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[2008] ZASCA 149
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S v Matsabu (186/08) [2008] ZASCA 149; 2009 (1) SACR 513 (SCA) ; [2009] 2 All SA 150 (SCA) (27 November 2008)
THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case
No: 186/08
T
P MATSABU Appellant
and
THE
STATE Respondent
Neutral
citation:
Matsabu
v S
(186/08)
[2008] ZASCA 149
(27 November 2008)
Coram:
HEHER,
COMBRINCK and CACHALIA JJA
Heard:
12
NOVEMBER 2008
Delivered:
27
NOVEMBER 2008
Corrected:
Summary:
Criminal procedure
– s 252A of
Criminal Procedure Act 51 of 1977
– trap –
admissibility of evidence.
_____________________________________________________________________
ORDER
__________________________________________________________________
On
appeal from:
Full Court of the
Free State Provincial Division, (Van der Merwe and Musi JJ sitting as
court of appeal).
The
appeal is dismissed.
_____________________________________________________________________
JUDGMENT
HEHER
JA
(Combrinck and Cachalia JJA concurring):
[1] The
appellant was employed by the Maqhaka Traffic Department as a law
enforcement officer. On 18 December 2003 he was arrested
during an
anti-corruption operation conducted by a unit of the Free State
Provincial Administration responsible for investigating
fraud and
corruption. He was charged with a contravention of s 1(1)(b) of the
Corruption Act, 94 of 1992, the allegation being
that on that day at
or near the Viljoenskroon road in that district he accepted an amount
of R300 as a bribe from a certain Inspector
Wilbers as an inducement
not to issue a traffic summons to her.
[2] The
appellant pleaded not guilty at his trial in the magistrate’s
court. His legal representative placed on record, as
matters not in
dispute, that, on the day in question, the appellant had been one of
a group of officers manning a speed trap; that
he stopped a vehicle
driven by the complainant because of the excessive speed at which it
was travelling; that the complainant
asked him not to prosecute her
but he refused and the complainant thereupon pushed an amount of R300
into the pocket of his trousers
and drove off.
[3] At
the trial the prosecution called the complainant to give evidence as
well as three other witnesses who were involved in the
setting of the
corruption trap and the arrest of the appellant. The appellant
testified in his own defence. He was convicted as
charged and
sentenced to two years imprisonment in terms of
s 276(1)(i)
of the
Criminal Procedure Act 51 of 1977
.
[4] An
appeal to the Full Court of the Free State Provincial Division (Van
der Merwe and H M Musi JJ) against his conviction was
dismissed. That
court granted leave to appeal to this Court.
[5] It
will be unnecessary to discuss the evidence of the appellant or its
merits
vis-à-vis
that
of the complainant. His counsel conceded in argument that the
appellant’s version of events had rightly been disbelieved
by
the magistrate. Suffice it to say that the concession was
well-considered. Counsel therefore approached the appeal on the
assumption
that the complainant’s description of events was
substantially accurate although, as he emphasised, she had admitted
that
her recollection was not necessarily full or flawless.
[6] It
was common cause that the appellant had been ensnared in a trap used
to detect, investigate or uncover the commission of
an offence within
the ambit of s 252A(1) of the Act.
1
[7] The
thrust of the argument presented to us was that the complainant’s
own account demonstrated that her conduct had gone
beyond the
provision of an opportunity to commit the offence of corruption. This
had two legal consequences: either the evidence
obtained by the state
in consequence of entrapping the appellant should have been ruled
inadmissible at the trial – at least
in the first stage, as s
252A(1) of the Act provides – or the use of and reliance on
such evidence resulted in the appellant
not receiving the fair trial
which was his constitutional entitlement.
[8] Some
point was made in the heads of argument about the magistrate’s
refusal to hold a trial-within-a-trial when his legal
representative
twice objected to the admissibility of the trap evidence and asked
that admissibility be tried as a separated issue.
During argument
reliance on that ground was all but abandoned. Such uncertainty as
remains should be dispersed. Our courts have
long accepted that it is
both desirable and necessary, to the end of achieving a fair trial,
to try issues of the voluntariness
of extra-curial statements or
conduct of accused persons separate from the merits of the case:
R
v Dunga
1934
AD 223.
When a ruling is made without hearing the defence evidence,
the defence is entitled to withhold its further testimony where that
could only be given on terms which may prejudice the trial of the
merits:
ibid
at
227. See also
S
v de Vries
1989
(1) SA 228
(A) at 232G-234E,
S
v Yengeni and others
(3)
1991 (1) SACR 387
(c) at 391b-392a,
Ntzweli
v S
[2001]
2 All SA 184
(c) at 187f-189g. In general terms section 252A is also
concerned with voluntariness of conduct as the measure of whether an
accused’s
conduct is induced by the circumstances of or methods
employed in the operation rather than resulting from his own desire
to commit
the offence. In principle I do not think that there is any
material distinction between the accepted categories of cases where
the separation of admissibility and merits is insisted upon and s
252A. Both enquiries seem to take account of and provide for the
same
inherent risks, such as discouraging an accused from speaking openly
when the trial of the merits may be influenced if he
does so and the
likelihood that failure to deal with admissibility properly and
promptly will leave an accused in limbo in relation
to the vital
questions of whether he needs to testify and the substance of the
case that he has to answer. So also the prosecutor
must know the
limits of his case both for the purpose of leading further evidence
and for cross-examination of the accused. For
all these reasons the
holding of a trial-within-a-trial will usually be appropriate to
decide admissibility under s 252A.
[9] But,
as counsel appreciated, s 252A(7) provides implied legislative
sanction for a trial court to exercise a judicial discretion
on
whether to try admissibility as a separate issue. There is a
recognition that there may be cases where the interest of the accused
will not be prejudiced by either the making of a ruling without
hearing evidence or, even, delaying a ruling until the conclusion
of
the case. In the present instance the appellant’s legal
representative, called upon at the trial to furnish the grounds
on
which he would challenge the admissibility of the trap evidence –
as he was obliged by the first proviso to s 252A(6)
to do –
limited himself solely to an alleged non-compliance with the
instructions or guidelines issued by the Director of
Public
Prosecutions to the law enforcement authorities in the Free State.
This, in effect reduced the scope of the enquiry to the
matters
referred to in s 252(2)(a), a very narrow factual question, about
which Du Toit
et
al
,
Commentary on the
Criminal Procedure Act, 24-134, remark
that the
sub-section (and ss (2)(b) and (c)) ‘would seem to have no
bearing on whether the conduct of the trap goes beyond
providing an
opportunity to commit an offence or not’. It is unnecessary to
debate the broad justification for that doubt.
What seems clear is
that so limited an issue does not, prima facie, bear on the
voluntariness of the appellant’s commission
of the offence. The
issue was therefore one which, if left over for determination at the
end of the case, was most unlikely to
result in unfairness to the
accused in the conduct of the trial. The magistrate’s refusal
to hold a compartmentalized hearing
was therefore not a misdirection.
[10] It
is true that the appellant’s case as finally argued before the
magistrate was not confined to ss (2)(a). Reliance
was also placed on
matters relevant to admissibility which are covered in ss (2)(d),
(e), (f) and (e) in support of the submission
that Wilbers’s
conduct went beyond the creating of an opportunity. Given that the
onus rests on the state to establish admissibility
and that it must
presumably proceed to do so by reference to the grounds of objection
voiced by the defence under ss (6), I have
some doubt as to whether
the magistrate was, as to admissibility, not initially confined to
the stated ground alone, leaving any
objections subsequently raised
to be considered as reasons for refusing to allow evidence already
tendered to stand, should he
conclude, upon a consideration of the
totality of such additional objections, that the evidence was
obtained in an improper or
unfair manner and that its admission would
render the trial unfair or would otherwise be detrimental to the
administration of justice
(ss (3)).
[11] Be
that as it may, the reliance by appellant’s counsel both on
non-compliance with the guidelines and on conduct said
to fall within
the other identified subsections of ss (2), must fail on the facts.
[12] The
state proved in evidence the terms of an authority for the carrying
out of trapping operations issued over the signature
of a
Deputy-Director of Public Prosecutions in the Free State. It was not
possible to conclude that the operation in question fell
within the
terms of that authority, but, if it did, there were also substantial
deviations from the apparent level of prima facie
proof for which it
called concerning the geographical location of the supposed offences
and the identity of the suspects. However,
as supposed by the learned
authors, such deviations bore no apparent causal connection between
the conduct of the trap and the
commission of the offence. They were,
in short, irrelevant to the case before the court.
[13] The
grounds of unfairness said to arise from the matters referred to in
ss (2)(d), (e), (f) and (g) can be disposed by considering
the
evidence of Wilbers.
[14] Wilbers
testified that she was not a part of the crime investigation unit.
She was brought in as an independent witness who
would serve as the
target of any corrupt practice. She was equipped with marked money
and expressly warned not to solicit an offence
by, for example,
offering money of her own accord. When the appellant, who was manning
a speed trap, stopped her vehicle, he asked
whether she wanted to see
the proof that she had driven through it at 150km per hour. Wilbers
replied that she knew she had driven
a bit fast and did not need to
see the reading. She remained seated in her vehicle. The appellant
asked, she said, if she knew
what the fine was for travelling so
fast. He was in possession of a book which he opened to show her the
scale of fines and calculated
her fine at R900. As he was ostensibly
busy writing the ticket Wilbers asked whether he was really going to
fine her. His response
was to ask what she wanted to do. He went on
writing. At his request Wilbers produced her licence. She again asked
if he intended
to write out a traffic fine. Once more the appellant
said he did, but ‘what did I want to do about it?’. She
answered
that he knew better than she did. She asked whether she
could pay the fine at once. The appellant enquired how much money she
had
with her. She took out her identity book, removed the bank notes
from between its pages, counted them and told the appellant that
she
had only R300. He said that was alright. But before accepting the
money he asked if she would go to the police and cause him
trouble if
he took it. Wilbers’s response was that
she
would be in trouble (‘my husband will murder me’) if she
went home with a ticket, so she would rather pay R300 now
than R900
later.
[15] Wilbers
gave the appellant the folded bank notes. He did not count them but
immediately placed them under his note book. As
he took the money he
was standing with his back to two of his colleagues who were some 10
metres away. Seeing him apparently still
writing Wilbers asked
whether, despite receiving the money, the appellant intended to issue
a ticket, to which he replied that
he must appear to be writing so
that his colleagues would not notice him take the money. He then said
everything was in order and
she could go. Before she drove away he
asked a second time whether she would cause trouble for him. She
replied ‘No’.
As she moved off she looked in her left
external mirror and saw the appellant, who was walking away, push the
money into his left
trouser pocket.
[16] Was
the acceptance of this evidence unfair to the appellant? Did the
conduct of the trap have the effect of inducing the appellant
to act
in a manner that he would otherwise have not? Counsel submitted that
both questions result in affirmative answers. Particularly
marked
(and reprehensible) he argued was her repeated prompting of the
appellant (‘are you really going to issue a ticket
to me’)
and the resort to grossly emotive consequences (‘murder’)
if he should fail to assist her. I cannot agree.
As the section
contemplates, a trap may usefully be employed to set up a situation
of which a corruptly-inclined official may take
advantage. The
provision of an attractive opportunity is the essence of a successful
trap and the legislature recognises that fact
in
s 252A.
It draws the
line however at conduct which literally or figuratively lays a bait
for the unsuspecting official by encouraging the
commission of a
crime. But the complainant’s behaviour was essentially neutral.
She did not tempt, entice or suggest any
unlawful line of conduct. A
tearful motorist pleading for mercy may provide generous opportunity
for the unscrupulous official
on the look-out for such occasion, but
it has no logical or necessary connection with the criminal conduct
(essentially the soliciting
of a bribe) and cannot be used as an
excuse under the section to avoid the consequences of his or her own
fault. On the contrary,
the evidence for the prosecution established
that a traffic policeman in the position of the appellant has a
discretion which he
may invoke in appropriate cases (such as an
apparently merited plea for mercy) not to proceed with the issuing of
a fine without
prejudicing his employment.
[17] As
to whether there existed any suspicion that the appellant had
committed any similar offence
(ss 2(e))
, there clearly was not. But
that does not automatically mean that he was unfairly treated. The
trap was not directed against the
appellant personally but rather
against whosoever happened to be manning the speed trap at the
particular time. As the evidence
of the complainant shows, the
appellant was someone who was prepared to bend the rules if the
opportunity presented itself and
for that he has only himself to
blame.
[18] The
appeal is dismissed.
__________________
J
A HEHER
JUDGE
OF APPEAL
A
PPEARANCES:
FOR
APPELLANT:
P J Heymans
ATTORNEYS: Du
Randt & Louw
KROONSTAD
Rosendorff
Reitz Barry
BLOEMFONTEIN
FOR
RESPONDENT:
D W Bontes
ATTORNEYS
: Director
of Public Prosecutions
BLOEMFONTEIN
1
For
convenience in access to this and other references in this judgment
I quote
s 252A
in full:
‘
252A Authority
to make use of traps and undercover operations and admissibility of
evidence so obtained
(1)
Any law enforcement officer, official of the State or any other
person authorised thereto for such purpose (hereinafter referred
to
in this section as an official or his or her agent) may make use of
a trap or engage in an undercover operation in order to
detect,
investigate or uncover the commission of an offence, or to prevent
the commission of any offence, and the evidence so
obtained shall be
admissible if that conduct does not go beyond providing an
opportunity to commit an offence: Provided that
where the conduct
goes beyond providing an opportunity to commit an offence a court
may admit evidence so obtained subject to
subsection (3).
(2)
In considering the question whether the conduct goes beyond
providing an opportunity to commit an offence, the court shall
have
regard to the following factors:
(a)
Whether,
prior to the setting of a trap or the use of an undercover
operation, approval, if it was required, was obtained from
the
attorney-general to engage such investigation methods and the extent
to which the instructions or guidelines issued by the
attorney-general were adhered to;
(b)
the
nature of the offence under investigation, including─
(i) whether the
security of the State, the safety of the public, the maintenance of
public order or the national economy is seriously
threatened
thereby;
(ii) the
prevalence of the offence in the area concerned; and
(iii) the
seriousness of such offence;
(c)
the
availability of other techniques for the detection, investigation or
uncovering of the commission of the offence or the prevention
thereof in the particular circumstances of the case and in the area
concerned;
(d)
whether
an average person who was in the position of the accused, would have
been induced into the commission of an offence by
the kind of
conduct employed by the official or his or her agent concerned;
(e)
the
degree of persistence and number of attempts made by the official or
his or her agent before the accused succumbed and committed
the
offence;
(f)
the
type of inducement used, including the degree of deceit, trickery,
misrepresentation or reward;
(g)
the
timing of the conduct, in particular whether the official or his or
her agent instigated the commission of the offence or
became
involved in an existing unlawful activity;
(h)
whether
the conduct involved an exploitation of human characteristics such
as emotions, sympathy or friendship or an exploitation
of the
accused’s personal, professional or economic circumstances in
order to increase the probability of the commission
of the offence;
(i)
whether
the official or his or her agent has exploited a particular
vulnerability of the accused such as a mental handicap or
a
substance addiction;
(j)
the
proportionality between the involvement of the official or his or
her agent as compared to that of the accused, including
an
assessment of the extent of the harm caused or risked by the
official or his or her agent as compared to that of the accused,
and
the commission of any illegal acts by the official or his or her
agent;
(k)
any
threats, implied or expressed, by the official or his or her agent
against the accused;
(l)
whether,
before the trap was set or the undercover operation was used, there
existed any suspicion, entertained upon reasonable
grounds, that the
accused had committed an offence similar to that to which the charge
relates;
(m)
whether
the official or his or her agent acted in good or bad faith; or
(n)
any
other factor which in the opinion of the court has a bearing on the
question.
(3)
(a)
If
a court in any criminal proceedings finds that in the setting of a
trap or the engaging in an undercover operation the conduct
goes
beyond providing an opportunity to commit an offence, the court may
refuse to allow such evidence to be tendered or may
refuse to allow
such evidence already tendered, to stand, if the evidence was
obtained in an improper or unfair manner and that
the admission of
such evidence would render the trial unfair or would otherwise be
detrimental to the administration of justice.
(b)
When
considering the admissibility of the evidence the court shall weigh
up the public interest against the personal interest
of the accused,
having regard to the following factors, if applicable:
(i) The
nature and seriousness of the offence, including─
(aa)
whether
it is of such a nature and of such an extent that the security of
the State, the safety of the public the maintenance
of public order
or the national economy is seriously threatened thereby;
(bb)
whether,
in the absence of the use of a trap or an undercover operation, it
would be difficult to detect, investigate, uncover
or prevent its
commission;
(cc)
whether
it is so frequently committed that special measures are required to
detect, investigate or uncover it or to prevent its
commission; or
(dd)
whether
it is so indecent or serious that the setting of a trap or the
engaging of an undercover operation was justified;
(ii) the
extent of the effect of the trap or undercover operation upon the
interests of the accused, if regard is had to─
the
deliberate disregard, if at all, of the accused’s rights or
any applicable legal and statutory requirements;
the
facility, or otherwise, with which such requirements could have
been complied with, having regard to the circumstances in
which the
offence was committed; or
the
prejudice to the accused resulting from any improper or unfair
conduct;
(iii) the
nature and seriousness of any infringement of any fundamental right
contained in the Constitution;
(iv) whether in
the setting of a trap or the engagement of an undercover operation
the means used was proportional to the seriousness
of the offence;
and
(v)
any
other factor which in the opinion of the court ought to be taken
into account.
(4)
An
attorney-general may issue general or specific guidelines regarding
the supervision and control of traps and undercover operations,
and
may require any official or his or her agent to obtain his or her
written approval in order to set a trap or to engage in
an
undercover operation at any place within his or her area of
jurisdiction, and in connection therewith to comply with his or
her
instructions, written or otherwise.
(5)
(a)
An
official or his or her agent who sets or participates in a trap or
an undercover operation to detect, investigate or uncover
or to
obtain evidence of or to prevent the commission of an offence, shall
not be criminally liable in respect of any act which
constitutes an
offence and which relates to the trap or undercover operation if it
was performed in good faith.
(b)
No
prosecution for an offence contemplated in paragraph
(a)
shall be instituted against an official or his or her agent without
the written authority of the attorney-general.
(6)
If at any stage of the proceedings the question is raised whether
evidence should be excluded in terms of subsection (3) the
burden of
proof to show, on a balance of probabilities, that the evidence is
admissible, shall rest on the prosecution: Provided
that the accused
shall furnish the grounds on which the admissibility of the evidence
is challenged: Provided further that if
the accused is not
represented the court shall raise the question of the admissibility
of the evidence.
(7)
The question whether evidence should be excluded in terms of
subsection (3) may, on application by the accused or the
prosecution,
or by order of the court of its own accord be
adjudicated as a separate issue in dispute.’