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2009
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[2009] ZAGPJHC 2
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S v Naidoo (06/134) [2009] ZAGPJHC 2; 2009 (2) SACR 674 (GSJ) (19 March 2009)
IN THE HIGH COURT OF SOUTH AFRICA
(SOUTH GAUTENG HIGH COURT,
JOHANNESBURG)
CASE NO: 06/134
In the matter between:
KEVIN NAIDOO
Appellant (Accused 2)
and
THE STATE
Respondent
J U D G M E N T
BLIEDEN, J
:
The appellant is Accused 2 in the
trial which came before Saldulker J in 2007. Originally there were
five Accused before the court,
however the charges were withdrawn
against Accused 4 while Accused 3 pleaded guilty to some of the
charges after a plea and the
sentence agreement was concluded
between him and the State and he no longer features in the
proceedings.
Immediately prior to the hearing of
the trial the appellant raised an objection to the indictment served
on him. He claimed that
there was a misjoinder as he had not been
charged with all the counts which had been brought against the
accused 1. After hearing
argument the Judge rejected the objection
raised. He appeals with the leave of the court a quo against this
ruling.
The Indictment:
The appellant and his co-accused were
charged with 55 counts. Looked at as a whole and as supplemented by
the summary of substantial
facts which is attached to the
indictment, the accused before the Court are charged with
contravening various sections of the
Prevention of Organised Crime
Act, number 121 of 1998 (POCA). It is alleged that they were
associated together in an illegal
enterprise that had as its main
aim the illegal procurement of precious metals, the unlawful
dispatch of these metals from South
Africa to the United Kingdom and
money laundering as regards the remittances and proceeds unlawfully
earned as consequences of
the first two activities.
With special reference to accused 1
and the appellant, the former was at all material times alleged to
be stationed in the United
Kingdom and it was to him, and the
company controlled by him, Just Refiners and Technology UK, that the
illegal property was
alleged to have been dispatched while the
appellant, being accused number 2, was in South Africa. He is
alleged to have been
the party who stole or otherwise illegally
caused the property to be acquired and thereafter with the
assistance of the other
accused illegally exported such property to
the United Kingdom.
The scope of POCA:
Before dealing with the appellant’s
objection to the indictment it is necessary to refer to POCA and the
sections thereof
which are of relevance to the present appeal. The
preamble to POCA reads as follows:
“
To
introduce measures to combat organised crime, money laundering and
criminal gang activities; to prohibit certain activities
relating to
racketeering activities; to provide for the prohibition of money
laundering and for an obligation to report certain
information; to
criminalise certain activities associated with gangs; to provide for
the recovery of the proceeds of unlawful
activity; for the civil
forfeiture of criminal property that has been used to commit an
offence, property that is the proceeds
of unlawful activity or
property that is owned or controlled by, or on behalf of, an entity
involved in terrorist and related
activities; to provide for the
establishment of a Criminal Assets Recovery Account; to amend the
Drugs and Drug Trafficking Act, 1992
; to amend the International
Co-operation in Criminal Matters Act, 1996; to repeal the
Proceeds
of Crime Act, 1996
; to incorporate the provisions contained in the
Proceeds of Crime Act, 1996
; and to provide for matters connected
therewith.
” The
substitution of the preamble in the schedule to Act 33 of 2004 read
with section 27(1) thereof did not derogate from
the stated
intention therein).
The sections of POCA which are
relevant to this appeal are sections 2 (1) ; 4 and 6 and they read
“ 2. Offences - (1) Any
person who –
(i) receives or retains any
property derived, directly or indirectly, from a pattern of
racketeering activity; and
knows or ought reasonably to have
known that such property is so derived; and
uses or invests, directly or
indirectly, any part of such property in acquisition of any
interest in, or the establishment or
operation or activities of,
any enterprise;
(i) receives or retains any
property, directly or indirectly, on behalf of any enterprise; and
knows or ought reasonably to have
known that such property derived or is derived from or through a
pattern of racketeering activity,
(i) uses or invests any property,
directly or indirectly, on behalf of any enterprise or in
acquisition of any interest in, or
the establishment or operation or
activities of any enterprise; and
knows or ought reasonably to have
known that such a property derived or is derived from or through a
pattern of racketeering
activity;
acquires or maintains, directly or
indirectly, any interest in or control of any enterprise through a
pattern of racketeering
activity;
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;
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; or
conspires or attempts to violate
any of the provisions of paragraphs (a), (b), (c), (d), (e) or (f),
within the Republic or elsewhere,
shall be guilty of an offence”.
“
4. Money Laundering. - Any
person who knows or ought reasonably to have known that property is
or forms part of the proceeds of
unlawful activities and –
enters into any agreement or
engages in any arrangement or transaction with anyone in connection
with that property, whether such
agreement, arrangement or
transaction is legally enforceable or not; or
performs any other act in
connection with such property, whether it is performed independently
or in concert with any other person,
which has or is likely to have the
effect –
of concealing or disguising the
nature, source, location, disposition or movement of the said
property or the ownership thereof
or any interest which anyone may
have in respect thereof; or
of enabling or assisting any
person who has committed or commits an offence, whether in the
Republic or elsewhere-
to avoid prosecution; or
to remove or diminish any
property acquired directly, or indirectly, as a result of the
commission of an offence,
shall be guilty of an offence”.
“
6. Acquisition, possession
or use of proceeds of unlawful activities. – Any person who –
acquires;
uses; or
has possession of,
property and who knows or ought
reasonably to have known that it is or forms part of the proceeds of
unlawful activities of another
person, shall be guilty of an
offence”.
In reading the three sections of POCA
above, the following definitions as contained in sec 1 thereof are
important:
“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;
“
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;
“Proceeds
of unlawful activities”
means any property or any service, advantage, benefit or reward
which was derived, received or retained, directly or indirectly,
in
the Republic or elsewhere, at any time before or after the
commencement of this Act, in connection with or as a result of
any
unlawful activity carried on by any person, and includes any
property representing property so derived;
“Unlawful
activity”
means any
conduct which constitutes a crime or which contravenes any law
whether such conduct occurred before or after the commencement
of
this Act and whether such conduct occurred in the Republic or
elsewhere.
As is plain from what has been
quoted, in a nutshell POCA has been designed to deal with the
organised racketeering of entities
irrespective of the particular
parts played by persons associated with such enterprise in achieving
the object of their collective
conspiracy to commit a particular
crime or a series of crimes.
The appellant’s objection to
his being joined in the proceedings:
On behalf of the appellant reference
was made to 19 alternative counts and 3 main counts against accused
1 where the appellant
has not been charged. It was submitted on the
appellant’s behalf that as it has not been shown by the State
that accused
1 and the present appellant are implicated in the “same
offence” in relation to these counts it is irregular and
impermissible that such persons be tried together in respect of each
offence in which each and everyone is not so implicated.
As
authority for this proposition counsel for the appellant referred to
sections155 and 156 of the Criminal Procedure Act as
well as the
following cases:
State v Chawe and Another
1970 (2) SA
414
at 416 E.
State v Ramgobin and Others
1986 (1)
SA 68
at 80 D and E.
State v Stellios Orphanou and six
others, unreported judgement of Leveson J delivered on 18 October
1985 in the Witwatersrand
Local Division. Special reference is made
to page 97 line 10 and page 101 lines 20 – 30 of that
Judgement.
S v Makganje
1993 (2) SACR 621
(B) at
622 e and f.
For the sake of completeness sec 155
and 156 of the Criminal Procedure Act are quoted:
“ 155 - Persons implicated
in same offence may be tried together.
any number of participants in the
same offence may be tried together and any number of accessories
after the same fact may be
tried together or any number of
participants in the same offence and any number of accessories
after that fact may be tried
together, and each such participant
and each such accessory may be charged at such trial with the
relevant substantive offence
alleged against him.
A receiver of property obtained
by means of an offence shall for purposes of his section be deemed
to be a participant in the
offence in question “.
“156 – Persons
committing separate offences at same time and place may be tried
together.
Any number of persons charged in
respect of separate offences committed at the same place and at the
same time or at about the
same time, may be charged and tried
together in respect of such offences if the prosecutor informs the
court that evidence admissible
at the trial of one of such persons
will, in his opinion, also be admissible as evidence at the trial of
any other person or
such persons”.
The facts in each of the four cited
cases graphically demonstrates the approach of our courts in regard
to the objections raised
because of the provisions of section 155 of
the Criminal Procedure Act.
In the
Chawe
case two accused were found in possession of stolen meat, which
could not be linked to the same theft incident. However, the
two
accused incriminated each other. The court ruled that where accused
persons commit separate offences it constituted a misjoinder
to
charge them together.
In the
Ramgobin
case (at 80D – E) the following is recorded:
“Counts
2, 4 and 5 are not laid against all the accused: nor can it even be
said that the same accused are involved on each
of these charges.
Counts 2 and 5, furthermore, cover a completely different period
from count 4. I hold therefore that it is
irregular and
impermissible to join the accused in counts 2, 4 and 5 either with
each other or with any other counts.”
In the
Stellios
Orphanou
case only the
first six accused (and not the seventh accused) were charged with
the first count, which was a main count of public
violence. Accused
7 was charged with 2 main counts and the other accused were charged
with 3 main counts.
The court, per Leveson J found that
because one accused had been charged with 2 counts while his
co-accused were charged with
3 counts, the last of which had nothing
to do with the first two and the objecting accused was not alleged
to have in any way
been involved in the last count there had been a
misjoinder.
In
State
v Makganje
one of the
two accused had been charged with raping a 12 year old girl on a
particular date and time. The second accused had
been joined in the
trial as he had been charged with raping the same complainant a day
after the first rape. Other than having
a common complainant
neither offence was connected to the other. This was held to be a
misjoinder.
The four cases quoted above, are
authority for the proposition that where there is no connection
either in time, space or fact
between the charges facing accused 1
and the appellant, it is irregular and impermissible that such
persons be tried together
in respect of offences in which each and
everyone is not implicated. I agree with the appellant’s
counsel that alternative
charges rank as alternative counts which
are on their own separate offences charged.
As is plain from the above quoted
two sections of the Criminal Procedure Act the prejudice that an
accused would suffer if the
relevant two sections were not applied
is clear. An accused could spend weeks in court while evidence
affecting his or her co-accused
was dealt with which had nothing
whatsoever to do with the objecting accused and the charges faced by
him or her, merely because
on other counts he was charged with an
offence in which his co-accused was connected. This the Criminal
Procedure Act does not
permit.
This is plainly demonstrated by the
facts in the four cases on which the appellant relies. However it
should be mentioned that
in none of these cases was POCA an issue.
As can be gathered from what is stated below, the facts in all four
of the quoted
cases are distinguishable form those which apply in
the present proceedings. In each of the four cases quoted the
various co-accused
were charged with various offences some of which
could not be linked to all of them in time or by act of
participation. It was
submitted on behalf of the state that the
situation is different in this case, as all the accused are involved
in the same transaction
which constitutes the main count each of
them faces. They however played different roles in achieving it.
Applying the provisions of POCA to
the present indictment:
The starting point in considering
the issues in this appeal is the fact that the State case is
postulated on the provisions of
the various subsections of sec 2 (1)
of POCA, namely that the various accused were all in different
capacities involved in the
illegal enterprise to which reference has
already been made. Various criminal activities were undertaken, all
having as their
ultimate purpose the facilitation of various crimes
referred in schedule 1 of POCA, for the benefit of the criminal
enterprise
formed by all the accused.
The evidence on which the State will
rely, as stated in the indictment itself and the summary of
substantial facts attached to
it, if proved to be correct, will
justify the conviction of some of the various accused on a number of
counts which may differ
from those relating to other accused,
depending on the specific activity of the accused concerned. For
example on count one
all the accused are charged with being employed
by or associated with an enterprise involved in “ a pattern of
racketeering
activities” as defined in POCA. However only
accused one is referred to in the second alternative count. He is
charged
under subsection 2(1)(b) of POCA. This subsection relates
only to the receiving of property derived through a pattern of
racketeering
activities.
Both counts have as their common
factor the requirement that racketeering activity by the members of
the group would have to be
proved in order for a conviction to
follow. In the circumstances the evidence on all the counts will be
relevant to cover the
same issues.
The reason why Accused 1 is charged
separately in the alternative is that according to the indictment he
was not directly involved
in the thefts or frauds involved. However
if these are not proved by the State he would still be guilty of an
offence in terms
of Section 2(1)(b) of POCA, but only if he knew or
should have known that the proceeds received by him were as
consequence of
unlawful activities.
What has been said above applies to
all 19 alternative counts to which the appellant has objected. In
each and every one of them
Accused one by himself and as an
alternative to the main count of theft and fraud has been charged
either under section 2(1)(b)
or section 6 of POCA. Both sections
being limited to the possession or use of property unlawfully
obtained.
What the argument of appellant’s
counsel loses sight of is the fact that ultimately the charge
against each of the appellants
is one of racketeering and being part
of a conspiracy to achieve a criminal result, whether it be theft,
fraud or the contravention
of certain statutes and/or regulations
relating to the mining of minerals or customs and excise or currency
control.
For each of the main counts, and the
alternatives thereto, there is only one set of facts which might
result in a conviction on
the main counts or on one of the
alternatives. What is clear is that in relation to each count, or
alternative thereto, the
evidence relied upon by the prosecution
relates to the ongoing, continuing or repeated participation of
each of the accused,
and in particular accused 1 and the appellant
in the illegal rackets in which they are all participants. Despite
the fact that
the nature of the part played by each accused could be
different from that of another accused, the evidence would remain
the
same to prove the conspiracy between them or the individual
counts on which Accused 1 has been charged in the alternative.
One has but to read the various
charges in the indictment to be convinced of this fact.
Bearing the above considerations in
mind there is no possibility that any of the Accused runs the risk
of being in a situation
that any evidence led will not be relevant
to the case he has to meet. Each of the Accused is being tried for
the same offence.
The fact that Accused 1 alone is charged with the
contravention of certain sections of POCA in the alternative does
not detract
from the fact the main charge against each and every one
of them is that they are guilty of contravening section 2(1)(e) of
POCA.
The evidence on which the State will have to rely on in
proving a contravention of section 2(1)(e) has recently been defined
by the Supreme Court of Appeal in
Eyssen
v The State (2008) JPL 22417 (SCA).
Paragraphs 5 -10 of that judgement are relevant to the present case
and are quoted below:
“
[5] The
essence of the offence in subsection (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
subsection
(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, subsection (e) is
wider than subsection (f) in that subsection
(e) covers a person who
was managing, or employed by, or associated with the enterprise,
whereas subsection (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:
“ be in charge
of; run. 2 supervise (staff). 3 be the manager of (a sports team or
a performer)”.
See Concise Oxford
Dictionary 10
th
edition s v manage.
“
[6] The word
“enterprise” is defined in section 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 be inevitably be
the case”.
“
[7] It is a
requirement of the subsections in question that the accused (in
subsection (e)) or the other person (in subsection (f))
must
participate in the enterprise’s affairs (Paragraph [14] below
illustrates the point.) 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….. 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
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 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”) means interrupted 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”.
As can be seen from the passages in
Eyssen, quoted above, it is necessary for the State to prove all the
elements in the common
law offences which make up the illegal
enterprise which comprise the main charge against them before each
can be convicted on
count 1. In the circumstances there can be no
question of them claiming that they are not being charged with the
“same
offence”. The greater offence of necessity
includes the lesser.
As regards the three main counts
which are only directed against accused 1 and 3 and not against the
appellant, being counts 27,
29 and 51, the following considerations
apply.
The prosecutor in the court a quo
and in his heads of argument has made it known that these charges
relate to a trap which had
been set against accused 1 and 3 and
which resulted inter alia in a tape recording being made of a
conversation between these
two accused in which the modus operandi
of the enterprise in conducting its affairs was alluded to. More
specifically the conversation
dealt with the illegal export of the
unwrought precious metals which had by then occurred and which was
to continue.
On behalf of the State, counsel at
the trial and in his heads of argument now, has further submitted
that the evidence to be tendered
on these counts is not only
relevant because it provides proof of knowledge of unlawfulness on
the part of accused 1 in regard
to these counts, but also because it
provides proof of accused 1’s state of mind in general and his
“mens rea”
when he imported material from the appellant
in the past. This refers to counts 2 – 26 of the indictment.
This also refers
to what occurred later and this is dealt with in
counts 27 – 55. More pertinentally he further submitted that
it is also
relevant to prove his interaction and dealings with the
appellant in general which is relevant to proving count 1
(racketeering)
charges against all the accused.
Counsel further argued that proving
evidence relating to the trap, and the taped conversation, will be
akin to the state proving
a previous conviction which is tendered to
prove “mens rea” and is permissible in terms of sec 197
(d) of the Criminal
Procedure Act as well as sec 22 of POCA. In the
circumstances, so it was submitted, if a previous conviction is
admissible to
prove “mens rea” of one accused, so should
the proving of the commission of an individual offence be. It ought
to
be admitted in the interests of justice because of relevancy and
because it is admissible as it provides proof of the elements
of
“mens rea” against accused 1 and the other accused as
regards the other transactions charged in the indictment
.
I agree with these submissions. The
evidence is relevant and it is difficult to conceive what kind of
prejudice the appellant
would suffer as a consequence of such
evidence being admitted.
Various other aspects relating to the
interpretation of sec 155 and 156 of the Criminal Procedure Act, and
in particular the meaning
of the words “same offence” as
it appears in section 155 were argued on behalf of the State. In
the circumstances
of the present case it seems to me that it is
unnecessary to decide these further issues in the light of what has
already been
said.
In the circumstances in my view the
present appeal cannot succeed and it falls to be dismissed. The
following order is made:
The appeal is dismissed.
_________________________
P BLIEDEN
JUDGE OF THE HIGH COURT
_________________________
NF KGOMO
JUDGE OF THE HIGH COURT
_________________________
FJ
BASHALL
ACTING JUDGE OF THE HIGH COURT
COUNSEL FOR THE APPELANT: Adv. MM
Hodes SC
INSTRUCTED BY: Biccari Bollo
Mariano Inc.
COUNSEL FOR THE RESPONDENT Adv. de
Villiers
Adv. le Roux
INSTRUCTED BY: The Directorate of
Special Operations