Kotze v S (429/08) [2009] ZASCA 93; 2010 (1) SACR 100 (SCA) ; [2010] 1 All SA 220 (SCA) (15 September 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2009
>>
[2009] ZASCA 93
|

|

Kotze v S (429/08) [2009] ZASCA 93; 2010 (1) SACR 100 (SCA) ; [2010] 1 All SA 220 (SCA) (15 September 2009)

Links to summary

THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case no: 429/08
In
the matter between:
NICOLAAS
PETRUS KOTZÈ A
ppellant
and
THE
STATE
Respondent
Neutral citation:
Kotzè
v The State
(429/08)
[2009] ZASCA 93
(15 September 2009)
Coram:
HARMS DP,
HEHER and SNYDERS JJA
and GRIESEL and WALLIS AJJA
Heard
:
20
August 2009
Delivered
:
15 September 2009
Summary: Criminal law – Police trap
and undercover operation –Contraventions of s 20 of Diamonds Act 56
of 1986 – S 252A of
the Criminal Procedure Act.
ORDER
On appeal from:
Cape
High Court (Louw J, Saldanha AJ concurring), on appeal from the
Regional Magistrates’ Court, Bellville.
The appeal is dismissed.
JUDGMENT
WALLIS AJA (HARMS DP, HEHER and SNYDERS JJA and GRIESEL AJA
concurring.)
[1] The appellant, Nick Kotzè,
is a successful businessman and a prominent citizen of Port Nolloth.
On four occasions between
14 July 2001 and 12 February 2002 he
purchased unpolished diamonds from one Frik Terblanche. In all he
bought 21 diamonds for a
total amount of R63 000. Unbeknown to
him (although, as will become apparent, he was alert to the
possibility) Terblanche
was a senior and experienced police officer
attached to the Diamond and Gold Squad, who was operating as an
undercover agent in
a covert police operation known as Project
Solitaire aimed at syndicates dealing unlawfully in diamonds in the
Namaqualand region.
[2] On the basis of Terblanche’s
evidence Kotzè was convicted by the Regional Magistrates’
Court, Bellville on four counts
of purchasing unpolished diamonds in
contravention of s 20 of the Diamonds Act 56 of 1986. He was
sentenced on each count to pay
a fine of R8 000, with an alternative
of 18 months imprisonment. In addition a further sentence of 18
months imprisonment was imposed,
but suspended on certain conditions.
An appeal against his conviction to the Cape High Court was
dismissed. With the leave of that
court he comes on further appeal to
this Court. The appeal is confined to one against conviction only.
The only ground advanced
in support of the appeal is that in terms of
s 252A(3)
of the
Criminal Procedure Act 51 of 1977
the
magistrate should have declined to admit the evidence of Terblanche.
In that event there would have been no admissible evidence
of the
transactions giving rise to the convictions and they would fall to be
set aside.
[3] The use of traps and undercover agents
by the police, both for the prevention and the detection of crime, is
long established,
both here and overseas. However, because it can be
seen as generating the crimes under investigation, it is regarded as
controversial
as a matter of principle and, even in circumstances
where resort to its use may be thought to be acceptable, there is
room for
concern because the methods adopted by the trap or agent
involve deception and can readily be abused. The underlying fear is
that
people who would not otherwise be guilty of criminal behaviour
may be induced by the conduct of the trap or undercover agent to

commit crimes and their reluctance to commit crime may be overborne
by the conduct and inducements offered by the trap or undercover

agent. Our courts have in a number of cases expressed concern about
the conduct of traps and it was the subject of an investigation
and
report by the South African Law Commission.
1
That in turn resulted in the statutory regulation of the
admissibility of evidence derived from the activities of traps and
undercover
agents in the form of
s 252A
of the
Criminal
Procedure Act, although
the section as ultimately enacted is in
material respects different from that proposed by the Law Commission.
This appeal raises
the interpretation and application of that
section.
[4] The background to the case is that in about
2000 the police decided to undertake Operation Solitaire to address
the widespread
problem of syndicates engaged in unlawful dealing in
diamonds in the Namaqualand region. Terblanche, who at that stage
held the
rank of inspector, was selected as the undercover agent. He
and his wife would move to Port Nolloth on the pretext that he had
retired from the police force and was now a pensioner. There he would
make himself known to local people and seek to become accepted
as
part of the local community, a process that it was anticipated would
take some nine months. Thereafter he would engage with
various
suspects (and possibly others he came to suspect as a result of his
activities) in ways that it was thought would lead
to either the
purchase or sale of unpolished diamonds in contravention of the
Diamonds Act. In doing so he would garner the evidence
that would
then be used against those persons in subsequent criminal trials. The
operation was expected to last some two years.
[5] Kotzè was one such suspect
whose name was given to Terblanche as a target to be approached. He
is a prominent person
in the Port Nolloth community having served for
27 years as a town councillor, 11 of them as mayor. He operates a
motor retail
business in the town and also runs a small shop and café
from the same premises. Apart from this business he owns three farms,

some 20 kilometres from Port Nolloth, and another farm across the
border in Namibia that is leased to a company in the Anglo American

group for a rental said at the trial to be in excess of R1 million
per year. He owns and leases residential and business properties
in
Port Nolloth and elsewhere. He has over the years been involved in
the diamond industry, in prospecting for, mining, cutting
and
polishing diamonds, although at the time of these events he had
ceased these activities, apart from having a stake in two diamond

mining operations for which a licence was held in his son’s name
and a share in a diamond cutting business. Overall it is clear
that
he is person of financial substance and some wealth. He is also
involved in the local congregation of the Nederduitse Gereformeerde

Kerk and testified that it was customary for him and his wife to
entertain members of the congregation at their home after the

services each Sunday with tea and coffee and general hospitality and
discussion about church affairs and religious matters. This

hospitality loomed large in the evidence in this case.
[6] Terblanche arrived in Port Nolloth on 1
August 2000 and he met Kotzè for the first time on that day in
the course of
looking for suitable accommodation. Apparently he and
his wife had first approached an estate agent in the town but she had
nothing
available that seemed suitable and, according to Terblanche,
suggested that he should approach Kotzè. Although some point

was made of this meeting in cross-examination, Kotzè himself
did not regard it as odd or unusual, which is not surprising
because
he rented out houses through an agency operated by his daughter.
Kotzè suggested a house owned by his mother but
this was
unsuitable and the following day the Terblanches found a house at
McDougall’s Bay. In the course of effecting introductions

Terblanche told Kotzè that he was a retired policeman, to
which he says Kotzè responded by saying; ‘Ek is ʼn
smokkelaar.’
2
Kotzè said he had no recollection of making such a comment but
accepts that he might have done so in jest. However, Terblanche
seems
to have taken it seriously as it was conveyed by him to his superiors
in the course of the operation.
[7] After this initial incident Terblanche and his wife
moved into the house they had found on 7 September 2000 and settled
into
life in and around Port Nolloth on the basis of his cover story
that he was a pensioner. It appears that the community accepted
this
story at face value. The evidence does not deal in detail with any
matters other than the development of his relationship
with Kotzè,
but he must have been engaged in other activities as at the end of
the operation nearly two years later 34 people
were arrested for
offences relating to unlawful dealing in diamonds and, apart from the
present one, he gave evidence in a number
of trials arising out of
these arrests.
[8] Terblanche established a close and friendly
relationship with Kotzè. He would regularly visit him at his
business both
to buy a newspaper and other small items and to chat
socially and came to know him and his family, including Kotzè’s
elderly
mother with whom he would on occasions sit and have coffee.
He and his wife attended the NGK church although their affiliation
had been with the Afrikaanse Protestante Church. They were from time
to time invited with other members of the congregation to join
Kotzè
and his wife for tea at their home after service. Terblanche
ascertained the birthdays of Kotzè’s children
and would
telephone and wish Kotzè well on these occasions. At a later
stage of the relationship they discussed personal
matters such as the
death of Terblanche’s sister in January 2001, and later still the
death of one of Kotzè’s children
and certain fears that
Terblanche had about his health. On one occasion in September 2001
Terblanche and his wife, together with
Mrs Kotzè, spent the
day looking at the flowers for which the area is renowned, although
business prevented Kotzè
from joining them. However apart from
the visits after church and occasional meals at the Kotzè home
they did not visit
one another’s homes. The only occasions on which
Kotzè went to the Terblanche home were pursuant to two of the
transactions
giving rise to the charges against him.
[9] The first transaction occurred on
14 July 2001 when Terblanche sold four unpolished diamonds
to Kotzè for a
price of R10 000. He describes the
circumstances in which that came about as follows. On 4 April
2001 after a visit to
Johannesburg Kotzè asked where he had
been. He told him he had been visiting his children and on the way
back had stayed
with a diamond cutter friend whom he wanted to repair
his wife’s ring. Kotzè’s response was to say that if
Terblanche
had that type of problem he could have helped and then,
according to Terblanche, added that he would also have a diamond cut
and
polished for him.
3
Kotzè also said that if Terblanche had any other unpolished
diamonds he should bring those as well. There is some confusion
in
Terblanche’s evidence whether this latter statement was made on
4 April 2001 or during a subsequent conversation
on
10 May 2001, when he approached Kotzè on the
instructions of his handlers to ascertain whether the earlier
offer
to have a diamond polished still stood and, if so, what it would
cost. Be that as it may, Terblanche’s handlers were prompted
by his
report of these exchanges with Kotzè to apply to the relevant
authorities to use four unpolished stones for the purpose
of
Terblanche making an approach to Kotzè to have one stone
polished and to sell three more. This was approved.
[10] The sale was made on 14 July 2001 when,
according to his evidence, Terblanche went to Kotzè’s
business premises
and in the latter’s office showed him the stones.
Kotzè told him that he had an appointment and that the stones
could
either be left there or taken away by Terblanche and brought
back on his return. Terblanche left the diamonds in a desk drawer
that Kotzè assured him was safe and returned about 15 minutes
later to be told that the diamonds had been sent to be valued.
When a
message was received that the diamond cutter was not available Kotzè
asked if he would sell all four stones and Terblanche
said he would.
He asked Kotzè to make him an offer and the latter wrote R10
on a desk calendar. Terblanche understood this
to mean R10 000,
which he accepted. Kotzè then sent his son to fetch the money
and paid it to Terblanche, who left
the premises and immediately
reported the transaction to his superior.
[11] The second sale occurred on
7 September 2001. Terblanche testified that he visited
Kotzè’s business premises
on 18 August 2001 and
was asked if he had brought anything to sell.
4
Terblanche answered in the negative but assumed that the query
related to unpolished diamonds and so on 1 September he told

Kotzè that he had been offered a packet of diamonds but didn’t
have the money for them. He hoped that Kotzè would
offer to
take over the transaction, as this would enable him to have a second
person present. The reason for this was that the
recordings he had
been trying to make on the occasion of the earlier sale were not
satisfactory. He said that Kotzè told
him that if he were
short of cash for this purpose he would assist him.
[12] Terblanche returned on 7 September with four
diamonds and wearing a coat with pockets in which he had a video
camera.
He told Kotzè he had brought him something and showed
him the diamonds. Kotzè’s response was to say in a whisper

that he hoped that Terblanche was not trying to catch him. Kotzè
then put the diamonds in the drawer of his desk and they
drove out to
his farm where he had something to attend to. During this journey
Kotzè questioned Terblanche about his source
for the stones
and also his background. Terblanche told him that he had left the
police force on early retirement under something
of a cloud. When
they returned from the farm Kotzè said that he would give him
R10 000 for the stones. At the business
premises a friend of
Kotzè’s, a Dr Coetzer, was waiting and Kotzè left him
and Terblanche in conversation while
he went and fetched the money.
On his return Terblanche counted the money and then left. Dr Coetzer
gave evidence and confirmed
the payment and said that Kotzè
told him after Terblanche left that he had got a ‘bargain’ and
showed him a stone that
Coetzer thought was an unpolished diamond.
[13] The third sale was effected on
14 December 2001 and involved seven diamonds and the
payment of R26 000 by Kotzè
to Terblanche. Kotzè had
been away for much of the time after the second transaction. On
7 December 2001 Inspector
Bruwer, who was part of the
covert operation, gave Terblanche seven unpolished diamonds with
instructions to offer them to Kotzè.
On 14 December 2001
Terblanche took the diamonds and went to Kotzè’s business
premises. He says that when he
arrived there Kotzè took him
into his office and asked if he had again obtained unpolished
diamonds.
5
Terblanche confirmed that he had and showed the packet of diamonds to
him. He assumed Kotzè would want to value the diamonds
and
asked when he should return for his money. Kotzè said that he
would bring it to his house. That evening Kotzè
came to his
house and gave him R25 000 and said that he would pay him
another R1 000, which he should collect the next
day from his
business. The events that evening were recorded on video and will be
referred to in more detail later in this judgment.
[14] The fourth and last transaction took place on
10 February 2002 and involved the sale of six unpolished
diamonds for
a price of R17 000. According to Terblanche’s
evidence its background lay in Inspector Bruwer giving Terblanche the
diamonds
with instructions to offer them to Kotzè. In
discussion with Captain Farber, to whom Terblanche was reporting, it
was decided
that it would be best if he could bring Kotzè to
his home rather than trying to do a deal at the latter’s business.
This
was no doubt due to the problems that had been experienced with
recordings in the latter environment and the availability of the

video cameras at the house. On 24 January 2002 Terblanche
accordingly left a message for Kotzè at the business
to come
to his house. By chance, as he was driving home, he encountered Kotzè
driving in the opposite direction. He stopped
him and asked him to
come to his house and drove off to wait for him. Shortly thereafter
Kotzè arrived and after a brief
social conversation Terblanche
took him to his office to view the diamonds. As they left the lounge
Kotzè sought reassurance
from Mrs Terblanche that her husband
was not still a policeman and trying to trap him. He then went into
Terblanche’s office
where he was shown the diamonds. Kotzè
took the diamonds and left after a lengthy and relaxed conversation
with the Terblanches.
No price was discussed at this time. Once again
the events were recorded on video.
[15] The following day Terblanche went to Kotzè’s
business premises and whilst they were sitting in the office Kotzè

asked him where he had got the diamonds he had taken the previous
day. He told Terblanche that four black men driving a red VW
Golf had
approached two Portuguese men in the town in a trap using the same
diamonds. (There had in fact been an arrest of three
men, two of whom
were Portuguese, at a bakery in the town as a result of a trap and
this appears to have been well known.) Terblanche
told him that in
that event he should give him back the diamonds and he would sell
them to a contact in Johannesburg. Kotzè
gave them back to
Terblanche saying that he valued them at R17 000.
[16] Terblanche said that two Sundays later, on
3 February 2002, when he stopped at Kotzè’s shop
to buy a newspaper,
Kotzè asked him if he still had the
diamonds. Terblanche told him that he intended to sell them to his
contact in Johannesburg
and Kotzè responded that if he decided
not to do so his offer to buy them for R17 000 stood. The
following Saturday,
9 February, Terblanche went to Kotzè’s
premises and told him that he had cancelled his visit to Johannesburg
and
if Kotzè was still interested the diamonds were available.
He said that he would come and see Kotzè on the following

Monday. On the Monday evening at about 10.00 pm Kotzè arrived
at his house and said that he had brought him some figs. He
told
Terblanche that he should give him the diamonds but Terblanche made
an excuse about their accessibility and instead took them
to him at
the business the following day. Kotzè took the diamonds and
paid him the R17 000.
[17] Much of this evidence was not disputed
by Kotzè. However in the case of each sale he disputed the
circumstances in which
it had come about. He said that Terblanche had
become an intimate friend of his and that they had shared many
confidences. He claimed
to have been instrumental in bringing
Terblanche and his wife back to a life of faith by inviting them to
the NGK and encouraging
a new religious commitment.
6
He depicted himself as a person of an emotional and extremely
generous disposition
7
who had been completely taken in by Terblanche’s presentation of
himself as a man who had been forced to leave the police force
early
with a diminished pension and no medical aid and who was battling
financially. His impression, so he said, was that Terblanche
was in a
fairly desperate financial position
8
and needed to do things to increase his income. He laid stress on the
fact that Terblanche peddled fish in a township called Sanddrif,
some
eighty kilometres away. He also alleged that on at least five
occasions he lent Terblanche money in amounts varying between
R1 000
and R3 000, which was always repaid. This was hotly disputed by
Terblanche and no record of the loans was produced.
[18] Against that background of close friendship and
apparent financial need Kotzè claimed that on each occasion
that he
bought unpolished diamonds from Terblanche the initiative for
the transaction had come from Terblanche. He says that Terblanche

incessantly brought the subject of diamonds into the conversation
even though he begged him to desist. According to him each time
a
sale was concluded, Terblanche had approached him with a tale of
financial woe and was insistent that Kotzè should purchase
the
diamonds so as to assist him. Against his better judgment and
contrary to his religious beliefs and a spiritual commitment
he had
made at some time in the past never again to be engaged in the
illegal buying and selling of diamonds, he succumbed to Terblanche’s

persistence on each occasion out of a spirit of Christian charity and
a desire to help someone in need. His broad contention, as
put to
Terblanche in cross-examination by his leading counsel, was that:
‘
...hierdie hele wyse waarop u te werk gegaan het met
die beskuldige, die misbruik wat u gemaak het van die kerk, van sy
vriendskap,
al die dinge wat ek reeds aan u gestel het, duidelik
daarop dui dat u nie net die geleentheid wou skep vir hom om ʼn
misdryf te
pleeg nie, u wou hom betrap en u het gesorg dat u hom ver
genoeg uitlok, dat ʼn man met sy tipe persoonlikheid sal val vir
hierdie
jammerhartige figuur wat die paar diamante wou verkoop?’
9
[19] The magistrate ruled at the end of a
trial within a trial that the evidence of Terblanche was admissible.
It is unfortunate
that in deciding to hold a trial within a trial the
magistrate did not require Kotzè to furnish the grounds on
which he
challenged the admissibility of the evidence, as should have
been done in terms of the proviso to s 252A(6). That might have

focussed attention on the pertinent matters in dispute and limited
the lengthy examination and cross-examination over a number
of days
of Terblanche and Kotzè, as well as obviating the need for
some other evidence to be led. Instead a vast array of
issues was
traversed at considerable length and in great detail but at the end
of the day most of these had little bearing on the
central issue of
admissibility. It is important for presiding officers faced with
challenges to the admissibility of the evidence
of a trap to be aware
of and apply subsec (6), in terms of which the accused must
‘
furnish
the grounds on which the admissibility of the evidence is
challenged’. The matter may then, in terms of subsec (7),
be
adjudicated as a separate issue in dispute, ie, during a trial within
a trial.
[20] Subsection 6 provides that the burden
of proof to show that the evidence is admissible rests on the
prosecution and this burden
must be discharged on a balance of
probabilities. This refers to the burden resting on the prosecution
to prove the facts on the
basis of which it contends that the
evidence is admissible, whether under subsec (1) or subsec (3).
The decision as to
its admissibility is a legal decision taken in
accordance with the provisions of s 252A in the light of the
proved facts.
Whilst the section refers to the burden being
discharged on a balance of probabilities, it is in my prima facie
view incompatible
with the constitutional presumption of innocence
and the constitutional protection of the right to silence. Those
rights must be
seen in the light of the jurisprudence of the
Constitutional Court, in which it has been held that their effect is
that the guilt
of an accused person must be established beyond
reasonable doubt.
10
That a confession was made freely and voluntarily and without having
been unduly induced thereto must be proved beyond reasonable
doubt
and I can see no practical difference between that case and the case
where a conviction is based on the evidence of a trap.
Each deals
with the proof of facts necessary to secure the admission of the
evidence necessary to prove the guilt of the accused.
In my prima
facie view therefore, and in the absence of argument, in order for
the evidence of a trap to be admitted, it is necessary
that the trial
court be satisfied that the basis for its admissibility has been
established beyond a reasonable doubt. That was
the case here, for
the reasons set out below, so this issue does not affect the outcome
of this appeal.
[21] The starting point for considering the
admissibility of Terblanche’s evidence is section 252A(1) of the
Act, which provides
that:
‘
(1) Any law enforcement officer, official of the
State or any other person authorised thereto for such purpose
(hereinafter referred
to in this section as an official or his or her
agent) may make use of a trap or engage in an undercover operation in
order to
detect, investigate or uncover the commission of an offence,
or to prevent the commission of any offence, and the evidence so
obtained
shall be admissible if that conduct does not go beyond
providing an opportunity to commit an offence: Provided that where
the conduct
goes beyond providing an opportunity to commit an offence
a court may admit evidence so obtained subject to subsection (3).’
The section adopts the
recommendation of the Law Commission that it is inappropriate to
introduce a defence of entrapment in South
Africa and preferable to
deal with the problems surrounding the use of traps by way of an
exclusionary rule of evidence.
11
Accordingly it excludes the possibility of such a defence by
explicitly stating that the use of a trap or engaging in undercover

operations in order to detect, investigate or uncover the commission
of an offence is permissible. It is not correct to say, as
does one
leading commentator,
12
that it is an authority to use traps and undercover operations ‘in
certain circumstances’. There is no such qualification in
the
section. Absent a constitutional challenge
–
and there is no such challenge in the present case
–
there is no room for an argument that the use of a trap or the
undertaking of undercover operations is unlawful in South Africa.
[22] The section deals with both
traps and undercover operations. Whilst these usually go together
there will be cases where an
undercover operation may involve no
element of a trap. Thus for example the infiltration of an undercover
agent into a gang planning
a bank robbery, a cash-in-transit heist or
the overthrow of the government will not necessarily involve any
element of a trap,
but may merely be an exercise in obtaining
information. Nonetheless it may involve infringements of rights to
privacy – as with
the use of a telephone tap or some other form of
listening device – and could potentially be subject to
constitutional challenge.
The section explicitly addresses that
situation and provides that such actions are permissible. It also
recognises that undercover
operations may have elements of a trap and
hence treats the two together. The present case is a classic instance
of an undercover
operation that also involves the use of a trap.
[23] The section lays down two approaches to the
admissibility of evidence obtained as a result of the use of a trap.
Evidence is
automatically admissible if the conduct of the person
concerned goes no further than providing an opportunity to commit the
offence.
If the conduct goes beyond that the court must enquire into
the methods by which the evidence was obtained and the impact that
its admission would have on the fairness of the trial and the
administration of justice in order to determine whether it should
be
admitted.
[24] It must be stressed
that the fact that the undercover operation or trap goes beyond
providing the accused person with an opportunity
to commit the crime
does not render that conduct improper or imply that some taint
attaches to the evidence obtained thereby. All
that it does is create
the necessity for the trial court to proceed to the enquiry mentioned
in the previous paragraph. I stress
this because there was a
misconception in this regard at the trial. At various places in the
cross-examination of Terblanche it
was put to him that the section
imposes constraints upon what may be done pursuant to a trap and this
suggestion is repeated before
us in the heads of argument for Kotzè.
In summarising the argument in his practice note counsel said: ‘Die
getuienis van
die lokvink behoort as ontoelaatbaar gereël te
word aangesien die optrede van die lokvink verder gegaan het as die
blote skepping
van ʼn geleentheid om ʼn misdryf te pleeg.’
13
This is a misconception as to the effect of s 252A(1) and it is
as well therefore to lay it to rest. Section 252A(1)
does not
purport to prescribe the manner in which undercover operations or
traps are to be conducted by the police. It merely distinguishes
on
the basis of the manner in which the trap is conducted between
instances where the evidence thereby obtained is automatically

admissible and instances where a further enquiry is called for before
the question of admissibility can be determined.
[25] Section 252A(1) prescribes a
factual enquiry into whether the conduct of the trap goes beyond
providing an opportunity to commit
an offence. Section 252A(2)
describes a number of features that may indicate to a trial court
that the undercover operation
or trap went beyond providing an
opportunity to commit an offence. It was conceded by the prosecution
and held by both the magistrate
and the court below that the conduct
of Terblanche and this undercover operation went beyond merely
providing the opportunity for
the commission of the offence.
Unfortunately the findings of both courts on this aspect were not
fully reasoned. A closer examination
of the provisions of sections
252A(1) and (2) is therefore desirable.
[26] The starting point is that, in each
case where the evidence of a trap is tendered and its admissibility
challenged, the trial
court must first determine as a question of
fact whether the conduct of the trap went beyond providing an
opportunity to commit
an offence. It does that by giving the
expression its ordinary meaning and makes its decision in the light
of the factors set out
in subsec (2). I accept that if one
simply peers at the language of s 252A(2) there appears to be an
anomaly arising
from the fact that some matters logically anterior to
the conduct of the trap itself are to be taken into account in
considering
whether it went beyond providing an opportunity to commit
an offence.
14
However there are always dangers in such a linguistic analysis
removed from the context of the section as a whole and the potential

anomaly may on closer examination be more apparent than real. Thus
the fact that the trap was set without the authority of the
Director
of Public Prosecutions or that the conditions set by the Director
were disregarded may well indicate that the trap went
beyond
providing an opportunity to commit an offence. Otherwise they will be
irrelevant. The fact that the offence in question
is of a minor
nature may indicate that the effect of the trap is to place
disproportionate temptation in the path of the accused,
so that it
went beyond providing an opportunity to commit an offence.
[27] If one examines the context of
subsec (2) it is clear that the legislature was concerned to
identify situations that would
be relevant to and bear upon the
factual enquiry postulated in subsec (1). It adopted language
taken from a leading United
States decision on entrapment
15
in formulating the factual enquiry to be made. In its judgment the
reference to the trap not going beyond affording an opportunity
to
commit an offence describes a situation where no issue exists about
the propriety of the trap or the admissibility of the evidence

derived therefrom. It appended in subsec (2) an open
16
list of factors relevant to the factual enquiry. Those factors must
be viewed holistically and weighed cumulatively as different
factors
may point towards different answers. Not all of the factors will be
relevant in every case. Sight must not be lost of the
fact that there
is only a single question to be answered, namely, whether the conduct
of the trap went beyond providing an opportunity
to commit an
offence. If, on considering all relevant factors, the conclusion is
that the conduct of the trap went beyond providing
an opportunity to
commit the offence, the enquiry moves on to s 252A(3) because,
in the legislature’s judgment, that conclusion
may cast doubt upon
the propriety of the trap and the evidence obtained thereby, so that
the situation requires further scrutiny
before the evidence is
admitted. If the factors in subsec (2) are not taken as a
checklist
17
but merely as matters that may be relevant to the proper
determination of the factual enquiry, taking into account in any
particular
case those that are relevant on the facts of that case,
they ought to pose few problems. What will be required in every case
is
a careful analysis of the evidence
18
in order to determine whether the conduct of the trap goes beyond the
limit set by the legislature.
[28] Although it is difficult to discern
the reasons for the magistrate’s decision on this primary issue
there seem to be three
matters that could underlie it. They are that
on the description of the operation a number of attempts were to be
made to trap
Kotzè (subsec (2)(e)). Secondly, in certain
respects, sometimes inadvertently and sometimes deliberately,
Terblanche
acted outside the ambit of the conditions attaching to the
approval of the undercover operation by the representatives of the
Director
of Public Prosecutions (subsec (2)(a)). Thirdly, there
can be no doubt that he was able to make the approaches that he did

to Kotzè in consequence of having formed a friendship with him
and this could have been construed as exploiting that friendship

(subsec (2)(h)). The other grounds, approached holistically,
indicate at least prima facie that Terblanche did not go
‘
beyond
providing an opportunity to commit an offence’. For example, the
DPP’s prior approval was obtained; buying of unpolished
diamonds in
the area is prevalent; there are no other techniques for the
detection of the offence; an average person would not
have succumbed
to the temptation because the parcels were small and the profit on
each very small; and, as far as timing is concerned,
the police had
more than enough reason to suspect that the appellant was involved in
illicit diamond buying to justify the laying
of a trap.
[29] There are difficulties with each of the three
factors mentioned above and hence with the magistrate’s conclusion
on this
question. As to the first, repeated attempts did not have to
be made before Kotzè succumbed, whether on the first or later

occasions. He accepted the first offer immediately and the others
equally readily. When he resisted the operation was terminated.
As to
the second, for reasons dealt with later, any non-compliance had no
effect on the conduct of the trap. As to the third, I
deal below with
Kotzè’s version of the facts and reject it. It follows that
Terblanche did not exploit his relationship
with Kotzè. In my
view therefore it would appear that the finding that Terblanche’s
conduct went further than providing
an opportunity to commit these
offences was incorrect. However, as the prosecution did not press
this issue and had conceded the
point in both courts below, I turn to
the enquiry under s 252A(3).
[30] Turning then to s 252A(3) it reads as follows:
‘
(3)(a) If a court in any criminal proceedings finds
that in the setting of a trap or the engaging in an undercover
operation the
conduct goes beyond providing an opportunity to commit
an offence, the court may refuse to allow such evidence to be
tendered or
may refuse to allow such evidence already tendered, to
stand, if the evidence was obtained in an improper or unfair manner
and
that the admission of such evidence would render the trial unfair
or would otherwise be detrimental to the administration of justice.
When considering the admissibility of the evidence the
court shall weigh up the public interest against the personal
interest
of the accused, having regard to the following factors, if
applicable:
(i) The nature and seriousness of the offence,
including:
(aa)
whether it is of such a nature and of such an extent that the
security of the State, the safety of the public, the maintenance
of
public order or the national economy is seriously threatened thereby;
(bb)
whether, in the absence of the use of a trap or an undercover
operation, it would be difficult to detect, investigate, uncover
or
prevent its commission;
(cc)
whether it is so frequently committed that special measures are
required to detect, investigate or uncover it or to prevent
its
commission; or
(dd)
whether it is so indecent or serious that the setting of a trap or
the engaging of an undercover operation was justified;
(ii) the extent of the effect of the trap or undercover
operation upon the interests of the accused, if regard is had to:
(aa)
the deliberate disregard, if at all, of the accused’s rights or any
applicable legal and statutory requirements;
(bb)
the facility, or otherwise, with which such requirements could have
been complied with, having regard to the circumstances
in which the
offence was committed; or
(cc) the prejudice to the accused resulting from any
improper or unfair conduct;
(iii) the nature and seriousness of any infringement of
any fundamental right contained in the Constitution;
(iv) whether in the setting of a trap or the engagement
of an undercover operation the means used was proportional to the
seriousness
of the offence; and
(v) any other factor which in the opinion of the court
ought to be taken into account.’
[31] Subsection (3)(a) establishes two
criteria for determining the admissibility of evidence obtained
through the use of a
trap or undercover agent. They are, firstly,
whether the evidence was obtained in an improper or unfair manner
and, secondly, whether
its admission would render the trial unfair or
would otherwise be detrimental to the interests of justice. As they
are joined conjunctively
it appears at first sight that both must be
answered in the affirmative if the evidence is to be excluded, but I
reserve any final
decision on that question as there are arguments
pointing in the opposite direction and we have not had the benefit of
full argument
on it. The language of the section suggests that such
exclusion is discretionary (‘the court may refuse to allow such
evidence
to be tendered or may refuse to allow such evidence already
tendered to stand…’) but insofar as there is a discretion it is
a
narrow one. The power of the court to exclude the evidence where the
relevant circumstances are established will ordinarily be
coupled
with a duty to exclude it.
19
This in turn has implications for the powers of this court on appeal
but it is unnecessary to explore these.
[32] Subsection (3)(b) sets out the
factors relevant to the exercise of the court’s power to exclude
the evidence. Again
this is not a closed list as the court may take
into account any factor that in its opinion ought to be taken into
account in that
regard. In this case Kotzè’s counsel
confined himself to the following matters. He accepted that the
nature of the offence
and its seriousness is of such a nature that it
is difficult to catch perpetrators without the use of traps.
20
He focussed his attack on the nature of the approaches made to Kotzè
as well as the use – or abuse as counsel would have
it – of the
relationship Terblanche had formed with Kotzè. He also argued
that it appeared that certain affidavits were
back-dated and
characterised Terblanche as an unreliable and untrustworthy witness
with a poor memory who adopted improper and
unconventional methods in
going about his task. Lastly reliance was placed on the failure to
observe strictly the conditions attached
by the Director of Public
Prosecutions to the authority to pursue the undercover operation and
particularly the fact that the audio
and video recordings of
encounters between Kotzè and Terblanche were incomplete in the
sense that not every encounter between
Terblanche and Kotzè
was recorded and deficient in that large parts of the sound
recordings were inaudible.
[33] In assessing these submissions the necessary
starting point is the evidence of Kotzè in regard to the
circumstances
in which the transactions came about and his motivation
for buying the diamonds. The magistrate disbelieved his evidence in
this
regard as did the court below and as do I. As counsel accepted,
there is not a shred of objective evidence in the material captured

on tape and video recordings that supports the notion that any of
these transactions came about as a result of a plea by Terblanche

that he had fallen upon hard times. Nor is there any evidence that
Kotzè resisted blandishments from the side of Terblanche
but
that his resistance was overcome by such blandishments or pleas of
financial hardship. There is nothing that indicates that
Kotzè
was anything other than a willing participant in the transactions.
Indeed the recordings, both audio and video, reflect
that this was
the case. They show a man who was at ease with his surroundings and
with what he was engaged in. The tone of conversation
was always
friendly and jovial and the moment they turned to discussions of the
business at hand Kotzè would drop his voice
and conduct
proceedings in a whisper as though he was aware of the risk that the
discussions might be recorded. Although he claimed
that in relation
to the fourth transaction he had been brought to the Terblanche house
by a gross misrepresentation, the videos
give this the lie. If
anything he is the dominant figure in the transactions in accordance
with the picture one derives from the
background sketched in
paragraph [5] of this judgment.
[34] All
this fell to be taken with Kotzè’s references to the
possibility that Terblanche might try and trap him or arrest
him and
his discreet enquiries of Mrs Terblanche whether her husband was
still a policeman. These indicate someone who was well
aware that he
was engaged in unlawful conduct and was taking precautionary measures
against the possibility that this might be
a trap. Added to this is
his denial of the transactions when confronted by Terblanche at the
time of his arrest; his dishonest
evidence at a bail hearing that the
amounts of R26 000 and R17000 were loans and his unwillingness to
disclose what happened to
the diamonds he bought from Terblanche.
Cumulatively it means that his evidence was rightly rejected and his
counsel made no attempt
to reverse that conclusion. He did however
seek to contend that we should nonetheless accept Kotzè’s
version of what transpired
prior to the first transaction, but that
evidence is of a piece with the evidence that was rejected and cannot
be separated from
it. It too falls to be rejected.
[35] The
rejection of Kotzè’s evidence is destructive of the
contention that the evidence was obtained unfairly by virtue
of the
methods adopted by Terblanche and is likewise destructive of the
submission that its admission rendered the trial unfair
or was
detrimental to the administration of justice. That left counsel to
concentrate his submissions on areas of weakness in Terblanche’s

evidence such as the absence of a note of the offer to cut and polish
a diamond, the backdating of certain statements and certain

contradictions that were identified in great detail in the heads of
argument but do not require repetition here. None of these
affect the
conclusion that Kotzè was a willing participant in the
admitted purchase of diamonds from Terblanche. Nor does
any of it
bear upon the propriety or fairness of the methods adopted to obtain
the evidence of those transactions, or the fairness
of the trial.
[36] That left, as the last point in the
argument, the proposition that because Terblanche and other members
of the team conducting
this undercover operation departed in certain
respects from the conditions attaching to the Director of Public
Prosecutions’
authorisation for Operation Solitaire the evidence
obtained as a result of Terblanche’s actions should be excluded.
Counsel rightly
did not pursue a contention advanced in the heads of
argument that these departures disregarded applicable legal and
statutory
requirements.
21
Part of this argument, based as it is upon the proposition that
Terblanche induced Kotzè to enter into the transactions
by
playing upon the latter’s tender emotions, fails with the rejection
of Kotzè’s evidence in this regard. As to the
balance, the
principal criticism related to the fact that Terblanche had not
sought to record all of his encounters and conversations
with Kotzè,
starting from their first meeting when the Terblanches were seeking
accommodation, but only those where Kotzè
was purchasing
diamonds. I am not sure that it was the intention of the Director of
Public Prosecutions’ conditions that every
encounter should be
recorded inasmuch as it was manifestly impractical to expect this of
Terblanche during an undercover operation
in which he was to spend
nine months establishing his new persona and two years engaged in
undercover activities whilst maintaining
the public image of a
pensioner. However, even if that was the intention there is nothing
to show that any failure in this regard
was, as contended by counsel,
detrimental to the interests of justice or rendered the trial unfair.
The point is accordingly rejected
as is the entire challenge to the
admissibility of the evidence of Terblanche.
[37] My
conclusion is that the evidence of Terblanche was correctly admitted.
In the result Kotzè’s appeal against his
conviction on the
four counts under s 20 of the Diamonds Act is dismissed.
M J D WALLIS
ACTING JUDGE OF APPEAL
APPEARANCES
FOR KOTZÈ
: F J MURRAY
Instructed
by Schreuders, Springbok.
Symington & De Kok, Bloemfontein
FOR THE RESPONDENT: L J BADENHORST
Instructed by Director Public Prosecutions,
Cape Town
Director Public Prosecutions Bloemfontein
1
South African Law Commission Report, Project 84,
The Application
of the Trapping System
.
2
‘I am a smuggler.’
3
‘Hy sal ook vir my ʼn diamant slyp.’
4
‘Hy het my gevra of ek iets gebring het om te verkoop.’
5
‘Hy het my gevra of ek al weer ongeslypte diamante gekry het’
6
Terblanche’s more prosaic explanation was that he had liked the
way in which the minister at the NGK preached and had decided
to
attend worship there at the invitation of the minister. He also said
that the Afrikaanse Protestante Church was only a home
church where
worship was conducted by an elder and that when it was pointed out
to him as the place that flew the old national
flag he decided that
it involved itself in politics. None of this evidence was challenged
and Kotzè’s claim was not
put to either him or his wife.
7
This contrasted with the impression of Dr Coetzer who said that
whilst Kotzè was friendly he always had the impression
that
his approach was coloured by an attitude of ‘what’s in it for
me’.
8
‘Finansieël dit nie breed het nie.’
9
‘This whole way in which you went to work with the accused, the
abuse you made of the church, his friendship, all the things
I have
put to you, all show clearly that you did not confine yourself to
creating an opportunity to commit the offence, but you
wanted to
trap him and you made sure that you tempted him sufficiently that a
man with his type of personality would fall for
this type of sorry
figure who wanted to sell a few diamonds?’ (My translation.)
10
S v Zuma & others
[1995] ZACC 1
;
1995 (2) SA 642
(CC) para 25. The
cases in which the Constitutional Court has reaffirmed the principle
are collected in
S v Manamela & another (Director-General of
Justice intervening)
2000 (3) SA 1
(CC) fn 30.
11
That is also the approach in Australia,
Ridgeway v R
(1995)
184 CLR 19
; the United Kingdom,
R v Looseley
[2001] UKHL 53
;
[2001] 4 All ER
897
(HL) and Singapore,
Mohamed Emran Bin Mohamed Ali v Public
Prosecutor [2009] 2 LRC 484.
12
E Du Toit, F J De Jager, A Paizes, A St Q Skeen and S van der
Merwe
,
Commentary on the
Criminal Procedure Act
(Revision
service 42, 2009) para 1, p 24-131.
13
‘The evidence of the trap ought to be ruled inadmissible because
the conduct of the trap went further than merely providing
an
opportunity to commit an offence.’ (My translation)
14
The anomaly is dealt with in Du Toit
et al,
24-134 to 24-135
and has been mentioned in some judgments.
S
v Odugo
2001 (1) SACR 560
(W) paras 32–34;
S v Makhanya &
another
2002 (3) SA 201
(N) at 206H-I;
S v Reeding &
another
[2005] ZAWCHC 13
;
2005 (2) SACR 631
(C) at 637i-j.
15
Sorrels v United States
[1932] USSC 174
;
(1932), 287 US 435.
Other United
States sources use the same language as appears from the Law
Commission’s report. The adoption of that language
does not
indicate an adoption of meaning.
16
‘Open’ because it ends with sub-para (n), which includes ‘any
other factor which in the opinion of the court has a bearing
on the
question’.
17
As this Court has already said should not be the case.
S v
Hammond
[2007] ZASCA 164
; [2007] SCA 164 (RSA);
2008 (1) SACR
476
(SCA) para 26.
18
As occurred in
S v Matsabu
[2008] ZASCA 149
; [2008] SCA 149
(RSA);
2009 (1) SACR 513
(SCA) paras 16 and 17.
19
Schwartz v Schwartz
[1984] ZASCA 79
;
1984 (4) SA 467
(A) at 473H-474E.
20
That traps are necessary for this purpose was accepted over a
century ago by Innes CJ in
Myers and Misnum v R
1907 TS 760
at 762, a view reaffirmed by the Law Commission.
21
S 252A(3)(b)(ii)(aa).