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[2008] ZASCA 97
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S v Eyssen (746/2007) [2008] ZASCA 97; [2009] 1 All SA 32 (SCA); 2009 (1) SACR 406 (SCA) (17 September 2008)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No : 746/2007
SHAMIEL
EYSSEN Appellant
and
THE
STATE Respondent
Neutral citation:
Eyssen v
S
(746/2007)
[2008] ZASCA 97
(17 September
2008).
Coram:
STREICHER,
MTHIYANE, CLOETE, HEHER JJA and
KGOMO
AJA
Heard:
21
AUGUST 2008
Delivered:
17
SEPTEMBER 2008
Corrected:
Summary:
Prevention of Organised Crime Act 121 of
1998
: interpretation of
ss 2(1)(e)
and
(f) (racketeering activities).
_______________________________________________________________
ORDER
_______________________________________________________________
On appeal from: High Court, Cape Town (Veldhuizen J
sitting as court of first
instance)
The appeal succeeds. The convictions on counts 1 and 2
and the sentences imposed on those counts are set aside. The
sentences on
counts 4, 29 and 46 are ordered to run concurrently with
the sentence imposed on count 5. The effective period of imprisonment
is therefore 15 years.
_______________________________________________________________
JUDGMENT
_______________________________________________________________
CLOETE
JA (STREICHER, MTHIYANE, HEHER JJA and KGOMO AJA concurring):
[1] The appellant was the first of 18 accused charged in
the Cape High Court with 75 counts alleging statutory contraventions
as
well as common law crimes. It was the State case that the
appellant was the leader of a gang called the Fancy Boys which
operated
out of premises in Salt River and which during the years
2001 to 2003 committed a number of offences involving primarily
housebreaking
and robbery in the Cape Peninsula.
[2] The appellant was convicted by the court a quo
(Veldhuizen J and assessors) of the following offences:
(a) two relating to racketeering activities, namely,
contraventions of
ss 2(1)(e)
and (f) of the
Prevention of
Organised Crime Act
1
('the
Act') (counts 1 and 2), for which he was sentenced to 20 years'
imprisonment on both taken together;
(b) one relating to criminal gang activities in
contravention of
s 9
of the Act (count 4), for which he was
sentenced to three years' imprisonment;
(c) two of housebreaking with intent to rob and robbery
with aggravating circumstances (counts 5 and 46) and one of robbery
with
aggravating circumstances (count 29), for each of which he was
sentenced to 15 years' imprisonment.
All of the other sentences were ordered to run
concurrently with the sentence imposed for the racketeering
activities so the effective
period of imprisonment was 20 years.
[3
] Leave to appeal against the
convictions on all counts was refused by the trial judge but granted
by this court in respect of the
two counts relating to racketeering
activities only. I shall first examine the provisions of the sections
which the appellant was
found to have contravened, and then consider
the evidence.
[4] The relevant part of
s 2(1)
reads as follows (I
shall put in inverted commas words or phrases which are defined in
s 1):
'2(1) Any person who ─
. . .
(e) whilst managing or employed
by or associated with any "enterprise", conducts or
participates in the conduct, directly
or indirectly, of such
enterprise's affairs through a "pattern of racketeering
activity";
(f) manages the operation or
activities of an "enterprise" and who "knows" or
"ought reasonably to have
known" that any person whilst
employed by or associated with that enterprise, conducts or
participates in the conduct, directly
or indirectly, of such
enterprise's affairs through a "pattern of racketeering
activity";
. . .
within the Republic or
elsewhere, shall be guilty of an offence.'
[5] The essence of the offence in subsec (e) is that the
accused must conduct (or participate in the conduct) of an
enterprise's
affairs. Actual participation is required (although it
may be direct or indirect). In that respect the subsection differs
from
subsec (f), the essence of which is that the accused must know
(or ought reasonably to have known) that another person did so.
Knowledge, not participation, is required. On the other hand, subsec
(e) is wider than subsec (f) in that subsec (e) covers a person
who
was managing, or employed by, or associated with the enterprise,
whereas subsec (f) is limited to a person who manages the
operations
or activities of an enterprise. 'Manage' is not defined and therefore
bears its ordinary meaning, which in this context
is:
'1 be in charge of; run. 2
supervise (staff). 3 be the manager of (a sports team or a
performer).'
2
[6] The word 'enterprise' is defined in
s 1
as
follows:
' "enterprise"
includes any individual, partnership, corporation, association, or
other juristic person or legal entity,
and any union or group of
individuals associated in fact, although not a juristic person or
legal entity.'
It is difficult to envisage a wider definition. A single
person is covered. So it seems is every other type of connection
between
persons known to the law or existing in fact; those which the
Legislature has not included specifically would be incorporated by
the introductory word 'includes'. Taking a group of individuals
associated in fact, which is the relevant part of the definition
for
the purposes of this appeal, it seems to me that the association
would at least have to be conscious; that there would have
to be a
common factor or purpose identifiable in the association; that the
association would have to be ongoing; and that the members
would have
to function as a continuing unit. There is no requirement that the
enterprise be legal, or that it be illegal. It is
the pattern of
racketeering activity, through which the accused must participate in
the affairs of the enterprise, that brings
in the illegal element;
and the concepts of 'enterprise' and 'pattern of racketeering
activity' are discrete. Proof of the pattern
may establish proof of
the enterprise, but this will not inevitably be the case.
3
[7] It is a requirement of the subsections in question
that the accused (in subsec (e)) or the other person (in subsec (f))
must
participate in the enterprise's affairs. It will therefore be
important to identify what those affairs are. It will also be
important
for the State to establish that any particular criminal act
relied upon, constituted participation in such affairs. (Para 14
below
illustrates the point.) The participation may be direct, or
indirect.
[8] It is a further requirement that the participation
must be through a 'pattern of racketeering activity'. That concept is
defined
as follows:
' "pattern of racketeering
activity" means the planned, ongoing, continuous or repeated
participation or involvement in
any offence referred to in Schedule 1
and includes at least two offences referred to in Schedule 1, of
which one of the offences
occurred after the commencement of this Act
and the last offence occurred within 10 years (excluding any period
of imprisonment)
after the commission of such prior offence referred
to in Schedule 1.'
The word 'planned' cannot be read
eiusdem
generis
with 'ongoing, continuous or
repeated' and accordingly qualifies all three. The relevant meaning
of 'pattern' is given in the Oxford
English Dictionary
4
as 'an order or form discernible in things, actions, ideas,
situations, etc. Frequently with
of
as
pattern of
behaviour
=
behaviour pattern
.
. . .' In my view neither unrelated instances of proscribed behaviour
nor an accidental coincidence between them constitute a
'pattern' and
the word 'planned' makes this clear.
[9] The participation must be by way of ongoing,
continuous or repeated participation or involvement. The use of
'involvement' as
well as the word 'participation' widens the ambit of
the definition. So does the use of the words 'ongoing, continuous or
repeated'.
Although similar in meaning, there are nuances of
difference. 'Ongoing' conveys the idea of 'not as yet completed'.
'Continuous'
(as opposed to 'continual')
5
means uninterrupted in time or sequence. 'Repeated' means recurring.
[10] Some limitation is introduced into the definition
by the requirement that the participation or involvement must be in
any Schedule
1 offence. The limitation is, however, not substantial.
Schedule 1 lists a considerable number of offences, both statutory
and
common law, and includes (as item 33):
'Any offence the punishment
wherefor may be a period of imprisonment exceeding one year without
the option of a fine.'
[11] For the purposes of this appeal it is not necessary
to interpret the latter part of the definition of 'pattern of
racketeering
activity' commencing with the
words 'and includes' an
d I
accordingly refrain from doing so. It is also not necessary to deal
with the provisions of
ss 1(2)
and (3), which deal respectively
with when a person has knowledge of a fact, and when a person ought
reasonably to have known (or
suspected) a fact, for the purposes of
the Act.
[12] I now turn to the facts. The cornerstone of the
State case was the evidence of Mr Mishal Donough. He was an
accomplice who
was warned in terms of s 204 of the Criminal
Procedure Act.
6
The trial court appreciated the dangers of accepting his evidence and
concluded that it could not safely be relied upon unless
corroborated, which, the court correctly appreciated, meant
corroborated by evidence implicating an accused. Corroboration is of
course not the only safeguard which can properly be used to reduce
the danger of convicting an innocent person, but the trial court
was
amply justified in its approach as the representative of the State on
appeal correctly conceded. Donough was a particularly
dangerous
witness. He subjectively appreciated this; he said:
'If I wanted to I could have put
any of these accused at any scene . . . .'
He had, on his own version, been involved in more than
30 robberies in addition to the 15 to which he testified over a
period of
about two years. He had entered into a plea bargain
agreement with the State, the relevant paragraph of which reads:
'The parties further agree that
a just and fair sentence for the accused will be the following:
1. That the accused be sentenced
to a fine of R15 000 (fifteen thousand rand ) or 36 (thirty six)
months' imprisonment, of
which R7 500 (seven thousand five
hundred rand) or 18 (eighteen) months is suspended for a period of 5
(five) years on condition
that he is not convicted of theft,
attempted theft or contravening s 36 or s 37 of the General
Law Amendment Act 62 of
1955 which offence is committed within the
period of suspension.
2. The parties agree that the
accused will assist the South African Police Services to bring known
perpetrators known to him to
book, more specifically, Shamiel Eyssen.
3. The parties also agree that
the accused will testify for the State in the upcoming trials against
these perpetrators.'
Donough did not have the R7 500 and was obliged to
borrow the money from his girlfriend. Had he breached the terms of
his plea
bargain agreement, he would probably not have been able to
avoid jail. He said that if he were to go to jail, it was likely that
he would be murdered there by members of the Fancy Boys gang and he
conceded that this had played 'a big, big part' in his decision
to
enter into the plea bargain agreement. It could therefore be expected
that Donough would go to almost any lengths to co-operate
with the
State, particularly in ensuring that the appellant be convicted.
[13] The State case on both racketeering charges was
that the 'enterprise' was the Fancy Boys gang, and that the
'enterprise's affairs'
comprised robbery, particularly at private
homes. The acceptable evidence reveals very little about the gang and
its members and
suggests that there was no organisation, structure or
hierarchy. It may have been no more than a loose association of
individuals
some of whom sporadically joined with others, who may or
may not have been members of the gang, to commit crimes not for the
benefit
of the gang, but to enrich only themselves. If this is so
then on the State's submissions as to the meaning of 'enterprise',
which
were based on decisions in the United States of America,
7
the Fancy Boys gang was not an enterprise. It is not necessary,
however, to decide the point as there are other fatal flaws in
the
State case. It will suffice to highlight just one in each of the
counts on appeal.
[14] It was the State case on the count based on
s 2(1)(e) that the pattern of racketeering activity, through
which the appellant
participated in the conduct of the affairs of the
Fancy Boys gang, consisted in his commission of the common law
offences with
which he was charged. Direct participation was relied
on. The problem for the State is, as submitted on behalf of the
appellant,
that the appellant was acquitted on all but three of those
charges and it was not shown that the three on which he was
convicted,
were part of the affairs of the gang. Donough said that
the Fancy Boys were involved in armed robbery and 'mainly done house
break-ins'.
The three common law crimes of which the appellant was
convicted fit this description. But the evidence of the victims and
eyewitnesses
who testified, established that a number of persons were
involved in the commission of each. On one, only the appellant was
convicted
(count 5). The appellant and accused 12, who was a Fancy
Boy, were convicted on another (count 29). On the third (count 46),
the
appellant and accused 4, who was not a Fancy Boy, were convicted.
In all three cases neither the identity of the other participants,
nor their membership of the Fancy Boys gang, was established. It was
therefore in my view not proved that the robberies of which
the
appellant was convicted were part of the affairs of the Fancy Boys
gang. It follows that the conviction of contravening s 2(1)(e)
of the Act must be set aside.
[15] The representative for the State on appeal made
several submissions as to why the appellant was correctly found by
the trial
court to have managed the operations or activities of the
Fancy Boys gang and was therefore guilty of contravening s 2(1)(f)
of the Act. The first submission was that the gang would get together
at the appellant's house prior to each robbery, where the
appellant
would give instructions about the robbery as well as provide firearms
and vehicles for use in the robbery. But it was
not Donough's
evidence that the appellant would give instructions about each
robbery. His evidence in chief was:
'[O]n a certain day, was a
certain house targeted or a certain area like Camps Bay or Newlands,
or how did it work? – Well,
how it worked was, random areas and
random houses. If we saw a front door open we went in.'
In cross-examination he admitted that in respect of nine
counts of housebreaking with intent to rob and robbery with
aggravating
circumstances
8
the appellant had had nothing to do with the planning. In the event,
the appellant was convicted of having committed three robberies
which, I have already found, were not shown to be part of the affairs
of the Fancy Boys gang. Donough did indeed say that the appellant
provided guns and vehicles for the Fancy Boys to commit robberies,
but this evidence was not corroborated and it accordingly falls
to be
disregarded.
[16] It was submitted that according to Donough, the
premises rented by the appellant at 45 Coleridge Road in Salt River,
after
he moved from his previous address, became the stronghold of
the Fancy Boys gang. But again, that was not Donough's evidence. What
he said in the passage relied on by the representative for the State
was:
'Accused No. 1 then made
arrangements with the other gang leader who I know as Madat American.
He made arrangements to rent a house
at 45 Coleridge Road, Salt
River, for the purpose of selling drugs. This house then became the
new stronghold, or as I know it,
pos.
It was known [as] the pos? –
Well, a drug house in gangster terms is called a pos.'
If this passage is properly analysed, Donough's evidence
was that the house became the new stronghold for selling drugs, not
the
new stronghold for the Fancy Boys gang. And even if it be
accepted that the appellant managed a drug dealing operation at the
house
at 45 Coleridge Road, it was not established that this was part
of the operation or activities of the gang, as the representative
of
the State correctly conceded on appeal.
[17] It was further submitted that the appellant was
unemployed, but still able to amass some wealth as he owned a house,
was able
to rent another house for between R3 500 and R4 500
per month and had at least R25 000 in cash which was found at
his mother's house. But all of this could be in consequence of his
activities as a drug dealer. Nor does the fact that according
to
Inspector Kotze the appellant was the person who assumed charge when
the police executed search warrants at 45 Coleridge Road,
take the
matter further: the appellant was the lessee of the premises where
the drug dealing operation was being conducted and
(on the State
case) he managed that operation. He could therefore be expected to
have taken charge when the premises were searched
by the police for
those reasons, not because he was managing the operation or affairs
of the Fancy Boys gang.
[18] Inspector Kotze also testified that when some gang
members were arrested, the appellant paid their bail and that when
the appellant's
co-accused were arrested, they refused to sign
warning statements unless the appellant gave them permission to do
so. But not all
of the accused, and not all of those whose bail was
paid, were members of the Fancy Boys gang; and the fact that some of
them were,
is not a sufficient basis to find that the appellant
managed the operation or activities of the gang.
[19] The trial court, in finding that the appellant
managed the operation of the gang, said that he gave instructions at
the house
at 45 Coleridge Road to members of the gang before the
robberies which formed the subject matter of two of the counts on
which
he was convicted (5 and 46), were committed. So far as the one
(count 5) is concerned, this was a factual misdirection. So far as
the other (count 46) is concerned, assuming that the finding of the
trial court is correct, the robbery in question was not shown
to form
part of the operation or activities of the gang and if the appellant
did indeed give instructions to those involved in
the robbery, this
does not support a finding that in so doing he managed the operation
or activities of the gang.
[20] There was no cross-appeal by the State on sentence,
nor any suggestion that if the convictions and sentences imposed on
the
racketeering counts were set aside, this court should increase
the effective sentence beyond 15 years.
[21] The appeal succeeds. The convictions on counts 1
and 2 and the sentences imposed on those counts are set aside. The
sentences
on counts 4,
29 and 46 are ordered to run concurrently with the
sentence imposed on count 5. The effective period of imprisonment is
therefore
15 years.
_______________
T D CLOETE
JUDGE OF APPEAL
Appearances:
For Appellant: G Smith
Instructed by
Lovius-Block Attorneys Bloemfontein
For Respondent: P van Wyk
Instructed by
The Director of Public Prosecutions Cape Town
The Director of Public Prosecutions Bloemfontein
1
121 of 1998.
2
The
Concise Oxford English Dictionary (10
th
ed) sv 'manage'.
3
United States v Turkette
,
[1981] USSC 152
;
452 US 576
(1981) at 583.
4
2
nd
ed sv 'pattern', meaning 8(c).
5
Which means 'constantly or frequently occurring':
Concise OED (revised 10
th
ed) sv 'continual'.
6
51 of 1977.
7
Particularly
United States v Turkette
,
above n 3 and
United States v Bledsoe
[1982] USCA8 178
;
674 F.2d 647
(1982) especially at 665. The latter requires 'a common
or shared purpose which animates those associated with it', and that
the enterprise functions as a continuing unit, as well as 'an
ascertainable structure distinct from that inherent in the conduct
of a pattern of racketeering activity' such as the command system of
a Mafia family or the hierarchy, planning and division of
profits
within a prostitution ring.
8
Counts 33, 34, 35, 37, 38, 39, 41, 44 and 53.