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[2019] ZAFSHC 108
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Chaba and Others v S (A190/2017) [2019] ZAFSHC 108; [2019] 3 All SA 103 (FB) (22 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges; YES/NO
Circulate
to Magistrates: YES/NO
Appeal
number: A190/2017
In
the Appeal between:
L
CHABA & 21
OTHERS
Appellant
and
THE
STATE
Respondent
CORAM:
RAMPA!, ADJP, MATHEBULA et LOUBSER, JJ
HEARD
ON:
4 FEBRUARY 2019
DELIVERED:
22 MARCH 2019
Rampai.
ADJP
[1]
These are appeal proceedings. The appellants were tried in the
Virginia Circuit Court where they were found guilty of various
charges
and sentenced to various terms of imprisonment. They were all
aggrieved by all the verdicts and all the sentences.
[2]
An incident took place at Henneman on 10 April 2014. The
underground clean-up operation was launched by the mine security
agency.
The operation endured until the next day, 11 April 2014. The
actual scene of the incident was at number 5 shaft of Masimong Gold
Mine. The underlying purpose of the underground security operation
was to flush suspected illegal miners out.
[3]
The two-day shaft clean-up operation yielded no immediate
arrest. Between 16 April 2014 and 14 July 2014 almost all the accused
were arrested on the surface premises of the mine. There were only
two exceptions. In one instance one of the appellants was arrested
underground in the shaft. In the other instance, one of·the
appellants was arrested completely off the mine premises.
[4]
The indictment contains a total of 840 charges. The total
number of charges is composed of the following types of offences:
4.1
managing a criminal enterprise, count 1;
4.2
participating in a criminal enterprise, count 2;
4.3
theft of gold bearing material, count 3-209: 3 groups;
4.4
possession or disposal of ore, count 210-415;
4.5
transporting of ore, count 419-621;
4.6
money-laundering, count 622 - 835: 2 incidents;
4.7
possession of explosives, count 836;
4.8
attempted murder, count 837 - 838: 2 incidents;
4.9
illegal immigration, count 839;
4.10
trespassing, count 840.
[5]
Accused 1 was charged with the following: Count 1 - 840.
[6]
Accused 2 was charged with the following: Count 1 - 840.
[7]
Accused 3 was charged with the following: Count 2 - 840.
[8]
Accused 4 was charged with the following: Count 2 - 840.
[9]
Accused 5 was charged with the following: Count 2 - 840 excluding
count 839.
[10]
Accused 6 was charged with the following: Count 2 - 840 excluding
count 839.
[11]
Accused 7 was charged with the following: Count 2 - 840.
[12]
Accused 8 was charged with the following: Count 2 - 840.
[13]
Accused 9 was charged with the following:
Count 2 - 840.
[14]
Accused 10 was charged with the following: Count 2 - 840
excluding count 839.
[15]
Accused 11 was charged with the following: Count 2 - 840
excluding count 839.
[16]
Accused 12 was charged with the following: Count 2 - 840
excluding count 839.
[17]
Accused 13 was charged with the following: Count 2 - 840
excluding count 839.
[18]
Accused 14 was charged with the following:
Count
840.
[19]
Accused 15 was charged with the following:
Count 2 - 840.
[20]
Accused 16 was charged with the following: Count 2 - 840.
[21]
Accused 17 was charged with the following: Count 2 - 840.
[22]
Accused 18 was charged with the following: Count 2 - 840.
[23]
Accused 19 was charged with the following: Count 2 - 840
excluding count 839.
[24]
Accused 20 was charged with the following: Count 2 - 840.
[25]
Accused 21 was charged with the following: Count 2 - 840.
[26]
Accused 22 was charged with the following: Count 2 - 840
excluding count 839.
[27]
The prosecution dropped the following charges in the second
group of theft offences:
count 3, 5, 6, 7, 65, 66, 67,
68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84,
85, 86 and 136.
[28]
To start with,
the conviction component of the appeal
requires appellate reconsideration. The appellants were tried in
the Virginia Circuit Court where they all pleaded not guilty to
all
the charges. Each of them disputed all the elements of each and every
charge. None of them disclosed in terms of section 115
Criminal
Procedure Act 51/1977 the basis of his or her plea. All of them were
legally represented.
[29]
The prosecution called nineteen persons who testified for the
state. Among others, the prosecution witnesses included the
following:
29.1 Mr Johan Diedericks Ackerman;
29.2 Mr Nicolaas Johannes Oosthuizen;
29.3 Mr Daniel Johannes Pretorius;
29.4 Brig Johannes Frederick Hattingh;
29.5 Ms Gerda Janse van Rensburg;
29.6 Ms Nobuhle Mphezi;
29.7 Ms Riaan Verster;
29.8 Cst Madiego Mokhooe;
29.9 Mr Ruan Binneman;
29.10 W/0 Harry Lepile Shuping.
[30]
The version(s) of the defence was narrated by 22 persons. All
of them were the accused persons themselves. None of them called any
witnesses.
[31]
The court a
quo
handed down the verdict on 20 February
2017. The appellants were all acquitted in respect of:
·
Counts: 4, 8-64, 87-135, 137-208: theft of
unwrought gold;
·
Count 836: possession of explosives;
·
Counts 837 and 838: attempted murder.
They
were, however, convicted as indicted in respect of the rest of the
charges which were individually applicable to them.
[32]
The appellants were finally sentenced on 14 March 2017. The
sentences
varied
from the shortest period of imprisonment for
3 years to the longest term of imprisonment for 20 years. I shall
revert
to the sentence component of the appeal in due course.
[33]
Aggrieved by their respective conviction and sentence, all the
appellants applied on 14 March 2017 and 15 March 2017 for
leave
to
appeal.
·
In respect of accused 1 to accused 7:
The grounds of their
appeal are set out in Vol 14 - see p3027 - 3031;
·
In respect of accused 8 to accused 12:
The grounds of their
appeal are set out in Vol 14 - see p3019- 3027;
· In respect of accused 13 to
accused 22:
The grounds of their appeal are set
out in Vol 14 - see p3015 - 3018.
On
15 March 2017 the court
a quo
granted
a blanket
leave
to
appeal to all of them against each and
every
conviction and sentence
[35]
As regards the convictions, the common ground of the appeal
may be condensed as follows:
35.1
The court
a quo
erred by rejecting the possibly true
versions of the appellants;
35.2
The court
a quo
erred by accepting the reasonably
doubtful version of the prosecution;
35.3
The court a
quo
erred by drawing questionable
inferences from circumstantial evidence without proven objective
facts to justify such inferences;
35.4
The court a
quo
erred by finding that the prosecution
had proved the identity of the appellants as illegal miners;
35.5
The court a
quo
erred by finding that the prosecution
had proved the crimes levelled against them beyond reasonable doubt.
[35]
I deem it necessary to make a summary of certain undisputed facts.
The summary embraces certain facts which, though denied,
could
nonetheless not be seriously disputed. Those facts were the
following:
· Harmony Gold Mine (Pty)
Limited, trading as Masimong Gold Mine, was lawfully licensed to mine
gold in the district of Hennenman;
· The number 5 shaft of the
mine consisted of a number of levels where actual mining operations
took place;
· Some mining operations were
lawful but others were unlawful;
· The legal miners were issued
with identity cards which they were required to use for the purposes
of clocking in whenever
they went underground;
· They used the same identity
cards for the purpose of clocking out when they returned to the
surface;
· From the surface down to the
underground levels, they were transported down the shaft by means of
a cage elevator;
· No-one without an identity
clocking card was supposed to be allowed to go down the shaft;
· Notwithstanding the
prohibition, illegal miners did find their way down the shaft because
it was an open secret that breaches
of the clocking systems were
committed now and then;
· It was a known fact, that at
levels 1750 and 1810, illegal mining had been going on since August
2012;
· During the course of the
operation clean-up on 10-11 April 2015 makeshift gold processing
plants c::onstn1cted underground
were discovered;
· Certain underground site at
level 1810 was specifically designated and utilized as a habitat spot
by illegal miners;
· There at the habitat,
makeshift beds, letters, books, name lists, house floor plans, and an
assortment of documents were
found;
· The appellants, save for one,
were arrested at shaft 5 between 15 April 2015 and 14 July 2015;
· The only woman in the case,
accused 22, and accused 1 had an intimate relationship;
· Mr Nkosoxolo Makawula,
accused 6, and Ms Bongeka Makawula, accused 22, are siblings;
· None of the appellants was
gainfully employed at all times material to this case;
· The conveyancer, Ms Gerda
Janse van Rensburg, was instructed to see to the registration of a
transfer of residential property
purchased by accused 22;
· The purchase was a cash
transaction;
· The majority of the
appellants are foreign nationals from either Zimbabwe or Mozambique;
· None of the appellants was
caught red-handed either mining or processing ore or sleeping
underground;
· The appellants, during their
incarceration, complained
to
the Director: Public Prosecution,
Free State Province about the conditions of the incarceration.
[36]
In the first place
, I deal with the issue as to whether
the alleged offences were actually committed or not.
[37]
Mr. Nel, counsel for the appellants, argued that there was no
direct evidence presented in the court a
quo
which proved the
alleged illegal mining by way of blasting rock with explosives in
order to remove ore from rocks; that there was
no direct evidence
which proved physical possession of the missing ore by anyone and
that there was no direct evidence which proved
actual transportation
of ore from the actual site where it was extracted from any rock to
any makeshift plant illegally constructed
underground where it was
allegedly processed.
[38]
In developing that argument further, counsel sceptically
suggested that the evidence of Oosthuizen, to the effect that illegal
miners,
whoever they had been, had used rock drills, hammers and
chisels to extract a massive 1211 tons of ore from the rocks, was
highly
improbable. Counsel submitted that there was a reasonable
doubt, in connection with the alleged theft offences in particular,
as
to whether the element of appropriation had been established.
[39]
The submission was fuelled by Oosthuizen's
admission that he could find no tangible proof that the missing ore
had in fact been
removed from Masimong Gold Mine. In view of all
these, counsel submitted that the respondent failed to prove beyond
reasonable
doubt that the alleged illegal mining offences were indeed
committed.
[40]
Mr De Nysschen, counsel for respondent, disagreed. He argued
that upon objective assessment of the entire evidence, it became
clear
that physical possession, transportation and dealing in gold
had been proven beyond all doubt. Counsel submitted that it was never
the defence of the appellants, at any stage during the course of
their entire trial, that the crimes listed in the indictment had
not
been actually committed.
[41]
The evidence of Ackerman was that ore processing or refinery
plants were found in the shaft a few years before the operation
clean-up;
that such plants were skilfully constructed; that such
plants were destroyed in 2012 because they were all illegal; that
plant
2 was subsequently and recently constructed at level 1810; that
it was a relatively new illegal plant; that it was not known
precisely
when such plant was actually constructed.
[42]
The evidence of Oosthuizen also concerned some of the exhibits
found underground during the course of operation clean-up. Among them
were letters addressed to certain individuals suspected to be illegal
miners; letters written by certain individuals suspected
to be
illegal miners; documents such as gold transaction notes such as "exi
o", photograph downloaded from a camera of
one of the suspects -
see "exi I", and loose photographs found depicting
underground images of some of the suspects -
see "exi x”.
The
evidence of Binneman supported that of Ackerman and Oosthuizen.
[43]
The court
a quo
assessed the evidence of those
prosecution witnesses. The trial judge did not assess such evidence
in isolation. On the contrary,
her ladyship assessed such evidence,
together with the evidence of some of the appellants themselves. She
took into account their
evidence during their trial proceedings in
the high court as well as the evidence of some of them during their
bail proceedings
in the district magistrate court.
The
evidence pertaining to the dated documents, the dated letters to some
of the suspects, the dated letters from some of the suspects,
the
photographs;. in the camera of one of the suspects, the loose
photographs of some of the suspects found underground, the evidence
of the same appellants during the trial proceedings and the evidence
of some of the appellants during their bail proceedings were
some of
the vital pieces of the whole mosaic of the crucial evidence that
gave the court
a quo
an
idea of the timeline relevant to the commission of the offences.
[44]
The contention of the appellants that there was no evidence to
prove the time during which the offences were committed, if any
offence
was indeed committed, was misplaced. The respondent was not
required by law to prove the specific time during which each of the
appellants actually mined the ore at a specific level of the shaft.
It was also not essential for the respondent to prove a specific
time
at which each member of the group arrived on the crime scene
underground.
[45]
The statutory offence created is participation in a
racketeering criminal activity. The essential ingredient being
conspiracy to
commit an organized criminal activity or to participate
in an unlawful enterprise. Participative racketeering normally
entails
an agreement, express or implicit, to commit an organized
unlawful act. Once participative agreement has been concluded, an
offence
of organized crime is complete. It has been committed. The
racketeers can be prosecuted even though no actual criminal activity
has been performed. They can be prosecuted even though they are still
on the surface before they actually descend to the actual
scene
underground to perform the unlawful mining activity. The actual
performance is not a matter of cardinal importance but the
preceding
agreement is.
[46]
In this instance, there was no evidence of an explicit
agreement to participate in the commission of an organized crime of
unlawful
mining. However, the undisputed evidence showed that gold
refining plants were discovered underground. All of them were
unlawfully
constructed. They would not have been so constructed
unless actual mining had taken place and ore actually extracted from
the rocks
and made available to be processed at the unlawful refinery
plants constructed down in the shaft.
[47]
Needless to say that all these physical
activities or operations underground were practical manifestations of
an implicit agreement
possibly concluded somewhere on surface. By its
very nature, mining is a laborious and elaborative venture. The
collaborative association
of those involved was evidenced by the
enormous quantity of the ore extracted, the extent of the area
chiselled and drilled, the
canvas bags on the scene as captured by
the video, the common habitat shared as well as the documented name
list of miners. Precisely
when the participants went down and when
they commenced with the illegal mining operation is irrelevant. What
is relevant is the
solid inference that such activities would have
stemmed out of a prior mutual agreement to participate in the
carrying out of a
prohibited criminal enterprise. They may even have
gone down at different times. Some might have even joined the
enterprise long
after its formation by jumping onto the band-wagon on
the way to join the founding members of an already existing
racketeering
association.
[48]
Those who joined the association later, and thereby aligned
themselves with the central purpose of those who formed it earlier,
are equally guilty even if they never performed any actual acts of
execution on the illegal mining scene underground. For instance,
those on the surface whose function it was to provide those
underground with food to sustain them down there, implicitly
associated
themselves with the objective of the criminal enterprise.
They thereby became instrumental in the process of furthering such
objective.
[49]
The question of physical shipment of ore from the point of
mining to the point of processing was addressed or traversed in the
evidence
given by Ackerman. The witness also testified that canvas
bags were used to remove the ore from the one point to another. Such
acts of physical shifting strengthened the contention that illegal
mining activities were indeed committed. The evidence of Ackerman
aside, it has to be stressed that, at the trial, it was never
pertinently contended, by any of the appellants, that illegal mining
did not take place. Such stance was logical given their similar
defence. The gist of their common defence was simply that they
were
not involved in the alleged illegal mining activities because they
were never on the crime scene underground. As can be noted,
their
defence had all the hallmarks of an alibi defence.
[50]
In the light of all these, the contentions of the appellants
that there was doubt whether any theft was committed holds no water.
For the reasons enumerated above, I am inclined to determine the
issue in favour of the respondent. The contention was based on
one
little piece of evidence given by Oosthuizen. The salient principle
of the law of evidence is that evidence has to be holistically
and
not compartmentally evaluated and considered. Taken and considered as
a whole, the entire evidence proves, beyond reasonable
doubt, that
levels 1750 and 1810 were inhabited and that whosoever had so
colonized the shaft was motivated by one and only one
purpose. And
that singular purpose was to illegally mine gold in order to steal
and sell it for profit. Therefore, the appeal cannot
succeed on the
ground that there was no evidence of criminal mining activities.
[51]
In the second place,
I deal with the contention that
the respondent had failed to prove that any act of unlawful
appropriation of gold from the mine
was committed. The contention
stems from the evidence of Ackerman. Among others, the witness
testified that although ore to the
tune of R125,0 million was
physically extracted from the gold bearing rocks, the value of the
ore actually discovered at the makeshift
refinery plants was merely
R41,0 million. By implication, the actual value of the missing ore
was, therefore, R84,0 million. The
witness testified that such
unaccounted for ore might well still be somewhere on the mine
property.
[52]
On the basis of the above evidence, Mr Nel submitted, on
behalf of the appellants, that if the ore was still somewhere on the
mine,
it cannot be .said that the mine, as the complainant, has lost
control over such ore. At best for the respondent, the evidence
established the offence of attempted theft. So submitted counsel.
[53]
The witness, Ackerman, went further to say that the mass of
the ore with the monetary value of R41,0 million was 1211 tons; that
such quantity of ore was recovered from 4 of the 16 illegally
constructed ore processing plants; that when the operation was
conducted,
illegal miners, whosoever they were, had already mined
such quantity of ore; that the ore had already been carried away from
the
zone where it was extracted from the rock; that the ore had
already been heaped at the zone where it was about to be processed
and that it was retrieved by an enterprise known as Rappa Holdings
(Pty) Ltd.
[54]
The contention of the appellants failed to impress me. Nothing
significant turns on the contention that the 1211 tons had not been
shipped out of the mine. The crux of the matter is that 1211 tons of
ore had already been actually extracted from the rocks. By
itself,
the physical extraction completely satisfies the element of
appropriation necessarily required to prove the offence of
theft. The
legal position is analogous to the case of theft from a self-service
supermarket. A shoplifter does not first have to
physically walk
beyond the exit of the supermarket before he can be successfully
prosecuted and convicted for theft. See
S v M
1982 (1) SA 309
(O).
A customer in a jewellery shop who puts a diamond ring in his
underpants manifests a clear criminal intent to steal. His conduct
justifies his immediate arrest and successful prosecution He cannot
be heard to say he did not steal because the ring was still
in the
shop.
[55]
The mass of ore with the monetary value of R84,0m is 2481
tons. Such quantity of ore was representative of the ore mined but
never
recovered anywhere underground or on surface. By the time the
operation was launched, it had already been mined, extracted and
shipped away from the mining zone. The witness speculated that such
quantity of ore might still be on the mine premises.
[56]
The hard fact of the matter is that the exact whereabouts of
2481 tons of ore are unknown. Is such ore still underground? It is
very unlikely. The mining of such a massive quantity of ore must have
required a great deal of time, energy and resources. Those
who had
invested so much efforts to mine it, would not have unwisely stored
it underground. They would have appreciated the possibility
that it
could be stolen. I do not think they would have been that
unbusiness-like. The evidence showed that there were numerous
processing plants underground. It seems improbable that the
perpetrators would have extracted the ore only to conceal it
somewhere
underground instead of immediately shipping it to the
processing plants to be refined and immediately shipped out for sale
to their
customers outside.
[57]
There were letters, written notes dubbed gold transaction
notes and other miscellaneous documents referring to money paid or
owed
which were discovered underground. Obviously a transaction note
about money owed suggested that gold had already been delivered
to
someone who still had to pay for it. All these exhibits strongly
militated against any argument that the missing ore might still
be
hidden somewhere on the mine underground or on the surface. The
evidence is overwhelming that the unrecovered ore was shipped
off up
to the surface and sold. That is theft, plain and simple. The mining
company, as the owner, has virtually lost control.
The permanence of
such deprivation cannot be seriously questioned.
[58]
The decision in
S v Tarr
1996 (2) SACR 97
(T)
does not
assist the appellant. In that case the court was concerned with
control of a "smelting house". In the present
case the
court a
quo
was concerned with the control of a mineshaft with
a number of levels. There is a huge difference between the two. A
mineshaft is
to a smelting house what a mountain is to an ant heap.
According to the undeniable evidence, shaft 5 has a number of levels.
It
may be as deep as 4 km or so. It may be connected to one or more
other shafts. The decision has also received the attention of the
Constitutional Court. See
S v Tarr
2019 (1) BCLR 151
(CC)
[59]
Such a deep hole with a vast ramification of long tunnels
cannot be as well controlled as a tiny smelting house. The mere
menace
of illegal mining is indicative of fragile control measures.
That the particular mineshaft lacked effective control measures is
also borne out by the fact that it was inhabited contrary to safety
regulations. The evidence further shows that the clocking system
designed to enhance efficient access control is sometimes manipulated
to give access to unauthorized persons. Such deliberate breaches
of
the system weakened the control measures.
[60]
In the light at all the above considerations, I am not persuaded that
the perpetrators, or illegal miners, carried out the
activities at
the mine so well controlled that they could not have removed any gold
from there. On the contrary, the evidence indicated
that the access
control measures left much to be desired. Therefore, the submission
that the missing bulk of the ore was still
somewhere on the mine was
unpersuasive.
[61]
Consider this: if the perpetrators had known that there was no
way that they would be able to get their stolen golden loot out of
the mine to sell it somewhere:
· They would not have taken all
the trouble of going down the shaft in the first place;
· They would not have taken the
trouble of establishing a human habitat down there;
· They would not have stayed
there for such long periods of time;
· They would not have imported
mining tools such as chisels, canvas bags, explosives and hammers;
· They would not have foolishly
expended time, labour and money;
· They would not have paid
"workers" in other words
bona fide
employees of the
mine who collaborated with them to have gold shipped out of the mine;
· Would they, after bringing it
up to the surface, have stockpiled or stashed it on the mine property
knowing all too well
that the security control measures were so tight
that permanently removing it from the mine would be almost an
impossible task?
[62]
Section 13 Precious Metals Act 37/2005 provides:
"Transportation
and conveyance
of
precious
metals
A person may not
transport or in any manner convey any semi-fabricated or unwrought
precious metal outside the boundaries of any
mine, works or other
property or place where such metal
is
mined,
refined or worked with, unless he or she is in possession of the
prescribed documentation."
[63]
Indeed the respondent produced no evidence showing that any suspect
in this case was arrested outside the boundaries of shaft
5 of
Masimong Gold Mine. Similarly, the respondent did not produce
evidence of physical transportation of ore outside the boundaries
of
the shaft by any suspect. By virtue of such lack of evidence, the
appellants contended that their prosecution was fatally futile.
Let
me put it differently. They contended that proper interpretation of
the section means they could only have been successfully
prosecuted
if gold had been found in their possession outside the boundaries of
the mine.
[64]
The interpretation of the section by the appellants is flawed.
Such a construction can lead to absurd consequences. It would mean
that a legal mine worker can carry up unwrought precious metal, in
this instance ore, from any level underground to any spot on
surface
such as his dormitory at the hostel without any fear of prosecution
or dismissal because his dormitory is not outside the
boundary of the
mine where (s)he is employed. It is unthinkable to argue that the
lawmaker could ever have contemplated such a
situation.
[65]
I think the legislative purpose for the enactment of section
23 was to prohibit the shipment of the precious metal from any place
whatsoever, not only outside the boundaries of the mine but even
inside such boundaries, in other words on the premises of the
mine,
to any other place, be it on or off the property of the mine, unless
the possessor is lawfully authorized by way of prescribed
documentation to transport or to convey it in any other manner. The
phrase "outside the boundaries of any..." is generic.
It
applies to the boundaries of "any works" on the mine, to
the boundaries of "any property" on the mine, to
the
boundaries of "any place" on the mine where precious metal
is "mined", to the boundaries of "any place"
on
the mine where such metal is "refined" or to the boundaries
of "any place" on the mine where such metal
is "worked
with". That is just how strict precious metals are protected by
statute. And for obvious reasons. I am afraid,
the interpretation of
the section by the appellants would certainly defeat that very
legislative purpose.
[66]
It is quite apparent that any unauthorized possession of a precious
metal outside the boundaries of any place, say a refinery
plant for
instance, is prohibited. It follows, therefore, that even a lawfully
employed miner who dares carry gold or ore from
a place where it is
mined underground to any other place, say a mine captain's office or
car on surface, contravenes the section
unless his possession of such
precious metal is duly authorized in terms of the section.
[67]
The phrase, "outside the boundaries," cannot be restricted
to the external geographical boundaries of the mine property
only.
Such a restrictive interpretation, which the appellants seek to place
on the phrase, would defeat the purpose of this section.
The generic
interpretation, which I think has to be placed on the phrase, is in
keeping with the legislative purpose of the enactment.
Letting legal
miners ship gold right up to the surface from the level deep down
where it is mined would be very unbusiness-like.
In such an event the
security of precious metals which is envisaged in the section would
be drastically weakened or compromised.
[68]
The court a
quo
summarized
the matter at para 189 of the judgment. At para 191 the trial judge
had this to say about the transportation of gold:
''As indicated under
count 298,
Ackerman calculated that the
total value of the gold lost to Harmony Mine was R125 884 303. He
arrived at this figure after a detailed
process of calculations, and
was not seriously challenged on this.
It
is also not in dispute that a large quantity was stolen from the
mine. Ms Patrinos' criticism was that the date reflected on
the table
compiled by Ackerman was after the date of commission cited in the
indictment. The table was therefore not an accurate
reflection of
gold recovered or lost lo the mine. The amount is of academic
importance.
The more important issue is
that a large quantity of gold and gold bearing material was stolen
from the mine
through a pattern of
racketeering activity by an enterprise that all the accused had been
shown to be associated with. I am of the
view that with regard to
this count the state has proved its case beyond reasonable doubt."
(my emphasis)
I
am in respectful agreement.
[69]
In light of the above considerations, I am not persuaded that the
appeal can be upheld on the basis of this particular ground
or
contention.
[70]
In the third place,
the
ground of the appeal pertaining to the identity of the perpetrators.
This is the main ground of the appeal, that counsel for
the
appellants hinted up front in his opening address. The question
before us on appeal is whether the evidence as a whole established
beyond reasonable doubt that the appellants were involved in the
racketeering enterprise in general. To determine the issue, it
is
imperative that we take a closer look at the circumstances in which
the illegal mining and related organized criminal activities
were
committed.
[71]
On the one hand, Mr Nel argued, on the strength of what he
perceived as questionable and unfavourable aspects of the prosecution
case, that the court a
quo
erred in accepting the evidence
through which the appellants were identified as the racketeers.
Counsel submitted that the issue
of identity has to be decided in
favour of the appellants. Consequently, counsel urged us to uphold
the appeal and to reverse the
verdict in respect of all the
appellants.
[72]
On the other hand, Mr De Nysschen disagreed. He argued that
the critique levelled against the prosecution witnesses was
unfounded.
He added that the court
a quo
was so impressed by
the evidence of Ackerman and Oosthuizen that the trial Judge hardly
mentioned a single point of criticism against
any of them. Therefore,
counsel submitted that the issue of identity was correctly determined
in favour of the prosecution. Consequently,
counsel implored us to
dismiss the appeal and to confirm the verdict in respect of each and
every appellant.
[73]
The evidence adduced by the prosecution contained certain
features favourable to the defence. I deem it necessary to mention
some
of those favourable features.
·
The mine was equipped with an electronic system
called biometric database;
·
By means of biometric database system, access to
the shaft was monitored, controlled and regulated;
·
The system recognizes and identifies
bona
fide
miners by way of their bar-coded
clocking identity cards;
·
The system detects anyone who attempts to gain
access to the shaft without a valid bar-coded clocking identity card
and alerts the
mine security agency.
[74]
Although Masimong Gold Mine was isolated from the other mines
in its immediate proximity, its number 5 shaft was linked to its
number
4 shaft by way of underground tunnels.
·
The mine security agency, Bidvest Protea Coin,
launched a clean-up operation on 10 April 2014;
·
The purpose of the operation was to flush illegal miners out
of number 5 shaft.
[75]
The evidence adduced by the prosecution also contained further
features favourable to the defence. None of the appellants:
·
was found anywhere in the shaft;
·
was found actually mining gold;
·
was found with gold in his possession;
·
was found with any property stolen from the mine, save accused
18;
·
was found with money in his possession, save accused
·
was found with explosives in his possession.
[76]
The unfavourable features of the evidence were, among others,
the following:
· They were all arrested after
the operation;
· they were arrested on the
mine property save appellant 22·
· they were arrested between 15
April 2014 and 15 July 2014;
· the majority of them were not
citizens of the country;
· the foreigners who were
illegal in the country, hailed from Zimbabwe and Mozambique;
· one of them, namely appellant
18, was found with a safety hat owned by the mine;
· the same appellant 18 was
found with cash in his possession;
· during the operation, all
transaction notes, drawings, list of names, letters received, house
floor plans and photographs
were discovered;
· a place where persons slept
was discovered;
· a place where gold was mined
was discovered;
· several places (gold refinery
plants) were discovered where ore was processed;
· large quantity of ore ready
to be refined was discovered at one of those gold processing plants.
[77]
The above pieces of circumstantial evidence found at level 1810 of
shaft 5 are very significant. Their significance is inextricably
intertwined with the evidence of the circumstances in which the
majority of the appellants were arrested. The evidence of Oosthuizen
was that 20 of them were arrested on surface as they were stepping
out of the cage elevator of the shaft from underground. The
witness
was corroborated by numerous witnesses. Among others, Binneman as
well as other members of the security personnel who made
the arrests
gave highly incriminating evidence against the appellants. The golden
thread that runs through their various accounts
of the arrests was
that the appellants were arrested as they were stepping out of the
shaft cage elevator They added that the appellants
co1ild not
identify themselves by means of the official biometric clocking
identity cards.
[78]
The above incriminating evidence adduced by the prosecution
witnesses such as Oosthuizen, Binneman and other security guards who
were intimately involved in the arrests, must be assessed, considered
and weighed LIP against the ex0ulpatory evidence adduced
by the
appellants. All of them, with the exception of two, denied the
allegations that they were ever in the shaft cage elevator
and that
they were arrested as they were emerging on surface from underground.
They all averred that they were arrested elsewhere
far from the cage
elevator of shaft 5. Although they admitted that they were not
lawfully employed by the mine and that they were
arrested on the mine
property, they pertinently denied any participative involvement in
the alleged illegal mining activities and
discoveries made during the
operation clean-up.
[79]
The versions of most of the appellants were substantially the same.
Almost every one of them testified that he was on the mine
property
for one or other innocent purpose such as to salvage some scrap
metals. All of them stated that the various mine security
guards gave
untrue evidence concerning the precise locations of the various
arrests.
[80]
The court a
quo
was not impressed by any of them. Mr De
Nysschen ventured so far as to say that describing all of the
appellants as extremely poor
witnesses was an understatement. To the
extent that their versions were inconsistent with the versions of the
prosecution witnesses,
the court a
quo
rejected such versions
as being false beyond a reasonable doubt. That finding is one I
cannot hold to be wrong.
[81]
The court a
quo
found that the incriminating evidence
indicated that each of the appellants was, to a greater or lesser
extent, connected to the
racketeering enterprise; that each of them
associated himself with its objectives; that together they were
joined by a common purpose
to promote its aims and objectives and
that, through an organized pattern of racketeering activity, they
unlawfully accessed the
levels of shaft 5 where they illegally mined
and sold gold. The evidence, direct and circumstantial, justified
those findings.
The appellants failed to give a reasonably innocent
explanation for their presence not just on the surface of the mine
but deep
down in its shaft. There can be no innocent explanation for
their underground stay other than that they were prompted to do so by
their determination to illegally mine and steal the precious metal.
[82]
The evidence by the prosecution witnesses concerning the precise
place of the various arrests was telling against the appellants.
Not
much was made by the appellants in their attempts to destroy or to
neutralize the evidence of numerous accounts pertaining
to the
arrests. There is a whole lot more than meets the eye in the evidence
of those various and consistent accounts. The precise
places where
the different appellants were arrested, the nature of the goods,
articles or items actually found in their possession
at the time of
the arrests, the mere physical appearance of some of them, the
inconsistencies between the spontaneous versions
on the mine and the
subsequent versions in court - were all objective pointers of their
active association and participative involvement
in the organized
illegal activities in the shaft.
[83]
Among others, hard safety heads, new protectors, and cap lamps - all
ordinarily used by miners - were found in the possession
of some of
the appellants. The physical conditions of some of them virtually
resembled that of an underground miner. Some of the
names appearing
on the name list underground matched the names of some of the
appellants. Although the names of some of the appellants
did not
tally with the names on the list, it was not unthinkable that some of
them had adopted nicknames or fake names in order
to confuse the
enemy. It is also significant to keep in mind that some of them
admitted that the true images were reflected on
the photographs taken
underground while others simply disputed the images in the
photographs which are obviously the true images
captured by the
camera underground. Those who denied their own images went so far as
to dispute even the background scene of the
photographs
notwithstanding the fact that the name Masimong Mine was depicted on
the photographs. Moreover, one of the appellants
was found wounded
underground where he was arrested. All these aspects of the evidence
strengthen the evidence of Verster but weakened
that of the
appellants.
[84]
Before the trial, the appellants were incarcerated at
Hennenman Correctional Centre. They were appalled by the conditions
at the
centre. They decided to complain to the Director: Public
Prosecutions: Free State Province. They caused their complaint to be
written
down. The letter to that effect was addressed and mailed to
the director.
[85]
Upon receipt of the letter, "exi s", the director
dispatched an envoy to Hennenman to investigate the complaint. The
envoy,
Mr Pretorius, held a discussion with accused 1, now the
appellant 1. He reckoned that appellant 1 was the author of the
letter.
However, at the trial, appellant 1 denied the allegation that
he was the
de facto
author thereof. Instead he averred that he
did not personally do the writing; that he merely dictated the
contents thereof to one
gentleman by the name of WIison Katambo who
actually wrote it.
[86]
A handwriting expert, Brigadier Hattingh, testified as a
prosecution witness. According to him, "exi s" was written
by
the same writer who wrote, among others, certain letters
discovered by the police during the raid of the house of Mphezi. He
used
the letter "exi s" as a given specimen. The witness
did not personally obtain a handwritten specimen from appellant 1.
[87]
The exculpatory evidence of appellant 1 had to be weighed
against the incriminating evidence of the prosecution witness.
Although
he was a relatively intelligent man, on this point, he
attempted to protect himself. In a rather cunning sort of way, he
projected
the appearance of an illiterate man who could hardly write.
The trial judge was not deceived by his deceptive demeanour in the
witness box. It is quite obvious that he was the
de facto
writer
of the highly incriminating letter, that he was the driving force of
the complaint and that the group regarded him as their
preferred
spokesperson. These and other aspects of the evidence substantially
compelled the conclusion that he was the ring leader
of the pack, so
to speak. And that puts him squarely within the ambit of section
2(1)(a). The cap of a manager of a racketeering
criminal enterprise
perfectly fits him. He and not the alleged Wilson Katambo had
discussions with the director's envoy, Adv Pretorius.
All along,
right from the beginning right up to the end of the discussion, it
never occurred to
him
that appellant 1 was not the actual writer of the letter, "exi
s". The trial judge was in a privileged position to
hear
appellant 1 testify and to observe his demeanour.
[88]
In the end, the trial judge was not impressed by his
performance and rejected his evidence as untrue. Before convicting
the appellant
1, the trial court made certain factual findings
against him. On appeal before us, I could find no sound basis for
interfering
with those factual findings. An appeal court can only
interfere with the factual findings made by the trial court in very
rare
cases where it is shown that the trial court was clearly wrong
on the facts.
R v Dhlumayo and Another
1948 (2) SA 677
AD
on
705-6.
[89]
The prosecution witness, Pretorius, travelled from
Bloemfontein all the way to Hennenman to discuss the grievances of
the appellants.
He, appellant 1, participated in those discussions
not only in his personal capacity but also in his representative
capacity as
the spokesperson for the group. He did not solicit the
assistance of the alleged Wilson Katambo. I hasten to point out the
obvious.
Among the appellants, no one goes by the name Wilson
Katambo. This fictitious character was obviously created as a ploy in
a desperate
attempt to bail appellant 1 out of trouble. It is quite
obvious,
ex facie
the letter, that it was written by Lovemore
Chaba, appallent 1. And so the court
a quo
found.
[90]
I am satisfied therefore, that his evidence in connection with
the authenticity of "exi s" was correctly rejected. He was,
without any doubt, the author of the letter written at the
correctional centre as well as the incriminating letters discovered
on surface as well as documents discovered underground. Above all
these considerations, the entire spectrum of the evidence justified
tile finding that he was the ringleader of the criminal enterprise
exposed at Masimong Gold Mine.
[91]
The complaint of appellant 1 was that the court
a quo
failed
to evaluate the evidence of Pretorius, Oosthuizen and Hattingh
properly. Other than that, it was not suggested on his behalf
that
the court
a quo
misdirected itself in any material respect. In
the absence of any material misdirection on this particular point,
the conclusion
reached by the court
a quo,
including its
acceptance of the evidence now under attack, is presumed to be
correct. The trial judge found, on the facts, that
he was the actual
writer of the letter in question.
[92]
Because we are sitting as a court with appellate jurisdiction,
our powers to interfere with such a factual finding on appeal are
restricted. In order to interfere with that factual finding on
appeal, appellant 1 had to convince us, on adequate grounds, that
the
trial court was clearly wrong in accepting the evidence which another
court would have rejected. Mere reasonable doubt will
not suffice to
justify appellate interference with the factual finding made by the
trial court.
S v Dhlumayo,
supra.
[93]
In
5 v Francis
1991 (1) SACR 198
(A)
at 204e,
Smalburger JA said, in pretty much the same vein:
"Bearing in mind
the advantage which
a
trial
court has of seeing, hearing and appraising
a
witness
it is
only in exceptional cases
that
this court will be entitled to interfere with
a
trial court's evaluation of oral testimony
(S
v Robinson and Others
1968 (1)
SA
666
(A) at 675G-H"
(my emphasis)
In
the instant appeal, no adequate grounds were advanced to convince us
that the court a
quo
was wrong. Consequently, we cannot
interfere with the factual finding that appellant 1 was the author or
writer of "exi s"
- see p4775, Volume 21 of the record. The
court a
quo
was impressed by Brigadier Hattingh.
[94]
I deem it apposite to quote Naidoo, J. At
para 88 of the judgment, the trial judge said:
"I found nothing
improbable in the evidence of Daniel Pretorius of the DPP's office.
He was in possession of a letter written
by Lovemore Chaba and met
him to discuss the allegations in the letter. The entire tone of the
meeting suggested to him that accused
1 was the author of the letter
and he had no reason to believe otherwise. When his evidence is
considered with that of Hattingh
it is clear that accused 1 was the
author of the letter, Chaba 0001. Lf regard is had to accused 1's
version that the author of
that letter was his former employee,
Wilson Katambo then his version makes no sense at all. According to
him Katambo worked in
accused 1's shop while he (accused 1) was in
custody. Katambo was never underground but he could explain how
Katambo would write
letters to Nobuhle Mphezi or mention the names of
his wife, son and the name Cleo in many of the documents.
Hattingh's
evidence that letter 4/70b is a copy of letter 4/70a, which was found
in Nobuhle Mphezi's house, indicates a very strong
probability that
accused 1 is the author of that letter.
Nobuhle's evidence
is that the child she had with accused 1 is a boy called Gift. The
name 'Gift' as well as letters addressed 'Mai
Gift' feature regularly
in the exhibits that were recovered. We heard that 'Mai' means
mother, so that can only be a reference
to Nobuhle."
(my emphasis)
This
summary of the evidence is very important. It completely destroys the
edifice of the evidence given by appellant 1. Wilson
Katambo never
really existed. The character was really a figment of appellant 1's
overheated imagination. In truth and in reality
Wilson Katambo and
Lovemore Chaba were one and the same person - appellant 1- nothing
more nothing less.
[95]
Ms Nobuhle Mphezi was called as a
prosecution witness. Among others, she testified that once upon a
time she was in an intimate
relationship with Lovemore Chaba; that
she had last seen him in 2008; that he did not know that Gift, her
son born on 26 December
2008, was his son; that she had no idea as to
who Mlambo or Melikhaya was; that appellant 1 knew her by name Beauty
Nago; that
appellant 1 was not the biological father of her daughter,
Nasi; that the police raided the house, seized copies of her birth
certificate,
her son's birth certificate and cortain pictures but not
letters; that she did not understand Shona language; that she did not
say anything about the alleged letters found in her house in her
witness statement to the police; that she merely signed the statement
on 3 October 2014 as the police requested her to do; that she did so
without reading it first and that it was not read back to
her.
[96]
On behalf of appellant 1, Mr. Ne! submitted that because the
above aspects of Ms Mphezi's evidence were uncontested the court
a
quo
was bound to accept her evidence and that the court a quo
erred by rejecting such an uncontested evidence.
[97]
The appellants, in particular appellant 1, placed a great deal of
emphasis on what they regarded as the uncontested evidence
of Ms
Mphezi. He heavily relied on those specific aspects of the evidence
to which I have alluded at para 95 above. Was the witness's
evidence
really uncontested? To that question I turn now.
[98]
Firstly, her evidence was at odds with
that of Shuping. He was a member of the police investigation team. He
testified that he was
present when the police visited, raided and
searched Ms Mphezi's house; that the police spotted a black box on
top of the wardrobe;
that they retrieved it; that it contained
letters and certificates and that they seized the certificates
together with the letters
from Ms Mphezi's house. Shuping's evidence,
clearly contradicted Ms Mphezi's evidence that the incriminating
letters did not originate
from her house. See "exi ww" for
Shuping's witness statement.
[99]
Secondly, Ms Mphezi's evidence was also at odds with that of
another police witness, Mokhooe. This particular witness testified
that he interviewed Ms Mphezi and took down her statement on 3
October 2014; that her evidence that he distorted the contents of
her
statement was untrue; that her evidence concerning the alleged
irregularities was untrue and that all the documents seized
from her
house were photographed.
[100]
Constable Mokhooe's evidence, also clearly contradicted Ms
Mphezi's. The photographs taken during the search and seizure of
Mphezi's
house were telling against her credibility. These
photographs provided objective proof that the disputed letters were
found in
her house. They objectively bolstered the prosecution case
against lady's man, appellant 1. Ms Mphezi's evidence was partially
true and partially untrue. Mr De Nysschen wisely chose not to have
the witness declared a hostile witness as that would have nullified
her entire evidence, something which would not have been to the
advantage of the prosecution case. Therefore, the correct factual
position is that the state did not accept the whole of her evidence
which was why Warrant Officer Shuping and Constable Mokhooe
were
called to set the record straight by refuting the untrue aspects of
her evidence. By comparison those 2 police witnesses were
more
impressive, credible and reliable witnesses than Ms Mphezi.
[101]
To the extent that her evidence deflected from the evidence of
credible and reliable prosecution witnesses, it was correctly
rejected
by the court a
quo.
It follows, therefore, that the
contention of the gentleman - appellant 1, that the evidence of Ms
Mphezi was uncontested and that
the court a
quo
should have
accepted such uncontested evidence - cannot be sustained on appeal.
The lady witness tried her best to protect appellant
1. Unlike the
two police witnesses, she had a real interest in the outcome of the
trial. Her interest was underlined by the intimate
relationship she
and appellant 1 had. It was precisely that intimate bond which
induced her to become an ambivalent witness.
[102]
In the disputed letters, the writer refers to Ms Mphezi, her
son and her daughter in very affectionate terms. From all these, it
can be deduced, with a very high degree of certainty, that the writer
thereof, one Melikhaya Pere, was just a pseudonym for Lovemore
Chaba.
Ms Mphezi's denial was a desperate and belated attempt to distance
appellant 1 from the inevitable repercussions of the
highly
incriminating letters.
[103]
In view of all these considerations, I am not persuaded that
the court a
quo
committed any material misdirection as regards
the identity of any of the appellants as the racketeers who jointly
participated
in the organized criminal activities which were
discovered underground at shaft 5 of Masimong Gold Mine. It being the
case, the
appeal cannot succeed based on this particular ground of
appeal. The evidence as a whole established certainty beyond
reasonable
doubt that the appellants had everything to do with all
the organized crimes we are here concerned with.
[104]
In the fourth place,
I deal with the ground of appeal
concerning the doctrine of common purpose. The appellants contended
that no evidence was adduced
to sustain the finding of the court a
quo
that they acted with a common purpose. The contention was
premised on the undisputed fact that no letter, note, list or any
other
document whatsoever containing the names of all of the
appellants, was discovered and exhibited in court during the course
of the
trial.
[105]
I am of the view that the above argument was very thin. The
doctrine of common purpose does not necessarily depend on any list of
names or 1:my other written instrument for that matter. The author,
Snyman:
Criminal Law,
5th Ed, 2008 on 265
comments that the crucial requisite of the doctrine of common purpose
is that it has to be proven that the accused
persons must all have
had the intention to commit the offence and to assist one another in
order to attain that particular criminal
objective. The basis upon
which the doctrine operates, is the individual accused's active
association with the common purpose of
the group. See
Snyman:
op
cit
267.
[106]
I hasten to add that the elementary requisite of active association,
through which an individual may be ensnared, is the secondary
dimension of the doctrine. It applies to latecomers. The primary
dimension of the doctrine is the existence of a prior mutual
agreement to commit a crime. Such primary dimension of the doctrine
applies to the originators, in other words the founding members
of a
criminal venture. Those are individuals who first came together and
mutually conspired to form a group whose common purpose
is to attain
a specific goal by unlawful means. The racketeering enterprise is
their brain child. It is usually more difficult
to prove such prior
agreement than to prove active association.
[107]
This case was no exception to that general practical problem.
The prosecution did not have direct evidence to prove the alleged
common purpose by virtue of prior mutual agreement. Where, as in this
instance, common purpose cannot be proven by way of mutual
agreement,
its existence can be proven by way of active association. The
secondary dimension of the doctrine was the basis upon
which the
appellants were convicted. The evidence revealed that appellant 1
unlawfully occupied the shaft for years; that at times
he used a fake
name, Mlambo; that he inhabited the shaft with other unlawful
occupiers; that many names were mentioned in many
letters, notes,
lists and other documents discovered at or in the proximity of such
underground dwelling; that such names were
most probably fake names
of those who, like appellant 1, unlawfully occupied or inhabited the
shaft; that almost all of the appellants
were arrested as they were
exiting the shaft; and that illegal mining had been carried out on a
large scale in the tunnels of the
particular shaft.
[108]
In view of those circumstances that were
prevailing down in the shaft before the arrests of the appellants,
inferences were drawn
that the appellants were, for some time, in an
unlawful occupation of the shaft; that they did not certainly go down
the deep shaft
of the gold mine just to have a picnic down there;
that they ventured to breach security measures as well as safety
measures to
get underground at all costs; that there was a whole lot
more in the joint venture, if not for the appellants then for some
powerful
syndicates, than we can ever imagine; that a group rather
than an individual must have been certainly involved in the organized
illegal mining operations discovered underground; that the
determination of each individual who went down was a manifestation of
his professed intention to become part of the organized criminal
enterprise; that irrespective of where and when the group was
formed,
all those who went down, occupied the mine, mined the ore, extracted
amalgam from the ore, should have shipped such gold
out for
commercial sale and that they thereby actively associated themselves
with the prime objective of the organized criminal
enterprise, the
stealing of the precious metal.
[109]
It is practically very difficult, if not almost impossible,
for one or two persons to successfully conduct elaborate and arduous
activities of illegal mining of gold deep underground. Plain common
sense dictates that only a group of those who are in it together,
who
share the same vision, who embrace the same goals and who dedicate
themselves to the ultimate attainment thereof can collectively
embark
upon such a course. I am of the view, and it is a very firm view,
that all these were legitimate inferences to be drawn.
They are all
justified by the objective facts. I am convinced that all the
appellants were, by a process of inferential reasoning,
correctly
identified as illegal miners or "kansvaters" or "zama
zamas" as some would colloquially prefer to
label them. There
was overwhelming circumstantial evidence against all of them.
[110]
In
S v De Villiers
1944 AD 493
on 508-9
the court said
the following about the cumulative effects of circumstantial
evidence:
"The Court must
not take each circumstance separately and give the accused the
benefit of any reasonable doubt as to the inference
to be drawn from
each one so taken.
It must carefully
weigh the cumulative effect of all of them together,
and
it is only after it has done so that the accused is entitled to the
benefit of any reasonable doubt which it may have as to
whether the
inference of guilt is the only inference which can reasonably be
drawn. To put the matter in another. way;
the
Crown must satisfy the Court, not that each separate fact is
inconsistent with the innocence of the accused, but that the evidence
as a whole is beyond reasonable doubt inconsistent with such
innocence"
(my emphasis)
[111]
Accordingly, I am not persuaded by the
contention of the appellants that there was insufficient evidence to
prove that they acted
with a common purpose. In my view, there was no
other reasonably possible inference that could be drawn from the
proven objective
facts other than that the appellants, acting in
concert with one another, unlawfully colonised and occupied the shaft
for the sole
purpose of mining and stealing gold. The court a
quo
correctly found that they worked together in
order to make a success of the illegal endeavours and to survive in
the most unforgiving
of
circumstances. I am, therefore, of the
firm view that the appeal cannot be upheld on this ground either.
[112]
In the fifth place,
I turn to the ground of appeal
pertaining to money laundering. Now, this is the last mile of the
road. Here the contention of the
appellants was that there was no
evidence adduced to prove that they committed the offence of money
laundering.
[113]
Elsewhere in this judgment, I have earlier found that the
versions of the appellants were beyond reasonable doubt false as the
court
a
quo
found. The allegations that, at best for the
state, they were trespassing - was far-fetched and ridiculous. This
was not the case
of a group of men walking from farm "X"
unlawfully across farm "Y" in order to get to farm "Z"
without
any criminal intent to commit any crime on farm "Y".
Here we have a group of foreign people who lived underground on a
semi-permanent basis. The cost of living there was prohibitively high
but living there they did. Certainly something must have
prompted
them to do so. It is ridiculous to suggest that they were merely
trespassing. By any stretch of imagination that allegation
was far
from the truth.
[114]
In the sixth place,
I deal with the ground of appeal relative
to participation in criminal gang activities. In this regard, the
appellants contended
that no evidence was adduced to prove that they
participated in criminal gang activities or that they wilfully aided
and abetted
any criminal activity in contravention of Sec 9(1) Act
No. 171/1998.
[115]
The point does not need to detain us longer than it is
necessary. It is unclear why it is raised at all on appeal. The
appellants
were not indicted for any contravention of section 9. That
is a fact, plain and simple. Needless to say, there is no arguable
point
here which requires our consideration on appeal.
[116]
On appeal, the appellants abandoned certain grounds of their
appeal and the corresponding submissions made in support of their
appeal.
The submissions related to the argument in support of the
following contentions:
· that the ownership of the
gold bearing material rests in the state and not the mine;
· that the gold bearing
material was incapable of being stolen because, as they contended,
level 1810 had been abandoned
by Harmony Gold Mine (Pty) Limited and
had thus become
res derelictae;
· that Lovemore Chaba,
appellant 1, was not an illegal immigrant; that evidence pertaining
to the arrests of the appellants
was of no evidential significance
seeing that none of them was arrested on or near the crime scenes
either at level 1750 or level
1810;
· that the decision in
S v
Litako and Others
2014 (2) SACR 431
(SCA)
at par [68-1] was
authority for the proposition that evidence by one accused against
another given during the course of earlier
bail application
proceedings was inadmissible as regards such co-accused.
This
completes my consideration of all the grounds of the appeal.
[117]
In view of the peculiar circumstances of this particular case,
I am not persuaded that the court a
quo
committed any material
misdirection on any ground whatsoever to warrant any appellate
interference. In the absence of any such misdirection
we are not at
liberty to interfere. I would, therefore, confirm the conviction of
each appellant.
[118]
Now I turn to the sentence component of the appeal. The powers
we have as a court with appellate jurisdiction are limited. Sitting
as a court of appeal, we can only inteifere with the sentence imposed
If the trial court unreasonably or improperly exercised the
sentencing discretion primarily entrusted to it or if the sentence
imposed by the trial court is disturbingly disproportionate
to
persons of the appellants, the gravity of the crime and the interest
of justice.
S v Giannoulis
1975 (4) SA 867
(AD)
and
S v
Pieters
1987 (3) SA 717
(AD).
[119]
In a case where the prescribed minimum sentence is applicable
in terms of section 51 Criminal Law Amendment Act 105/1997, the legal
position was outlined as follows in S
v Malgas
2001 (1) SACR 469
at 481
para [25]:
"Unless there
are, and can be seen to be, truly convincing reasons for
a
different response, the crimes in question are
therefore required to elicit
a
severe,
standardised and consistent response from the courts".
There
may, of course, be differences between the personal circumstances of
co-offenders sometimes. Such marginal differences in
the degrees of
participation by co-offenders which might ordinarily justify
sentencing differentiation between co offenders
are not, without
more, justification for departure from the presc1ibed minimum
sentence.
S v Malgas,
supra,
at para [48].
[120]
In aggravation of sentence, the respondent led the evidence of
Ernest Edward Janse van Rensburg. His evidence gave the court
a
quo
an overview of the menace of illegal mining in the Free State
Goldfields. What is abundantly clear from the witness's evidence is
that the adverse impact of illegal mining is enormous and that the
mines, the law enforcement agencies, both public and private,
are
hopelessly fighting a losing battle. The menace posed by this
criminal enterprise has become extremely serious.
[121]
The central legislature views organized crime in such a
serious light that it ordained that life imprisonment be imposed in
appropriate
cases, for racketeering. Theft of precious metals such as
gold, is also viewed in a very serious light since millions of rands
are often involved in such economic crimes. Moreover, the financial
implications of an attempt to curb, let alone to eradicate,
the
organized crimes of illegal mining of gold are extremely enormous
and, therefore, prohibitive.
[122]
The court a
quo
properly considered all the factors relevant
to sentencing. The personal circumstances of each individual
offender, the gravity
of the crimes committed and the interests of
the community offended were evenly considered and balanced sentences
imposed on each
offender in respect of each crime for which (s)he has
been convicted.
[123]
It is so that some of the sentences imposed on some of the
appellants are indeed stiff sentences. However, I am not persuaded
that
it can be said that they were disturbingly disproportionate to
the magnitude of the organized crimes they committed. In
S v
Pillay
1977 (4) SA 531
(AD)
at 535 E-F the court, per Trollip JA,
reminds us that in an appeal against sentence, the essential inquiry
is not whether the sentence
was right or wrong, but whether in
imposing it, the court a
quo
exercised its sentencing
discretion properly and judiciously; that the mere misdirection is
not, by itself, sufficient to entitle
the court with appellate
Jurisdiction to interfere with the sentence; that a misdirection
complained of must be of such a nature,
degree or seriousness that it
shows, directly or inferentially, that the court a
quo
did not
exercise its sentencing discretion at all or that it exercised it
improperly or unreasonably.
[124]
Applying those salient principles of law to the individual
profiles of all the appellants, I am not persuaded that the court a
quo
committed any misdirection, of the type usually and
conveniently described, as one that vitiates the decision of the
trial court
on sentence. There being no materially appealable
misdirection either on a question of law or on a matter of fact, the
dictates
of justice preclude us from considering any sentence afresh.
Consequently, I am inclined to dismiss all the appeals and to confirm
all the sentences. In all the circumstances, I do not think that any
sentence imposed on any of the appellants was disturbingly
disproportionate and thus inappropriate.
[125]
In the circumstances, I make the following order in respect of
each of the 22 appellants:
125.1 The appeal fails in toto;
125.2 The conviction and sentence are
confirmed.
_________________
MH
RAMPAI ADJP
I
concur,
___________________
MA
MATHEBULA, J
I
also concur,
___________________
PJ
LOUBSER, J
On
behalf of appellants: Adv. PW Nel
Instructed
by: Legal Aid SA Bloemfontein
On
behalf of respondent: Adv. JM de Nysschen
Instructed
by: Director: Public Prosecutions:
Free
State Province
Bloemfontein