterprise’ were
directly taken. Given
the generic similarity of the two statutes, it
is somewhat surprising that neither party referred us to any American
jurisprudence
relating to the issue, the representative for the state
merely stating that her office had insisted that the charge sheet be
drawn
in the way it was: by referring to the theft and money
laundering charges as being the ‘pattern of racketeering
activity’
relied on to prove the POCA charge, count 2. However,
the jurisprudence of the United States is of considerable assistance
in understanding
why indictments are usually formulated in this way.
[44] The Fifth Amendment of the Constitution of the
United States provides that no person shall be ‘subject for the
same offence
to be put twice in jeopardy of life and limb’.
This has given rise to the so-called defence of ‘double
jeopardy’,
a multi-facetted defence which, first, protects a
citizen against a second prosecution for the same events after an
acquittal on
the first charge (in effect what is known in this
country as
autrefois acquit
);
secondly, bars a convicted offender being prosecuted once again for
the same offence (similar to the defence of
autrefois
convict
) and, thirdly, protects against
multiple punishments being imposed for the same offence (as does the
defence of ‘splitting
of charges’ in our law). After the
introduction of RICO and other similar statutes
9
intended to combat organised crime, which introduced
racketeering offences similar to those created by s 2 of POCA, many
accused
offenders in the United States raised pleas of double
jeopardy in circumstances similar to the present. In doing so they
argued
that the RICO charge (sometimes referred to as an ‘umbrella’
charge
10
)
together with the underlying so-called ‘predicate offences’
relied on to prove the racketeering activities, led them
to face
either being convicted again for earlier offences in respect of which
they had already been tried, or to being sentenced
twice for the same
unlawful action. The arguments in respect of those pleas were
essentially the same as that upon which the present
appellant relies,
namely, that having been convicted in respect of the predicate
offences it is impermissible to either convict
or sentence him for
the umbrella offence of racketeering in count 2.
[45] These arguments received short shift in the United
States. In a series of decisions the courts of that country held the
umbrella
offences to be separate and discrete from the underlying
predicate offences – and capable of being punished separately.
11
The reasoning for doing so was set out as follows in
United States v Crosby
[1994] USCADC 376
;
20
F. 3d 480
para 8:
‘
The
Supreme Court's decision in
Garrett
conclusively
established that Congress intended CCE
12
to
be a separate offense from its predicate acts based on the language
and history of the CCE statute.
.
. .
.
We find the statutory language and legislative history of RICO
dictate a similar conclusion.
.
. .
First,
RICO itself defines “pattern of racketeering activity” to
include “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.”
18
U.S.C. § 1961(5)
(emphasis
added). The highlighted statutory language at least suggests that
Congress expressly contemplated that a RICO defendant
might be
incarcerated for one or more of the predicate offenses before being
prosecuted for the RICO violation. Further, Congress's
“Statement
of Findings and Purpose” reinforces this intent, indicating
that RICO was enacted to supplement rather than
replace the existing
predicate crimes and penalties.
See
Organized
Crime Control Act of 1970, Pub.L. No. 91–452, 84 Stat. 922,
923,
reprinted
in
1970
U.S.C.C.A.N. 1073. (“It is the purpose of this Act to seek the
eradication of organized crime in the United States by
strengthening
the legal tools in the evidence-gathering process, by establishing
new penal prohibitions, and by providing enhanced
sanctions and new
remedies to deal with the unlawful activities of those engaged in
organized crime.”). Accordingly, we hold,
as have other
circuits, that Congress intended that a RICO violation be a discrete
offense that can be prosecuted separately from
its underlying
predicate offenses . . .’ (certain authorities omitted).
[46] In my view the same reasoning applies with equal
cogency to POCA. The definition of pattern of racketeering activity,
which
the state is obliged to prove in order to secure a conviction
under s 2(1)(e) of POCA, includes offences for which the offender
may
already have been convicted and sentenced ─ the legislature’s
necessary intent in this regard is to be inferred
from the phrase
‘excluding any period of imprisonment’ in the calculation
of the 10 year period referred to in the
definition of ‘pattern
of racketeering activity’. In addition, the preamble to POCA
also proclaims as its intent the
introduction of ‘. . .
measures to combat organized crime, money laundering and criminal
gang activities’ as ‘.
. . the South African common law
and statutory law failed to deal effectively with organized crime,
money laundering and criminal
gang activities, and also failed to
keep pace with international measures aimed at dealing effectively
with organized crime, money
laundering and criminal gang activities .
. .’.
[47] Due to the similarities between RICA and POCA, and
bearing in mind certain of the decisions in the United States, this
court
in
S v Dos Santos and another
2010 (2) SACR 382
(SCA) concluded:
13
‘
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 . . . . ‘
[48] In order to secure a conviction under s 2(1)(e) of
POCA, the state must do more than merely prove the underlying
predicate
offences. It must also demonstrate the accused’s
association with an enterprise and a participatory link between the
accused
and that enterprise’s affairs by way of a pattern of
racketeering activity.
14
In the light of this, an offence under s2(1) of POCA is
clearly separate and discrete from its underlying predicate offences
and,
in my view the decision in
Dos Santos
in regard to this issue is undoubtedly correct.
[49] This also effectively disposes of the appellant’s
allegation that he could not be convicted on both of the s 2(1)(e)
POCA offence (count 2) as well as the underlying predicate offences
of theft and money laundering. As POCA recognizes that past
convictions may be taken into account in establishing a pattern of
racketeering, there is no reason in either law or logic why
that
pattern cannot be established by proving both the umbrella and
predicate offences in the same trial, as was here the case.
This,
too, was the conclusion in
Dos Santos
where Ponnan JA said:
15
‘
Our
legislature has chosen to make 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 had
succeeded in proving the existence of the “racketeering
activity”
as defined in POCA.’
[50]
Despite this authority, the appellant persisted in an argument that
it had been impermissible for the state to have charged
him with both
count 2 and its predicate offences by contending that once the
prosecuting authority had decided to charge him with
an offence under
s 2(1), it placed the trial procedurally into a category of
prosecution entirely different from a ‘normal
prosecution’
by reason of s 2(2) which reads:
‘
The
court may hear evidence, including evidence with regard to hearsay,
similar facts or previous convictions, relating to offences
contemplated in subsection (1), notwithstanding that such evidence
might otherwise be inadmissible, provided that such evidence
would
not render a trial unfair.’
[51] In the light of this section, the appellant
contended that as s 2(2) makes serious inroads into an accused’s
normal procedural
rights by rendering admissible evidence that would
otherwise be inadmissible – including evidence of previous
convictions
– the trial in respect of offences other than those
contemplated by s 2(1) would be unfair: and for that reason an
accused
cannot be charged in the same indictment with both an offence
under s 2(1) as well as the underlying predicate offences.
[52] It was not suggested that any evidence otherwise
inadmissible had in fact been introduced to the prejudice of the
appellant
or which in any way compromised his defence or rendered his
trial unfair. To that extent the argument is purely academic and it
is unnecessary to consider it in any detail. Suffice it to say that
the trained judicial mind should be able to limit the effect
of
otherwise inadmissible evidence to the charges in respect of which it
is admissible – any s 2(1) charges – and to
exclude it
from consideration in respect of charges in which it is not. Indeed
this is what occurs daily done by courts, eg in
hearing trials within
trials.
[53]
It may well be that the state for some reason decides not to
prosecute the predicate offences in the same indictment as an
umbrella charge, but that is a matter of prosecutorial discretion
which need not detain us here. Of course the state should take
care
to ensure that the manner in which the indictment is drawn and the
evidence presented does not result in an unfair trial,
but the mere
framing of a charge sheet to include both a POCA umbrella offence and
its underlying predicates does not in itself
occasion unfairness.
Without the appellant having established that he was in any way
prejudiced, it cannot be said that the manner
in which the state
exercised its discretion in charging him was improper.
[54] In these circumstances I have concluded that there
was no impermissible splitting of charges nor duplication of
sentences by
reason of the appellant having been charged on count 2
with an umbrella contravention of s 2(1)(e) of POCA as well as the
underlying
predicate offences of theft and money laundering in
respect of which he was convicted.
[55] I should mention that as a ground of appeal the
appellant relied on an alleged splitting of charges involving the
theft and
money laundering offences, contending that both flowed from
his dealings with the cigarettes stolen during the first two
robberies
and that, once convicted of money laundering, he ought not
also to be convicted of theft as well. This argument, quite
correctly,
was not pursued before this court. The statutory offence
of money laundering is created by s 8 of POCA which provides:
‘
Any
person who knows or ought reasonably to have known that property is
or forms part of the proceeds of unlawful activities and
─
(a)
enters into any agreement or engages in any arrangement or
transaction with anyone in connection with that property, whether
such agreement, arrangement or transaction is legally enforceable or
not; or
(b)
performs any other act in connection with such property, whether it
is performed independently or in concert with any other
person,
which
has or is likely to have the effect ─
(i)
of concealing or disguising the nature, source, location, disposition
or movement of the said property or the ownership thereof
or any
interest which anyone may have in respect thereof; or
(ii)
of enabling or assisting any person who has committed or commits an
offence, whether in the Republic or elsewhere ─
(aa)
to avoid prosecution; or
(bb)
to remove or diminish any property acquired directly, or indirectly,
as a result of the commission of an offence,
shall
be guilty of an offence. ‘
[56] By receiving the cigarettes for himself well
knowing they were stolen, the appellant made himself guilty of theft
as it is
a continuing crime. By proceeding to use the cigarettes as
part of his stock in trade as a wholesaler as if they were goods
lawfully
acquired, and thereby disguising or concealing the source,
movement and ownership of the cigarettes and enabling and assisting
the robbers to either avoid prosecution or to remove property
acquired in the robberies, the appellant clearly made himself guilty
of a contravention of s 4. Doing so involved different actions and a
different criminal intent to that required for theft. In these
circumstances there was no improper splitting of charges.
[57] It was not suggested that if Aspeling’s
identification of the appellant was accepted and the various
technical defences
I have dealt with did not succeed, the appellant
was not guilty of the charges of which he was convicted. As I have
found against
the appellant on all these issues, in my judgment he
was properly convicted and, as he does not seek to assail his
sentence, the
appeal must fail.
[58] The appeal is accordingly dismissed.
___________________
L E Leach
Judge of Appeal
APPEARANCES
For Appellant J P Spangenberg
Instructed by
High Court Unit, Cape Town
Justice Centre
Cape Town
Bloemfontein Justice Centre,
Bloemfontein
For Respondent H C Booysen
Instruction by
The Director of Public
Prosecutions
Bloemfontein
1
This
were informed from the bar.
2
He
was the third accused and was initially cited as the third appellant
in this appeal.
3
See
S v Hlapezula
1965 (4) SA 439
(A) at 440F-G.
4
Subsequently
reported as
Moodley and Others v National Director of Public
Prosecutions and Others
2008 (1) SACR 560
(N)
5
At
para 10.
6
At
594 para 12.
7
At
594 para 13.
8
Racketeer
Influenced and Corrupt Organisations statute enacted as Title IX of
the Organised Crime Control Act of 1970, codified
as 18 U.S.C. §§
1961-1968.
9
Eg
the CCE statute referred to below.
10
See
eg Harvard Law Review [vol 122:276 2008] at 480.
11
Compare
eg United States v Peacock,
[1981] USCA5 1216
;
654 F.2d 339
, 349 (5th Cir. 1981);
Garrett v United States,
[1985] USSC 212
;
471 U.S. 773
,
105 S.Ct. 2407
, 85 L.Ed.2d
764 (1985); United States v Pungitore,
910 F.2d 1084
, 1108 n. 24
(3rd Cir. 1990); United States v Beale,
921 F.2d 1412
, 1437 (11th
Cir. 1991); United States v Gonzalez
921 F.2d 1530
, 1538 (11th Cir.
1991); United States v Cyprian,
23 F.3d 1189
, 1198 (7th
Cir.1994); United States v O’Connor,
[1992] USCA7 81
;
953 F.2d 338
, 344
(7th Cir.1994); United States v Crosby, 20 F.3r 480, 484 (D.C. Cir.
1994); United States v Morgano,
39 F.3d 1358
, 1368 (7th Cir. 1994);
United States v Baker, 63 F.3d 1478, 1494 (9th Cir. 1995); Susan S
Brenner
RICO, CCE, And Other Complex Crimes: The Transformation
of American Criminal Law?
William And Mary Bill of Rights
Journal [Vol. 2.2] (1993) 239.
12
Continuing
Criminal Enterprise statute 21 U.S.C. § 849 (1988) which makes
it an offence to engage in a 'continuing criminal
enterprise’
by way of a continuing series of drug offences.
13
At
para 43.
14
S
ee
eg
the judgment of Cloete JA in
S
v Eyssen
2009 (1) SACR 406
(SCA).
15
At
para 45.