Zürich v S (42/09) [2009] ZASCA 108; 2010 (1) SACR 171 (SCA) ; [2010] 1 All SA 352 (SCA) (22 September 2009)

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[2009] ZASCA 108
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Zürich v S (42/09) [2009] ZASCA 108; 2010 (1) SACR 171 (SCA) ; [2010] 1 All SA 352 (SCA) (22 September 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 42/09
HERMAN ZüRICH Appellant
and
THE STATE Respondent
Neutral citation:
Zürich
v The State
(42/09)
[2009] ZASCA 108
(22
September 2009)
Coram:
Streicher JA, Hurt
et
Bosielo AJJA
Heard:
31 August 2009
Delivered:
22 September 2009
Summary:
Criminal law –
Appeal against conviction of unlawful trade in ivory –
Admissibility of evidence obtained as a result of improper
conduct
not involving the accused.
______________________________
_______________________
ORDER
On appeal from:
Northern
Cape High Court (Williams J and Mokgohloa AJ) on appeal from the
Regional Court, Upington.
1 The appeal is dismissed.
JUDGMENT
BOSIELO AJA
(Streicher JA et
Hurt AJA concurring).
[1] The appellant, an attorney practising in Upington
was charged, together with a co-accused Jacques Andrew Esterhuizen
(Esterhuizen)
in the Regional Court, Upington on various counts
relating to the contravention of the Northern Cape Nature and
Environmental Conservation
Ordinance 19 of 1974 (the Ordinance). On
22 November 2005 the appellant was convicted on counts one and two on
the basis that he
had been an accomplice in the unlawful importation
and subsequent sale of elephant tusks by Esterhuizen to one Jaco
Oberholzer
(Oberholzer) in contravention of ss 44(1)(b)(i)
1
and 46
2
of the Ordinance.
[2] On appeal to the Northern Cape High Court, the
conviction and sentence on count 1 were set aside. The conviction on
count 2
was confirmed but the sentence was set aside and replaced
with a fine of R5 000,00 (five-thousand rand) or imprisonment for
nine
months with a further imprisonment for nine months suspended for
3 years on prescribed conditions. The appellant is appealing against

that judgment with the leave of the court below.
[3] The facts of this case are common cause. During or
about December 1998, the South African Police Services (SAPS)
launched a
special covert operation dubbed 'Operation Rhino' in
Upington. This was in direct response to reports of some widespread
criminal
activities in Upington involving unlawful dealing in uncut
diamonds and unlawful dealing in protected species. In the course of

their initial investigations, some twenty-six suspects, including the
appellant were identified.
[4] The required authority to undertake the covert
operation in terms of s 252A of the Criminal Procedure Act 51 of 1977
(the CPA)
was obtained from the office of the Director of Public
Prosecutions (DPP) in Kimberley. Jaco Oberholzer (Oberholzer), a
member
of the Gold and Diamond Unit, Bloemfontein was to be used as
the undercover agent. In order to facilitate this covert operation

Oberholzer was employed by one Nickey Celliers, also one of the
police informers involved in 'Operation Rhino', at Celliers' business

called North Western Transport in Upington. The authority thus
conferred included the interception and recording of communications

between the police, the undercover agent and the suspects.
[5] It appears that, during the period between December
1998 and January 1999, Oberholzer's credibility in the role he was
playing
began to be questioned. This posed a serious threat to the
entire covert operation. In order to save the project the police
decided
to clothe Oberholzer with more convincing credibility. They
decided to stage a bogus arrest of Oberholzer for unlawful dealing in

uncut diamonds. The necessary authority for this bogus arrest was
granted by the office of the DPP in Kimberley.
[6] Pursuant to this ploy, Oberholzer was duly arrested
on 25 February 1999 for unlawful dealing in uncut diamonds. It was
part
of the scheme that Oberholzer would contact the appellant for
legal representation. This Oberholzer did but, as the appellant had
a
prior engagement on the date set for Oberholzer's court appearance
the appellant instructed one, Mr de Beer, his professional
assistant
to attend to the bail application, which de Beer did successfully. It
was an essential part of the plot that Oberholzer
should use this
arrest to establish and maintain a relationship with the appellant.
It was in the course of the relationship which
ensued that the
appellant told Oberholzer that he knew of someone from Rietfontein
who had elephant tusks to sell. He offered to
introduce Oberholzer to
that person. In pursuance of this offer the appellant called
Oberholzer to his offices on 29 March 1999
to meet the man from
Rietfontein who turned out to be Esterhuizen (who later became
accused two). The appellant introduced Esterhuizen
to Oberholzer at
his offices. As a direct consequence of this introduction,
Esterhuizen sold and delivered two elephant tusks to
Oberholzer. In a
recorded conversation on 1 April 1999, the transcript whereof was
handed in as 'Exh K,' Oberholzer reported to
appellant that a sale
was successfully concluded for R20 500,00.
[7] In terms of
s 252A
of the
Criminal Procedure
Act 51 of 1977
any law enforcement officer, official of the State or
any other person authorised thereto for such purpose 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. The appellant conceded that the
conduct of the police in this case did not go beyond providing an
opportunity
to commit an offence. It follows that the evidence
against the appellant was not rendered inadmissible by virtue of the
fact that
it was obtained by way of a trap. Before us the appellant
accepted that to be the case.
[8] In the court below the appellant contended that the
evidence against him was rendered inadmissible by s 35(5) of the
Constitution.
The section provides:
‘
Evidence obtained in a manner that violates any right
in the Bill of Rights must be excluded if the admission of that
evidence would
render the trial unfair or would otherwise be
detrimental to the administration of justice.’
The court below held that the section did not render the
evidence against the appellant inadmissible as the admission of such
evidence
would not have rendered the trial unfair. Before us the
appellant conceded that the section did not apply as no right in the
Bill
of Rights was violated. The appellant did however submit that
the evidence against him should not have been admitted in that it
was
obtained in an improper manner in that the magistrates and the
prosecutor concerned were misled and the judicial process was
abused
by police officers in cooperation with senior officials of the
National Prosecuting Authority in order to create an opportunity
for
Oberholzer to make contact with the appellant so as to uncover the
commission of an offence.
[9] The respondent conceded that the investigative
methods employed by the police were unacceptable and that a court had
a discretion
to disallow evidence improperly obtained but submitted
that the facts relied upon by the appellant did not justify the
exclusion
of the evidence.
[10] In
S v M
2002 (2) SACR 411
(SCA) at 431g-i Heher JA said that there is no
doubt that a court at common law has a discretion to exclude evidence
improperly
obtained on the basis of ‘a proper balancing of the
competing interests so clearly identified’ in
S
v Hammer and Others
1994 (2) SACR 496
(C). In
that case Farlam J said at 499a-e:
‘
The following factors may be useful in deciding
whether to exercise the discretion: (a) society’s right to insist
that those who
enforce the law themselves respect it, so that a
citizen’s precious right to immunity from arbitrary and unlawful
intrusion into
the daily affairs of private life may remain
unimpaired; (b) whether the unlawful act was a mistaken act and
whether in the case
of mistake, the cogency of evidence is affected;
(c) the ease with which the law might have been complied with in
procuring the
evidence in question (a deliberate “cutting of
corners” would tend towards the inadmissibility of the evidence
illegally obtained);
(d) the nature of the offence charged and the
policy decision behind the enactment of the offence are also
considerations; (e)
unfairness to the accused should not be the only
basis for the exercise of the discretion; (f) whether the
administration of justice
would be brought into disrepute if the
evidence was admitted; (g) there should be no presumption in favour
of or against the reception
of the evidence, the question of an onus
should not be introduced; (h) it should not be a direct intention to
discipline the law
enforcement officials; (i) an untrammelled search
for the truth should be balanced by discretionary measures, for in
the words
of Knight Bruce VC, “Truth, like other good things, may
be loved unwisely – it may be pursued too keenly – may cost too
much”.’
[11] In the present case the police or prosecuting
authorities did not perform an unlawful act as against the appellant.
Insofar
as their conduct was improper it was improper as against the
court, the magistrates and the prosecutors involved. Counsel for the

appellant correctly conceded that the appellant’s rights had not
been violated by such improper conduct. In so far as the appellant

was concerned, a misrepresentation was made to him that Oberholzer
had been dealing in uncut diamonds and that misrepresentation

eventually led to him introducing Oberholzer to Esterhuizen as a
person who had elephant tusks for sale. Traps, by their very nature

always involve misrepresentations specifically intended to deceive
the suspect. In terms of s 252A the uncovering of an offence
by
way of such a misrepresentation is not improper and if it goes no
further than to create an opportunity to commit an offence
does not
affect the admissibility of the evidence obtained as a result. Save
for the limited purpose of persuading the appellant
that Oberholzer
might be inclined to unlawful acts, the misleading of the court, the
magistrates and the prosecutors had no effect
on the trial. The
appellant can therefore not complain that he did not have a fair
trial. In these circumstances the admission
of the evidence could not
have brought the administration of justice into disrepute. To the
contrary the exclusion of the evidence
could have done so. The
appellant is an attorney who was suspected of criminal activities
which the police had great difficulty
in exposing. In these
circumstances the evidence against the appellant obtained as
aforesaid was in my view correctly admitted
against the appellant.
[12] The appellant did not advance any other basis for
upholding the appeal. The appeal is therefore dismissed.
______________________
L O BOSIELO
ACTING JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: F VAN ZYL SC
Instructed by
ENGELSMAN, MAGABANE INC KIMBERLEY
LOVIUS BLOCK ATTORNEYS BLOEMFONTEIN
FOR RESPONDENT: J J CLOETE
Instructed by
NATIONAL PROSECUTION AUTHORITY KIMBERLEY
DIRECTOR PUBLIC PROSECUTIONS BLOEMFONTEIN
1
'
s 44(1)(b)(i) Subject to the provisions of this ordinance, no person
shall without a permit authorising him to do so-
(a) . . . .
(b)(i) import into the Province from any place outside the Republic
the carcass of any wild animal, or . . .'
2
's 46 No carcass of any wild animal shall be sold
by any person other than-
(a) the owner of any land on which the animal concerned was hunted
in accordance with the provisions of this ordinance;
(b) a market master at a public or municipal market; or
(c) a person authorised by a permit issued under this ordinance or a
licence issued under the Licences Ordinance, 1981(Ordinance
17 of
1981), to sell such carcass.'