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[2008] ZANCHC 31
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S v Zurich (10/03) [2008] ZANCHC 31 (23 May 2008)
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
Nr: 10/03
Heard: 10/03/08
Delivered:
23/05/08
In
the matter between:
HERMAN
ZURICH APPELLANT
VS
THE
STATE RESPONDENT
Coram:
Williams J et Mokgohloa AJ
JUDGMENT ON APPEAL
Mokgohloa
A J:
1. This
is an appeal by the appellant Mr Herman Zurich, an attorney at
Upington, against his conviction and sentence by the Regional
Court
magistrate, Upington, on charges of contravention of sections
44(1)(b)(i) and 46 of the Nature and Environmental Conservation
Ordinance 19 of 1974.
2. The
facts of the case can be summarized as follows:
On
1 December 1998 the South African Police Services (“SAPS”)
put in place an operation termed “Operation Rhino”
in
Upington. The purpose of this operation was to eradicate and combat
illegal importation or exportation of smuggled rare and
protected
species, elephant tusks, illegal diamonds, counterfeit currency etc.
The Deputy Director of Public Prosecution (“the
DPP”) in
Kimberley authorized this operation in terms of Section 252A of the
Criminal Procedure Act 51 of 1977 (“the
CPA”). A number
of suspects, including the appellant, were targeted beforehand.
3. Jaco
Oberholzer, a police official and a member of the Bloemfontein Gold
and Diamond Branch was deployed to work as a “deep
throat
agent” of the SAPS in this operation. He purportedly
‘resigned’ from SAPS and obtained employment with
a
company called North Western Transport in Upington. Oberholzer was
however notoriously known around Upington for his attachment
and
involvement in the Gold and Diamond Police Branch. It therefore
became necessary for him to discard his notoriety and build
a
“legend” around him as a contraband smuggler.
4. In
order to lend credibility and enhance this profile as a purported
smuggler, a planned arrest was carried out on Oberholzer
on false
charges of dealing illegally in rough and uncut diamonds. This was
done with the knowledge and authority given by the
DPP’s
office. It was also arranged that Oberholzer should engage the
services of the appellant to assist him in these false
charges. This
was done with the aim of establishing contact and building a
relationship between Oberholzer and the appellant.
Oberholzer
appeared in court assisted by a member of appellant’s office
for a bail application and bail was granted. Subsequently
he
appeared twice in court and the charges, as expected, were withdrawn
against him. It is common cause that the arresting police
officers,
the prosecutor and, the presiding officer who fixed the bail were not
aware that the whole episode was a sham.
5. Subsequently
Oberholzer consulted with the appellant at appellant’s offices
and an outing was arranged between them. They
met at O’Hagans
and the appellant told Oberholzer about a certain man in Rietfontein
who was selling elephant tusks. Oberholzer
showed some interest in
these elephant tusks. After that meeting Oberholzer phoned the
appellant and enquired about the Rietfontein
supplier. The appellant
arranged with Oberholzer to meet this man who later turned out to be
Mr Esterhuizen (the appellant’s
co-accused). They met at the
appellant’s offices and a deal was clinched. Esterhuizen
delivered two elephant tusks at Oberholzer’s
work place at
North Western Transport. A deposit of R1 000.00 was paid by
Obelholzer to Esterhuizen. Later Oberholzer met with
Esterhuizen in
a certain house to pay the balance of the purchase price of the
tusks. That is when Esterhuizen was arrested.
6. The
appellant’s grounds of appeal are based on the issue that
Oberholzer’s planned arrest followed by the false charges
and
the subsequent withdrawal of charges against him amounted to an abuse
of the judicial process. Secondly, that the magistrate
erred in
finding that the appellant had knowledge or did any positive act
either in the transportation, importation or subsequent
selling of
the elephant’s tusks by Esterhuizen to Oberholzer.
Ad
Misuse of judicial process
7. Adv
van Zyl SC, for the appellant submitted that the police official
responsible for operation Rhino, Oberholzer and the local
prosecution
authority misled the court with the main objective of enabling
Oberholzer to make contact with the appellant. It is
argued that the
court had to decide whether it was in the interests of justice that
Oberholzer should be released on bail. Further
that Superintended
Kruger deposed to a false affidavit wherein he stated that the
“offence” was allegedly committed
by Oberholzer while he
knew that to be false. All these were done with the sole objective
of establishing contact between Oberholzer
and the appellant.
8. Adv.
Cloete, for the respondent, argued that the main objective of
Operation Rhino was to eradicate crimes such as smuggled goods
which
are being imported or exported illegally (those included the import
or export of elephant tusks). According to him this
operation was
necessary as these crimes could not be investigated and detected
through conventional methods. He argued further
that these crimes
were prevalent in the area and therefore threatened the national
economy. Adv Cloete submitted further that
during the operation,
they were faced with the problem that Oberholzer was well known as a
member of the Gold and Diamond Police
Branch. In order to disguise
Oberholzer’s actual purpose and make him more acceptable as a
smuggler, a contrived arrest
was carried out on him on a false
charge. Of importance, according to Adv Cloete, is that the police
acted in good faith and this
is illustrated by obtaining approval
from the DPP as required by section 252(A)(5)(a) of the CPA.
9. Section
35(5) of the Constitution of the Republic of South Africa Act 108 of
1996 provides as follows:
“
Evidence
obtained in a manner that violates any right in the Bill of Rights
must be excluded if the admission of that evidence would
render the
trial unfair or otherwise be detrimental to the administration of
justice.”
10. In
dealing with the question of abuse of the judicial process, I deem it
fit to first deal with the following issues:
-
whether
the evidence against the appellant was obtained in a manner that
violated his constitutional rights.
-
whether there was any misuse of the process by the police to the
court that entertained the bail application and the postponements
of
the case of the covert operations agent(Oberholzer).
-
whether the regional magistrate erred in not excluding the evidence
obtained in a manner that violated the appellant’s
constitutional rights.
11. In
S
v Spies and Another 2000(1) SACR 312
,
the SCA dealt with the question of whether the method orchestrated by
the police in their investigations was so irregular that
it rendered
the trial unfair.
Farlam
AJA
(as he then was) examined and discussed the decisions in
S
v Ebrahim 1991(2) SA 553 (A
);
S
v Nortjie
1997 (1) SA 90
(c) and S v Hayes en ‘n Ander
1998 (1)
SACR 625
(0) and stated at p 319i-d
as follows:
“
[25]The
facts of this case differ ‘toto caelo’ from those in the
Ebrahim case. The appellants were lawfully before
the court. The
prosecution was in no way involved in, or to be held responsible for,
the conduct of the police: to use the metaphor
employed in the
Ebrahim case, it cannot be said that the hands of the prosecution in
this case were not ‘clean’.
[26]The
facts in the Nortje and Hayes cases were similar. In both cases
persons who would not otherwise have participated in the
purchase of
uncut diamonds did so after improper pressure had been brought to
bear upon them (see the Nortje case supra at 102b
and the Hayes case
supra at 632 c-g).
[27]In
the Hayes case a similar modus operandi as in the present case was
followed by the police in regard to the preparation of
the witnesses’
statements, particularly so as to eliminate discrepancies. After
quoting the evidence on the point Edeling
J said (at 630g): ‘Hiedie
getuienis is op sigself moontlik genoegsaam om te bevind dat die
appellante se reg op ‘n
regverdige verhoor daardeur verydel
is.’
This
was not, however, the basis for the upholding of the appeal in that
case. As in the Nortje case, the conviction was set aside
because
the accused were induced to commit the crime of which they were
convicted because of fundamentally unfair police procedures.
[28]
I do not think that it can be said that the appellants in this case
were induced to purchase the diamonds in question because
of
fundamentally unfair conduct on the part of the police.”
12. I
pause here to examine carefully the evidence of the appellant.
According to the appellant, after Oberholzer was released
on bail he
consulted with him at his (the appellant’s) offices as his
client, apparently to discuss the case against Oberholzer.
After the
consultation Oberholzer left the office. Subsequently one of the
appellant’s clients, Mr Human (who testified
for the defence)
warned the appellant that Oberholzer was “a deep throat agent”
of the SAPS. This occurred on 23 February
1999. Notwithstanding
this warning, the appellant and Oberholzer met again at a social
occasion after that. On 12 March 1999
the appellant met Oberholzer
and one Mr Cilliers (Oberholzer’s ‘employer’ at
NWT), at O’Hagans. It was
at this stage where the appellant
went further and arranged a meeting between Oberholzer and
Esterhuizen when a deal was clinched.
To my mind, it is clear from
the evidence that the appellant was not induced to give information
about Esterhuisen to Oberholzer
nor to arrange a meeting between the
two to facilitate the selling of the elephant tusks by any conduct on
the part of Oberholzer
or the police. The appellant, even after
being warned by Human, volunteered the information about the elephant
tusks to Oberholzer.
It is patently clear that the appellant
arranged this transaction on his own. There is no shred of evidence
that Oberholzer induced
or coaxed him in any manner whatsoever. In
fact the evidence suggests that the appellant was instrumental in
arranging the meeting
between Oberholzer and Esterhuizen where this
deal was clinched. It is clear to me that the previous case where
the appellant
represented Oberholzer in court, played a minimal role,
if any, in the subsequent transaction between Oberholzer and
Esterhuizen.
In my view, this case differs from the facts in the
Nortjie case in that it cannot be said that Oberholzer, the police
agent,
either enticed or induced the appellant to participate or
commit an offence which, had it not been for Oberholzer, he would not
have committed. In my view, the submission that the admission of the
evidence given by Oberholzer, and his involvement in the
transaction
renders the entire trial unfair, is devoid of any merit. However
that is not the end of the appeal as each count has
to be decided on
its own merits and the evidence presented.
Ad
Conviction on count 1
13. Section
44(1) (b)(i) of the Nature and Environmental Conservation Ordinance
provides as follows:
“
[1]
Subject to the provisions of this ordinance, no person shall without
a permit authorizing him to do so-
(a)….
(b)(i)
import into the Province from any place outside the Republic the
carcass of any wild animal, or …”
In
terms of section 2 of the Ordinance, the carcass of the wild animal
include the whole or part of the animal and tusks. Both
counsel
agree that the respondent has failed to prove that the appellant did
something positive tantamount to importing the tusks
from Botswana to
Upington. There is no evidence that the appellant imported or
transported the tusks to Upington. The only evidence
available, and
upon which Esterhuizen (accused 2) was convicted, is that
he(Esterhuizen) imported the tusks from Botswana. I am
also of the
view that the respondent failed to prove its case on this charge and
the appeal should succeed on this ground. Therefore
the conviction
on Count 1 should be set aside.
Ad
convition on count 2
14. Section
46 of the Ordinance provide that:
“
No
carcass of any wild animal shall be sold by any person other than-
the
owner of any land on which the animal concerned was hunted in
accordance with the provisions of this ordinance;
a
market master at a public or municipal market; or
a
person authorized by a permit issued under this ordinance or a
licence issued under the Licences Ordinance, 1981 to sell such
carcass.”
15. The
evidence of the state which I find to have been proved beyond
reasonable doubt is that the appellant informed Oberholzer
about the
elephant tusks and even arranged a meeting between Oberholzer and
Esterhuizen, which meeting took place in appellant’s
offices.
I am of the view that the appellant facilitated the transaction
between Oberholzer and Esterhuizen and made himself an
accomplice to
the offence. I therefore find that the appellant cannot succeed in
his appeal on this conviction.
Ad
Sentence
16. There
were no formal submissions made on the appeal against the sentence.
However as the conviction on Count 1 stand to be
set aside, it
follows that the sentence in respect of that count should be set
aside as well. As the court
aquo
took counts 1 and 2 together for purposes of sentence, it is
difficult to separate the sentence intended for count 1 from that
intended for count 2. However it is imperative that we interfere
with the sentence. Under normal circumstances, I think it would
be
appropriate if not prudent to remit the case to the magistrate to
consider sentence in respect of count 2 alone. However, I
am loath
to do that as it will invariably result in a delay in finalising this
case. I am satisfied that the facts which are on
record in respect
of mitigation of sentence for the appellant are sufficient to enable
us to decide on an appropriate sentence.
Having
given this matter careful consideration, I would make the following
order:
1.
The
appeal against the conviction on count 1 succeeds and the conviction
is set aside.
The
conviction on count 2 is confirmed.
The
sentence imposed on the appellant is set aside and substituted with
the following:
“
The
appellant is sentenced to a fine of R5000.00 alternatively 9 months
imprisonment and a further 9 months imprisonment suspended
for 3
years on condition that the accused is not convicted of any offence
in contravention of sections 42, 44 and 46 of the Nature
and
Environmental Conservation Ordinance 19, of 1974 committed during
the period of suspension.”
The
sentence is antedated to 23 November 2005.
_________________
F
E MOKGOHLOA
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION
I
agree; it is so ordered.
______________________
CC
WILLIAMS
JUDGE OF THE HIGH
COURT
NORTHERN CAPE
DIVISION
For
the Appellant: Adv Francois Van Zyl SC
Cape
Town
For
the Respondent: Adv J J Cloete
Director
of Public Prosecutions