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[2017] ZAFSHC 161
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S v Frederiksen (33/2016) [2017] ZAFSHC 161; 2018 (1) SACR 29 (FB) (14 September 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES
Of
Interest to other Judges: YES
Circulate
to Magistrates: YES
Case
number: 33/2016
In
the matter between:
THE
STATE
and
PETER
FREDERIKSEN
Accused
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
14 SEPTEMBER 2017
[1]
The accused, Mr Peter Frederiksen, a Danish national, is charged with
58 counts, including inter alia rape, child pornography,
transgressions of the National Health Act, 61 o
f
2003 (“the Health Act”), fraud, transgressions of the
Firearms Control Act, 60 of 2000
and conspiracy to commit murder.
He pleaded not guilty to all charges. Counts 2, 3 and 4 were
withdrawn by the State
before pleading.
[2]
The State has closed its case and it is now my responsibility to
adjudicate an application in terms of s 174 of the Criminal
Procedure
Act, 51 of 1977 (‘the CPA”). The accused seeks his
discharge in respect of counts 8 to 17, to wit transgressions
of s 58
of the Health Act, counts 18 – 27, to wit transgressions of s
55 of the Health Act, count 54, being conspiracy to
commit murder and
count 61, to wit transgression of s 18 of the Riotous Assemblies Act,
17 of 1956 (“the Riots Act”).
[3]
The starting point must be the wording of s 174 of the CPA and
S
v Lubaxa
2001
(4) SA 1251
(SCA),
the
locus
classicus
on
applications of this nature. The relevant section reads
as follows:
“
Accused may be
discharged at close of case for prosecution
If, at the close of the
case for the prosecution at any trial, the court is of the opinion
that there is no evidence that the accused
committed the offence
referred to in the charge or any offence of which he may be convicted
on the charge, it may return a verdict
of not guilty.”
[4]
The following
dicta
in
Lubaxa
are relevant and I quote from paragraphs 10 and 19:
“
[10]
Section 174 of the Act repeats in all material respects the terms of
its predecessors in the 1917 and 1955 Criminal Codes.
It permits a
trial court to return a verdict of not guilty at the close of the
case for the prosecution if the court is of the
opinion that there is
no evidence (meaning evidence upon which a reasonable person might
convict:
S
v Khanyapa
1979
(1) SA 824
(A)
at 838F - G) that the accused committed the offence with which he is
charged, or an offence which is a competent verdict on
that
charge.
[19]
The right to be discharged at that stage of the trial does not
necessarily arise, in my view, from considerations relating
to the
burden of proof (or its concomitant, the presumption of innocence) or
the right of silence or the right not to testify,
but arguably from
a consideration that is of more general application. Clearly a
person ought not to be prosecuted in the
absence of a minimum of
evidence upon which he might be convicted, merely in the expectation
that at some stage he might incriminate
himself. That is recognised
by the common-law principle that there should be 'reasonable and
probable' cause to believe that the
accused is guilty of an offence
before a prosecution is initiated (
Beckenstrater
v Rottcher and Theunissen
1955
(1) SA 129
(A)
at 135C - E), and the constitutional protection afforded to dignity
and personal freedom (s 10 and s 12) seems to reinforce it.
It ought
to follow that if a prosecution is not to be commenced without that
minimum of evidence, so too should it cease when
the evidence
finally falls below that threshold. That will pre-eminently be so
where the prosecution has exhausted the evidence
and a conviction is
no longer possible except by self-incrimination. A fair trial, in my
view, would at that stage be stopped,
for it threatens thereafter to
infringe other constitutional rights protected by s 10 and s
12.
[5]
Counts 8 to 17 and 18 to 27 are related in that it is the State’s
case that transgressions of the Health Act occurred
in respect of
certain identified as well as unidentified female persons. The
first group of counts relate to the removal
by the accused of human
tissue from living persons, to wit the particular females mentioned,
without their written consent and
outside a hospital or an authorised
institution over the period January 2010 to June 2015. Reliance
is placed by the State
on s 58 of the Health Act. The second
group of counts, to wit 18 to 27, applies to the same individuals,
some identified
and others not, as is the case
supra.
Here
,
reliance
is placed on s 55, read with s 56 of the Health Act, insofar as human
tissue were removed from the female persons without
their written
consent and not done in accordance with the prescribed manner and
procedures.
[6]
Accused’s [...], the Lesotho citizen, Ms A. M. M. (referred to
throughout the hearing as “T.”) was one of
the alleged
victims, but she sadly passed away on 21 October 2015, a month after
accused’s arrest. Three affidavits
deposed to be her were
admitted in terms of s 220 of the CPA, although the contents thereof
are hearsay. The only other person
who testified in this regard
is the witness, Ms P M, whose identity is withheld insofar as she
testified
in
camera
.
The procedure in terms whereof accused cut out (also referred to as
harvested) the witness’ clitoris was recorded
on videotape.
The recording was shown in court and handed in as exhibit. The
accused’s bedroom of his house in
Langenhoven Park,
Bloemfontein served as the
“
theatre”
.
[7]
Accused admitted to cutting and/or piercing T.’s private parts
on four occasions. His diaries confirm that he made
notes of
the various circumcisions,
inter
alia
pertaining to a certain M. (who also passed away) and M. (who was
unwilling to testify according to Ms Bester for the State).
The
human tissue were stored in accused’s freezer and eventually
seized by the SAPS and subjected to DNA analysis.
The different
human tissue were separately packed and identified with the names of
the
“
donors”
and
other relevant information. Ms PM hesitantly agreed to be
circumcised for which she received payment in the amount of
R2 500.00, although it is denied by accused that payment was
made for that purpose. T.’s version (
ex
facie
her
statements) is that she was drugged by accused and/or under the
influence of alcohol during the procedures on her and that she
did
not consent. This is denied by the accused. Bearing in
mind the outcome of the s 174 application, it will serve
no purpose
to deal any further with the evidence.
[8]
Right from the start of the proceedings I had doubts whether accused
could be convicted on these counts, even if all facts as
relied upon
by the State in the summary of substantial facts were proven.
My view, which I articulated to the legal representatives
in
chambers, was and still is that the legislature failed to create
criminal offences in respect of these transgressions.
I shall
elaborate
infra.
[9]
The Health Act
provides
“
a framework for a
structured uniform health system within the Republic, taking into
account the obligations imposed by the Constitution
and other laws on
the national, provincial and local governments with regard to health
services; and to provide for matters connected
therewith”.
It appears
from the preamble that the legislature intended to establish a
suitable health system, bearing in mind the imbalances
of the past
and socio-economic injustices.
The
objects of the Act, as set out is s 3, are to regulate national
health and to provide uniformity in respect of health services.
This context must be considered when the Health Act is interpreted
and specifically ss 55 and 58 thereof.
[10]
Section 55 of the Health Act reads as follows:
“
55
Removal of tissue, blood, blood products or gametes from living
persons
A person may not remove
tissue, blood, a blood product or gametes from the body of another
living person for the purpose referred
to in section 56 unless it is
done-
(a)
with
the written consent of the person from whom the tissue, blood, blood
product or gametes are removed granted in the prescribed
manner; and
(b)
in
accordance with prescribed conditions”.
According
to the indictment this section must be read with s 56 which provides
that tissue, gametes, blood or blood products
withdrawn from
living persons may only be used for medical and dental purposes as
may be prescribed.
Section
58 of the Health Act reads as follows:
“
58
Removal and transplantation of human tissue in hospital or authorised
institution
(1) A person may not
remove tissue from a living person for transplantation in another
living person or carry out the transplantation
of such tissue except-
(a)
in
a hospital or an authorised institution; and
(b)
on
the written authority of-
(i) the
medical practitioner in charge of clinical services in that hospital
or authorised institution, or any
other medical practitioner
authorised by him or her; or
(ii) in
the case where there is no medical practitioner in charge of the
clinical services at that hospital or
authorised institution, a
medical practitioner authorised thereto by the person in charge of
the hospital or authorised institution.
(2) The medical
practitioner contemplated in subsection (1)
(b)
may not participate in a transplant for which he or she has granted
authorisation in terms of that subsection”.
I
accept that the legislature inserted legal and moral norms, but no
criminal offences were created in either of the above sections,
unlike for example in ss 53 and 60. However, criminal offences
are created in s 89 as will appear from the quotation
infra,
but none thereof relate to transgressions of ss 55 and 58.
Section 89 reads as follows:
“
89
Offences and penalties
(1) A person is guilty of
an offence if he or she-
(a)
obstructs
or hinders a health officer or an inspector who is performing a
function or any other person rendering assistance or support
to a
health officer or an inspector under this Act;
(b)
refuses
to provide a health officer or an inspector with such information as
that person is required to provide under this Act;
(c)
knowingly
gives false or misleading information to a health officer or an
inspector;
(d)
unlawfully
prevents the owner of any premises or health establishment, or a
person working for the owner, from entering the premises
or health
establishment in order to comply with a requirement of this Act;
(e)
impersonates
a health officer or an inspector;
(f)
fails
to comply with a compliance notice issued to him or her by a health
officer or an inspector in terms of
this Act;
(g)
discloses
any information acquired in the performance of any function in terms
of this Act which relates to the financial or business
affairs of any
person, to any other person, except if-
(i) such
other person requires that information in order to perform any
function in terms of this Act;
(ii) the
disclosure is ordered by a court of law; or
(iii) the
disclosure is in compliance with the provisions of any law; or
(h)
interferes
with, hinders or obstructs the Ombud or any other person rendering
assistance or support to the Ombud when he or she
is performing or
exercising a function or power under this Act.
(2) Any person convicted
of an offence in terms of subsection (1) is liable on conviction to a
fine or to imprisonment for a period
not exceeding 10 years or to
both a fine and such imprisonment”.
[11]
The Human Tissue Act, 65 of 1983 was repealed by the Health Act, some
sections thereof earlier than others. For purposes
hereof s 55
of the Health Act came into operation on 17 May 2010, s 58 on 1 March
2012 and s 89 on 2 September 2013. Unlike
the Health Act, the
repealed Human Tissue Act created offences and penalties in respect
of the acquiring, using, supplying or removal
of any tissue from the
body of a living person for any purpose other than permitted in the
Act. I refer to the repealed ss
23 and 34. For an unknown
reason the legislature, supposedly being well aware of the offences
created in the former Act,
failed to create criminal offences in the
Health Act for similar transgressions.
[12]
Section 35(3) of our Constitution stipulates as follows:
“
(3)
Every accused person has a right to a fair trial, which includes the
right-
(l)
not
to be convicted for an act
or omission that was
not
an offence
under
either national or international law
at
the time it was committed
or omitted;
(m)
…….
(n)
to
the
benefit
of the least severe of the prescribed punishments
if the prescribed
punishment
for the offence
has
been changed
between the time that the offence was committed and the time of
sentencing…”
(emphasis
added)
[13]
In
Cool
Ideas v Hubbard
2014
(4) SA 474
(CC) the principles applicable to statutory interpretation
were summarised as follows:
“
[28]
A fundamental tenet of statutory interpretation is that the words in
a statute must be given their ordinary grammatical meaning,
unless to
do so would result in an absurdity.
There
are three important interrelated riders to this general
principle, namely:
(a)
that
statutory provisions should always be interpreted purposively;
(b)
the
relevant statutory provision must be properly contextualised;
and
(c)
all
statutes must be construed consistently with the Constitution, that
is, where reasonably possible, legislative provisions
ought to be
interpreted to preserve their constitutional validity. This proviso
to the general principle is closely related to
the purposive approach
referred to in
(a)
.”
[14]
In
Director of Public Prosecutions, Western Cape v Prins and
Others
2012 (2) SACR 183
(SCA) the principle of legality was
considered and I quote:
“
The principle
of legality
[6] I have already
outlined the importance of this case from the perspective of the
right of all people, but in particular women
and children, who are
the most vulnerable and the most affected, to be protected against
sexual violence. But that alone cannot
be decisive of this appeal.
The reason is that the decision by the high court flows from a
constitutional principle that is
equally fundamental, namely the
principle of legality. The power of the state to prosecute people and
the power of courts to try,
convict and sentence offenders are public
powers of the greatest importance. In the history of the struggle for
basic human rights
the abuse of the criminal process by governments
to suppress dissent and stifle the views of those opposed to the
regime in power
is notorious. One can trace this in the history
of many countries, but our own experience suffices to underline the
fact
that abuse of power, including abuse of the criminal process,
lies at the heart of tyranny and oppression. In the light of
that history our Constitution demands that the ‘
Legislature
and Executive
in every sphere are constrained by the principle that they
may
exercise no power and perform no function beyond that conferred upon
them by law’
.
The
courts, as the guardians of the Constitution, are likewise
constrained
…
[8]
The
two maxims (
the
court referred to
nullum
crimen sine lege
and
nulla poena sine lege
)
are, within their respective spheres, reflections of the principle of
legality. In
S
v Dodo
,
Ackermann J summed up their effect, insofar as the imposition of
sentences for crimes is concerned, as
follows:
'(T)he
nature and range of any punishment, whether determinate or
indeterminate, has to be founded in the common or statute law;
the
principle of legality
nulla poena sine lege
requires this.'
In other words, the
imposition of a sentence by a court must have its justification
in either the common law or statute. In
the absence of a provision
that empowers the court to impose a sentence it is powerless to do
so. This is not a new principle created
by the Constitution.
The courts' sentencing
powers
[10] Conduct is criminal
either under the common law or by statute. In the latter case it is
usual for the legislature both to define
the criminal conduct and to
specify the penalty or range of penalties that may be imposed by
courts trying the statutory offence.
Where that occurs the powers
of the court in regard to sentence are, generally speaking, clear,
although problems can
arise……
[15]
…
.
One can readily see that, when a court is confronted with the
question whether a statutory provision prohibiting particular conduct
is a crime, the failure of the legislature to attach a penalty to
non-compliance is an important factor in determining whether
a crime
was constituted thereby. This was the determining factor in this
court in
R
v Zinn
,
where
it was held that a
Besluit
by the Transvaal Volksraad, prohibiting the use or occupation of land
in townships by 'coloured' people, did not, in the absence
of a
criminal penalty, create a criminal offence. Greenberg JA, who gave
the judgment of the court, carefully refrained from deciding
whether,
in the absence of both an express statement of criminality and a
penalty, it was permissible for a court to construe
a legislative
prohibition on particular conduct as creating a crime by necessary
implication.
[16] That issue arose in
the controversial decision in
R
v Forlee
supra
[1917
TPD 52]
, which
concerned a statute that prohibited the sale of opium, save by a
pharmacist under a prescription, but did not say that
such a sale was
a crime, nor provided for a penalty for making such a sale. Mason J
pointed out that the sale of opium in such
circumstances had always
been a crime and that the possession of opium, other than by a
pharmacist or under a prescription, was
said specifically to be a
crime. He concluded that the absence of a penalty did not mean
that the sale of opium was not an
offence punishable by the courts
within their ordinary powers. I agree with Greenberg JA in
Zinn
's
case, supra, that:
'The
final conclusion, in
Rex v Forlee (supra
), that the enactment
constituted an offence was based on the broad ground that the Act in
question (viz., the sale of opium)
was expressly prohibited in the
public interest and with the evident intention of constituting an
offence.'
The approach of the court
was that an inference of an intention to criminalise the prohibited
conduct could be drawn from the language
of the statute even though
there was no clear statement to that effect.
[17] The decision in
R
v Forlee
has been the subject of considerable academic, and some
judicial, criticism on the basis that to hold that a statute creates
a crime by necessary implication infringes the principle of
legality
.
However, it is unnecessary to decide whether the criticism is
justified, because that question does not arise in the present
case.
…. Before turning to address that issue I will briefly
indicate why it is clear that the Act creates criminal offences
in
chs 2, 3 and 4 thereof.”
(footnotes
omitted and emphasis added) There is no doubt that
Prins
is
distinguishable from the facts
in
casu.
There,
punishment was not prescribed, but criminal offences were created,
which is clearly not the situation here. The SCA
decided not to
consider the correctness of the
Forlee
judgment.
In my respectful opinion that judgment is contrary to the principle
of legality and clearly wrong, but in any event,
cannot be regarded
as the law in light of our constitutional dispensation and s 35(3)(l)
of the Constitution in particular.
[15]
In
Masiya
v DPP, Pretoria and Another
2007
(2) SACR 435
(CC) the court developed the common law definition of
rape by extending it to non-consensual anal penetration of females.
Snyman C R,
Criminal
Law
5
th
ed at p 46 criticised the judgment severely as, according to him, it
undermines the principle of legality. He even referred
thereto
as “
a
fly in the ointment
”
.
Notwithstanding Snyman’s criticism it is apparent that the
Constitutional Court accepted that it would be unfair to
allow the
extension of the crime to have retrospective application.
Consequently Mr Masiya, who was convicted in the High
Court of rape
on the basis of the anal penetration of a female, succeeded with his
appeal and the conviction was replaced with
a conviction of indecent
assault. The court concluded as follows:
“
[51]
……T
he
question is whether when developing the common law it is possible to
do so prospectively only. In my view, it is. In this case,
if the
definition of rape were to be developed retrospectively it would
offend the constitutional principle of legality as
I have
demonstrated above. On the other hand, if we were to accept that the
principle of legality is a bar to the development of
the common law,
the Courts could never develop the common law of crimes at all. In my
view, such a conclusion would undermine the
principles of our
Constitution which require the courts to ensure that the common law
is infused with the spirit, purport and objects
of the Constitution.
The impasse can be avoided by accepting that in these circumstances
it is appropriate to develop the
law prospectively only. I accept
that it is only in rare cases that it will be appropriate to develop
the common law with prospective
effect only, as the Law Lords
suggested in the
Brockhill
Prison
decision (
supra
).
However, in my view this is one of those cases where fairness to an
accused requires that the development not apply to him, but
only to
those
cases which arise after judgment in this matter has been handed down.
[52] One of the central
tenets underlying the common-law understanding of legality is that of
foreseeability - that the rules of
criminal law are clear and precise
so that an individual may easily behave in a manner that avoids
committing crimes……
[54] Section 35(3)
(l)
of the Constitution confirms a long-standing principle of the common
law that provides that accused persons may not be convicted
of
offences where the conduct for which they are charged did not
constitute an offence at the time it was committed. Although at
first
blush this provision might not seem to be implicated by finding Mr
Masiya guilty of rape in this case, because the act he
committed
did constitute an offence both under national law and
international law at the time he committed it, in my view,
the
jurisprudence of this Court would suggest otherwise.
[55] In the first case in
which the Court addressed s 35(3)
(l)
and its counterpart in
respect of sentence, s 35(3)
(n)
,
Veldman v Director
of
Public Prosecutions, Witwatersrand Local Division,
the Court held that the principle of legality is central to
the rule of law under our Constitution. That case concerned
the
question of whether, where the sentencing jurisdiction of a court had
been increased after an accused had pleaded, the accused
could be
sentenced in terms of the increased jurisdiction. The Court held it
could not. The Court observed that once an accused
has pleaded, the
constitutionally enshrined principle of legality requires that
the sentencing jurisdiction of a court cannot
be varied to the
detriment of the accused, even where it was clear that the increased
sentence was a permissible sentence for the
charge involved. The
Court held that:
'To
retrospectively apply a new law, such as s 92(1)
(a)
, during
the course of the trial, and thereby to expose an accused person
to a more severe sentence, undermines the rule of
law and violates an
accused person's right to a fair trial under s 35(3) of the
Constitution.'
[56] The strong view of
legality adopted in
Veldman (supra
) suggests that it would be
unfair to convict Mr Masiya of an offence in circumstances where
the conduct in question did not
constitute the offence at the time of
the commission. I conclude so despite the fact that his conduct is a
crime that evokes exceptionally
strong emotions from many quarters of
society. However, a development that is necessary to clarify the law
should not be to the
detriment of the accused person concerned unless
he was aware of the nature of the criminality of his act. In this
case, it can hardly
be said that Mr Masiya was indeed aware,
foresaw or ought reasonably to have foreseen that his act might
constitute rape as the
magistrate appears to suggest. The
parameters of the trial were known to all parties before the Court
and the trial was prosecuted,
pleaded and defended on those bases. It
follows therefore that he cannot and should not bear adverse
consequences of the ambiguity
created by the law as at the time of
conviction.
[57] The evidence adduced
at the trial established that Mr Masiya was guilty of indecent
assault. To convict him of rape would be
in violation of his right as
envisaged in s 35(3)
(l)
of the Constitution. I
conclude therefore that the developed definition should not
apply to Mr Masiya.”
[16]
Masiya’s
judgment
is instructive insofar as it explains the powers of courts to extend
common law crimes.
In
casu
we
have a totally different scenario insofar as statutory provisions
have to be interpreted in line with the established principles
inter
alia
enunciated
in
Cool
Idea supra
.
If I consider the clear and unambiguous language of the legislature
together with the context in which the Health Act was
drafted and
eventually promulgated, as well as the background circumstances, I
have no doubt that I cannot interpret the Act to
the extent that
criminal offences have been created for transgressing the provisions
of ss 55 and 58. This court cannot venture
into the arena of
the legislature by creating criminal offences merely because it might
be of the view that a
casus
omissus
has
occurred. The legislature must consider this judgment and
decide how to approach this thorny issue. Ms Bester, an
experienced and senior member of the DPP’s office in
Bloemfontein, conceded that the State cannot obtain convictions in
respect of the particular counts. Consequently, the accused’s
application in respect of counts 8 to 27 should succeed.
[17]
The next issue is the application for discharge in respect of count
54, the conspiracy charge. Mr Bruwer made a
valiant
effort in relying on
S
v Basson
2007
(1) SACR 566
(CC) to persuade me to discharge the accused. He
emphasised that many of the activities relating to the conspiracy
took place
in Lesotho and also the killing itself. I do not
agree. It is necessary to consider the relevant principles set
out
in
Basson
and
therefore I intend to quote several passages before coming to a
conclusion. Before I do this, it is apposite to mention
that
the State alleges in the indictment that on or about 17 September to
20 October 2015 and at or near Bloemfontein the accused
unlawfully
and intentionally conspired with Mohlatsi Moqeti and others to commit
an offence, to wit to kill A. M. M., a female
person. It is
common cause that this person is T., the accused’s [...].
It is also common cause that she died
of gun wounds in Lesotho on 21
October 2015
.
[18]
The State relies on the contravention of s 18(2) of the Riotous
Assemblies Act, 17 of 1956 which reads as follows:
“
18
Attempt, conspiracy and inducing another person to commit offence
(1)
…
..
(2)
Any person who-
(a)
conspires
with any other person to aid or procure the commission of or to
commit; or
(b)
incites,
instigates, commands, or procures any other person to commit, any
offence, whether at common law or against a statute or
statutory
regulation, shall be guilty of an offence and liable on conviction to
the punishment to which a person convicted of actually
committing
that offence would be liable.”
[19]
Mr Moqeti, a Lesotho citizen, is at present a sentenced prisoner.
He was warned as a s 204 witness. He is
a single witness,
a co-perpetrator and some of his evidence is hearsay although this
was admitted by the accused to be admissible.
On his version he
and accused colluded whilst in Grootvlei Correctional Centre and when
they were both awaiting trial. Accused
denies any collusion or
conspiracy. Accused was arrested on 17 September 2015 and he
found Moqeti there, a paraplegic in
a wheel chair. On 6 October
2015 Moqeti was released on bail, whilst accused remained
incarcerated.
[20]
It is not my intention to summarise the evidence of Moqeti in any
detail, but it is deemed necessary to mention the following,
bearing
in mind Mr Bruwer’s attack. The two role players
exchanged cell phone numbers when they met at the Magistrates’
Court cells. Hereafter a discussion took place at the hospital
section of Grootvlei. Accused stated that his [...],
a witness,
caused his detention and that he was looking for people to kill this
witness. Accused explained that his employees
at his
Bloemfontein and Lesotho businesses would be able to assist Moqeti
and accused would arrange with them for meetings to be
set up once
Moqeti is out on bail. Accused agreed to pay Moqeti R120 000.00
for completing the task of killing the [...].
Meshack, accused
manager at Impala Arms in Maseru, Lesotho, would point out the
accused’s [...] and residential address to
the hitman/men.
He was also the person that would be responsible for payment in
accordance with accused’s instructions.
After his release
on bail, accused kept on calling Moqeti as he was anxious that the
task be completed. As agreed R10 000.00
was paid as a deposit to
Moqeti’s contact in Lesotho, one Paul, of which Moqeti received
R2 000.00. Paul informed
Moqeti that accused’s [...]
was shot four times and that she succumbed. Accused
arranged payment of the
balance which was done by Meshack. Paul
and Moqeti met in Ladybrand after the killing and Moqeti received his
portion of
the agreed sum, to wit R30 000.00. Apparently,
one Selome accompanied Paul when T. was shot and killed.
[21]
In
Basson
supra
the
Constitutional Court upheld an appeal by the State against the order
of Hartzenberg J in the High Court, squashing six counts
in respect
of conspiracy on the basis that the acts to be undertaken in
accordance with the conspiracy would be executed outside
the borders
of South Africa. The court found at para [207] that one of the
purposes of s 18(2) of the Riots Act was to fill
a gap in the common
law and to make conspiracy an offence. It continues at para
[209] as follows:
“
[209] A criminal
conspiracy is an offence whether it is implemented or not. It follows
that the failure of a conspiracy is not relevant
to the conspirators'
guilt. The judgment
[of
Hartzenberg J which the Constitutional Court set aside]
must
therefore be understood as meaning that s 18(2) applies to
conspiracies to commit crimes, which if committed, would be
justiciable
in South Africa”.
The
paragraph must be seen in proper perspective. The
Constitutional Court found at para [247] that the High Court erred in
squashing the particular counts on the grounds that they did not
disclose an offence.
It
is an accepted principle that our courts do not exercise
jurisdiction, as a general proposition, over persons who commit
crimes
in other countries. However, conspiracy is a distinct
crime and must be distinguished from the envisaged crime. As
stated in
Basson
at para [245]:
“
The
conspiracy with which the respondent was charged was entered into in
South Africa. [
the
envisaged crimes were to be committed in South West Africa, now
Namibia, London, Mozambique and Swaziland
]
If, as we have held, it falls within s 18(2) of the Riotous
Assemblies Act it constituted an offence whether or not the
contemplated crimes were carried out or not.”
[22]
I am of the view that it will have grave consequences for South
Africa’s international standing if we allow our citizens
and
others to conspire in South Africa to commit crimes in neighbouring
or other countries without sanction. As stated in
Basson
at para [238]:
“
We
were not referred to a decided case in South Africa which has held
that s 18(2) of the Riotous Assemblies Act requires the crimes
to be
committed in terms of the conspiracy to be justiciable in South
Africa…The mere fact that it
[the
common law of England
]
is more favourable to an accused person is, in our view, insufficient
to call for an interpretation of s 18(2) which is inconsistent
with
the realities of a modern state, where international criminal
conspiracies organized and directed from one country often involve
criminal acts to be committed in other countries, and the proceeds of
the crime to be laundered elsewhere.”
[23]
On the available evidence the actual conspiracy agreement was entered
into between accused and Moqeti at Grootvlei Correctional
Centre,
Bloemfontein. The envisaged crime and the target were clearly
identified as well as the payment to be made.
These two parties
did not have to agree about the exact manner in which the envisaged
crime was to be committed. They were
not merely negotiating,
but entered into a clear and unambiguous agreement. The mere
fact that Moqeti needed to make further
arrangements for the
execution of the victim does not detract from the fact that a
successful conspiracy was concluded. Obviously,
these findings
are made on the evidence presented by the State which is sufficient
for a reasonable court to convict upon.
The accused must be put
on his defence. Whether a crime has been committed or not will
depend on an evaluation of the totality
of the evidence at the end of
the case.
[24]
Count 61 relates to a contravention of s 18(a) of the Prevention and
Combatting of Corrupt Activities Act, 12 of 2004 in that
the accused
unlawfully and intentionally influenced the testimony of a State
witness, Numbi, by paying her an amount of R2 000.00
to testify in
his favour. Mr Bruwer submitted that the count is confusing
insofar as it is uncertain whether reliance is
placed on subs (a) or
(b). He also pointed out that Numbi did not testify and that
the court is therefore not in a position
to find whether she was in
fact influenced as alleged or not. After the State closed its
case, Ms Bester made available to
the defence all witnesses on the
list that were not called to testify. Numbi is one of them.
The accused may testify
in this regard and may call Numbi as well.
[25]
Section 18(a) and (b) of Act 12 of 2004 reads as follows:
18 Offences of
unacceptable conduct relating to witnesses
Any person who, directly
or indirectly, intimidates or uses physical force, or improperly
persuades or coerces another person with
the intent to-
(a)
influence,
delay or prevent the testimony of that person or another person as a
witness in a trial, hearing or other proceedings
before any court,
judicial officer, committee, commission or any officer authorised by
law to hear evidence or take testimony;
or
(b)
cause
or induce any person to-
(i) testify
in a particular way or fashion or in an untruthful manner in a trial,
hearing or other proceedings
before any court, judicial officer,
committee, commission or officer authorised by law to hear evidence
or take testimony;
(ii) withhold
testimony or to withhold a record, document, police docket or other
object at such trial, hearing
or proceedings;
(iii) give
or withhold information relating to any aspect at any such trial,
hearing or proceedings;
(iv) alter,
destroy, mutilate, or conceal a record, document, police docket or
other object with the intent to
impair the availability of such
record, document, police docket or other object for use at such
trial, hearing or proceedings;
(v) give
or withhold information relating to or contained in a police docket;
(vi) evade
legal process summoning that person to appear as a witness or to
produce any record, document, police
docket or other object at such
trial, hearing or proceedings; or
(vii) be
absent from such trial, hearing or other proceedings, is guilty of
the offence of unacceptable conduct
relating to a witness.
[26]
Count 61 is not elegantly worded, but evidence has been led by the
State to indicate that the accused did in fact arrange for
the
payment of Numbi. Mr Reggie Ngubeni, the accused’s
manager at Impala Arms, Bloemfontein, was instructed to make
payment
to Numbi. However, this did not materialize as there was
insufficient money. Mr Ngubeni testified that he phoned
the
accused’s previous counsel from the offices of W/O Steyn to
ascertain whether he had paid the R2 000.00 to Numbi
as
instructed by the accused. This advocate confirmed that he had
acted accordingly. Mr Ngubeni testified that accused
had
informed him that Numbi would assist him with the case against him
and that she would provide him with accommodation in Lesotho
after
his release. Ms P M also testified about the instructions
from accused that an amount of R2 000.00 should
be paid over to
Numbi in order that she
“
will
come to be on his side”
as
her evidence was interpreted. We also know that Ms Dimpho
Molise, T.’s sister, was contacted by accused several times
in
the weeks preceding the trial, requesting her not to attend the
hearing. I am therefore of the opinion that sufficient
evidence
was placed before the court to dismiss the application for discharge
on this count.
[27]
ORDERS:
Where
for the following orders are made:
1.
Accused’s
application in terms of s 174 of Act 51 of 1977 for his discharge on
counts 8 to 27 is granted and accused is acquitted
on these counts.
2.
Accused’s
application for his discharge in respect of counts 54 and 61 is
dismissed and he is put to his defence.
_____________
JP
DAFFUE, J
On
behalf of State:
Adv A Bester
Instructed
by:
Director of Public Prosecutions
On
behalf of accused:
Mr M Bruwer
Bloemfontein