Nell v S (A791/04) [2008] ZAWCHC 91; 2009 (2) SACR 37 (C) (25 April 2008)

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[2008] ZAWCHC 91
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Nell v S (A791/04) [2008] ZAWCHC 91; 2009 (2) SACR 37 (C) (25 April 2008)

Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No:
A791/2004
-REPORTABLE-
In the matter between:
JEROME
NELL Appellant
A
nd
THE
STATE Respondent
Matter
was heard on the
25
th
of April 2008 and judgment was handed down on the same day.
Counsel for the Applicant:
Adv JA van der Westhuizen SC,
assisted by Adv M Salie
Counsel for the State:
Adv Currie-Gamwo
Application
for leave to appeal was dismissed by the Supreme Court of Appeal of
South Africa on the 16
th
of October 2008.
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case
No:
A791/04
-
REPORTABLE -
Coram: Dlodlo et Le Grange, JJ
In the matter between:
JEROME
NELL
Appellant
and
THE STATE Respondent
JUDGMENT
:
25 APRIL 2008
Le
Grange J
:
[1]
The Appellant in this matter was charged in the Regional Court,
Goodwood with nine (9) counts of housebreaking
with the intent to
steal and theft. The Appellant was convicted of only four (4) counts
of contravening section 36 of Act 61 of
1955 (
the
unlawful possession of stolen property)
and
sentenced to a term of six (6) years’ direct imprisonment.
[2] The
Appellant now appeals against his conviction and the sentence imposed
by the Court
a quo
.
[3]
Mr. JA van der Westhuizen SC, assisted by Mr. M Salie, appeared on
behalf of the Appellant. Ms Currie-Gamwo appeared on behalf
of the
State.
[4] Mr.
van der Westhuizen’s principal submissions were that the
Appellant’s Constitutional rights to privacy and legal
representation
have been violated during a police search at the
Appellant’s residential house. He argued that the conscious,
willful and flagrant
breach of the Appellant’s Constitutional
rights renders the trial unfair and detrimental to the interest of
justice. According
to him, the trial court erred in admitting the
unconstitutionally obtained evidence of Rautenbach, as the Appellant
did not give
the police consent to search his premises. Moreover,
even if it is found that he did consent, the consent cannot be
regarded as
an informed consent. It was also contended that the State
has failed to prove the guilt of the Appellant beyond reasonable
doubt
and that the Appellant’s conviction on the lesser charges of
contravening section 36 of Act 62 of 1955, was wrong in law as it
is
not a competent verdict on a charge of housebreaking with the
intention to steal and theft.
[5]
Mr. Salie argued that the trial court did not exercise its discretion
on sentence properly and that the sentence imposed, induce
a sentence
of shock. He submitted that the Appellant is a suitable candidate for
correctional supervision and the imposed sentence
should be set aside
and be replaced with a sentence in terms of the provisions of
section
276(1)(h)
of the
Criminal Procedure Act, 51 of 1977
.
[6] Ms
Currie-Gamwo, argued that even if it is found that the Appellant’s
Constitutional rights have been infringed, the violation
in the
instant matter was not deliberate. She contended that Rautenbach
acted
bona fide
and would have applied for a search warrant if it was known to him
that the Appellant indeed refused permission to search his premises.

She also contended that the inclusion of the evidence obtained, does
not bring the administration of justice into disrepute, nor
renders
the trial unfair and that the State did prove its case against the
Appellant beyond a reasonable doubt. She disagreed with
the
proposition that the Appellant’s convictions were wrong in law and
argued in conclusion that the sentence imposed by the
court
a
quo
, does not induce a
sense of shock as the offences the Appellant committed, are of a
serious nature.
[7] In
the Court
a quo
,
at the beginning of the State’s case, a trial within a trial was
held to determine the admissibility of the evidence obtained
by the
police at the Appellant’s house. The State relied on the evidence
of two police officials namely, Captain J E van Dyk
and Inspector
Rautenbach. The Appellant also testified. The trial court determined
the evidence obtained to be as admissible.
[8] In
the main trial, after the trial court found that the evidence
obtained is admissible, the State called two witnesses. Inspector

Rautenbach, and Clive William Johnson. The Appellant elected to
remain silent and did not call any defence witnesses.
[9]
Section
22
of the
Criminal Procedure Act 51 of 1977
, permits circumstances in
which a police official may, without a warrant, lawful search any
person or container or premises for
the purpose of seizing articles
which on reasonable grounds are suspected to have been used in the
commission of an offence: where
the person concerned consents to the
search for and the seizure of the article in question, or where the
police official on reasonable
grounds believes that a warrant would
have been issued to him if he applied for such warrant in terms of
section 21(1)
, and that the delay in obtaining such warrant, would
defeat the object of the search.
[10] It
is common cause that the Appellant’s house was searched by
Rautenbach and his team without a search warrant. It is also
not in
dispute that various items, which the State alleges were stolen, were
found on the Appellant’s premises and recorded on
video by the
police.
[11] Rautenbach’s
evidence briefly stated in the trial within a trial, is that during a
police investigation into a crime syndicate,
he established
information implicating the Appellant as the receiver of stolen
goods. The Appellant was thereafter under police
surveillance.
Approximately two days later he established the address of the
Appellant in Pinelands, and set out to question him.
While on his
way to the house, he met the Appellant at a robot and asked him to
accompany him to the police station. The Appellant
acquiesced and
drove his own vehicle to the police station. At the police station
he interrogated the Appellant, explained his
rights to him and asked
him whether he could search his home. The Appellant was given a
choice and consented with the request that
it be done in an orderly
fashion in order not to upset his family. He also agreed that the
Appellant’s daughter be fetched at
school and that no marked police
vehicle is to be used during the search. The Appellant pointed out
various goods at his house
which was then recorded on video. He
testified that if the Appellant had refused him permission, he would
have applied for a search
warrant. He only seized goods which the
Appellant pointed out. He also stated that when certain jewelry items
were seized, the
Appellant became upset and indicated that he intends
phoning his lawyer. Thereafter the Appellant instructed his wife to
phone
his attorney.
[12]
The evidence and cross-examination of this witness were conducted
and concluded over a period of almost four (4) years. It
is not
entirely clear from the record the reasons for the long delay in this
regard.
[13] The
Appellant does not dispute the bulk of Rautenbach’s evidence. He,
however, denies giving the police consent to search
his premises and
requested a search warrant from the police. According to him,
Rautenbach was abrupt and rude and his request for
an attorney was
denied.
[14] The
Magistrate, in determining that the evidence obtained during the
search was admissible, made the following finding at page
241-242 of
the record:-
“
In
die getuienis van Inspekteur Rautenbach val dit op dat die
Beskuldigde sy goedkeuring geheg het aan die deursoeking van
Beskuldigde
se huis, dat sy regte met betrekking tot die bystand van
‘n regsverteenwoordiger aan hom verduidelik was. Beskuldigde gee
boonop
toe dat hy bewus was van sy regte op ‘n sekere stadium, dat
hy selfs regsbystand van sy prokureur versoek het. Die inbreukmaking

op die Beskuldigde se regte was volgens sy oordeel nie so drasties en
diepgaande soos wat aan die Hof deur die verdediging in hulle

argumente voorgehou was nie tydens die deursoeking was die
Beskuldigde teenwoordig. Dit was ook erken dat die Beskuldigde se
vrou by tye teenwoordig was.
Dit
was selfs tussen die Beskuldigde en die polisie ooreengekom dat ‘n
gemerkte polisievoertuig nie by sy huis sou opdaag nie
en dat die
ondersoek nie sy vrou moet ontstel nie. Die scenario kan myns
insiens byvoorbeeld glad nie vergelyk word met die geval
waar
huismense byvoorbeeld sou hulle in die nag geslaap het en die polisie
op ‘n brutale wyse toegang tot die huis verkry het
nie. Soos reeds
bevind blyk dit nieteenstaande Beskuldigde 1 se getuienis dat hy by
die speurderskantore en ook in die huis aangedring
het op sy
prokureur McCallum se teenwoordigheid. Die feit bly, daar was nie
definitiewe pogings aangewend om McCallum te ontbied
nie en die hele
proses van deursoeking, verfilming en beslaglegging op van die items
was gedoen sonder dat ‘n regsverteenwoordiger
ooit ontbied was.
Die Beskuldigde het ook myns insiens vrywilliglik deelgeneem. Hy gee
toe dat daar kommunikasie tussen hom en
die polisie in sy huis was,
waar hy byvoorbeeld gevra was vir dokumentêre bewys van die
artikels.
Die
items moes in alle waarskynlikheid ook tussen sy huismeubels en items
uitgewys gewees het, want hoe anders sou dit dan geïdentifiseer

kon gewees het. Ek is van oordeel dat sou die getuienis toegelaat
word, sal die verhoor nie daardeur onbillik beïnvloed word
nie,
of sou die regspleging nie nadelig geraak word nie.
Inteendeel,
sou die getuienis nie toegelaat word nie sou dit eerder die verhoor
onredelik beïnvloed en sal dit ook nadelig
tot die administrasie
van die regspleging wees want word dit nie toegelaat nie, loop die
Beskuldigde in alle waarskynlikheid as
‘n vry man by die Hof uit.”
[15] On
a conspectus of the evidence in this case, I am in agreement with the
Magistrate’s finding.
[16] Rautenbach
made a favorable impression on the Magistrate, despite the extensive
and sometimes acrimonious cross-examination
by the Appellant’s
counsel. The Appellant testified that the relationship between him,
Rautenbach, and the other police officials
involved in the search,
was very poor on the day in question. He also refused to co-operate
with them. Yet, it is not in dispute
that Rautenbach allowed the
Appellant to fetch his daughter from school before commencing the
search. Rautenbach also acquiesced
to the Appellant’s request not
to use marked police vehicles during the search, as it may upset his
wife. In cross-examination,
the Appellant’s counsel put it to
Raubenbach that during the search, the Appellant informed him that
certain goods were received
from a person named Bronwin Jacobs, (also
known as Amigo) and the Appellant was only warned not to incriminate
himself. Rautenbach
conceded this statement but added that he also
warned the Appellant to remain silent. The Appellant, on his own
version, denies
that he co-operated with the police. The Appellant,
at page 172 line 29, denies that he mentioned the name of Bronwin
Jacobs to
the police. In fact, according to the Appellant, it was the
police who suggested the name to him. Despite the poor relationship

between the Appellant and the police, the Appellant voluntarily made
one of his vehicles available to assist in transporting the
seized
goods from his premises. The Appellant, on his own version, was also
aware of his rights to legal representation and to
remain silent. It
is also not in dispute that when the Appellant did instruct his wife
to phone his attorney, the police did not
interfere or prevent her
from doing so. The fact that he did not phone his attorney earlier,
cannot, in my view, be blamed on
the police.
[17] The
version of Rautenbach, having regard to the totality of the evidence,
is more probable and plausible and the trial court
was correct to
accept his evidence. The Magistrate went further and admitted the
evidence on the basis that if the evidence is
excluded, it would
render the trial unfair and would bring the administration of justice
into disrepute. This decision was also
attacked on appeal. I now
turn to consider the questions raised by section 35(5) of the
Constitution.
Section
35(5) of the Constitution 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.”
[18] Counsel
for the Appellant submitted that Rautenbach acted in bad faith and
deliberately violated the Constitutional rights
of the Appellant. It
was also argued that the violation of Appellant’s rights was
neither technical nor inadvertent.
[19] The
scope and effect of Section 35(5) has, in recent years, been
considered in a number of reported cases. In
Key
v Attorney - General, Cape Provincial Division, and Another
[1996] ZACC 25
;
1996 (4) SA 187
(CC) at 195F-196C, the Constitutional Court- albeit
under the 1993 Constitution held at 196B that:
“
At
times fairness might require that evidence unconstitutionally
obtained be excluded. But there will also be times when fairness
will
require that evidence, albeit obtained unconstitutionally,
nevertheless be admitted.”
[20] In
S v Mkhize
1999 (2) SCAR 632
WLD at 636
f
- 636
j
Willis J, considered the questions raised by section 35(5) of the
Constitution and referred to a number of decided cases including
two
Canadian cases,
R v Jacoy
(1988) 38 CRR 290
at 298 and
R
v Collins
(1987) 28 CRR
122
at 137. Both these cases stress that the test for the admission
of real evidence is less stringent than that for other evidence.
In a
more recent decision of
Pillay
and others v S
2007 (1)
All SA 11
SCA, section 35(5) was again considered by the Supreme
Court of Appeal.
[21] It
is evident that section 35(5) of the Constitution, envisages
circumstances when evidence will be admissible even if the
obtaining
of the same entailed the violation of a right enshrined in the Bill
of Rights. I am in agreement with the approach that
the consideration
whether the admission of evidence will bring the administration of
justice into disrepute requires a value judgment,
which inevitably
involves considerations of the interest of the public and all
relevant circumstances. The following factors may
also be considered
in determining whether the admission of the evidence will bring the
interest of justice into disrepute (
Pillay
and others
,
supra
,
at 39
b
):
whether the evidence obtained was as a result of a deliberate and
conscious violation of Constitutional rights; what kind of
evidence
was obtained; what Constitutional rights was infringed; was such
infringement serious or mere of a technical nature, and
would the
evidence have been obtained in any event.
[22] I
accept that there may be some debate as to whether Rauntenbach in a
sense have acted deliberately and consciously in violating
the
Appellant's Constitutional rights. He certainly acted deliberately
when he searched the premises of the Appellant and if the
Appellant's
counsel is correct, that it was without the Appellant’s permission,
then it was unlawful to do so without a warrant.
This could lead to a
finding that the Appellant's Constitutional rights were violated. It
is, in my view, clear however that he
did not, (for the reasons
already stated herein) subjectively intend to violate the Appellant's
Constitutional right to privacy,
unlawfully. He testified that he
did not believe that a warrant was necessary and there is no reason
to disbelieve him in this
regard. The Appellant was aware of his
rights to legal representation and did exercise it when he instructed
his wife to phone
his attorney.
[23] I
accept that the Courts must be slow to indulge the flagrant disregard
of the law of criminal procedure on the part of the
police and to
protect the ordinary law-abiding citizen of our country against the
abuse of the formidable powers which the police
necessarily have. In
this case, however, other important considerations required the
evidence about the discovery of the items
which Rautenbach reasonably
believed to have been stolen, to be admitted.
[24] The
evidence obtained was real evidence, and the manner in which it was
discovered, can never be regarded as a serious and
flagrant breach of
the Appellant’s right to privacy. It is evident from the objective
facts in this matter, that no force was
used by the police to enter
the premises of the Appellant. The test for the admission of real
evidence is also less stringent
than that for other evidence. In this
regard see
S
v Mkhize
supra
at 637. The allowance of the evidence, in this case, can never
create an incentive for police officials to raid homes of the
innocent at whim or upon fancy, capriciously or arbitrarily. The
inclusion of the evidence will not render the trial of the Appellant

unfair or otherwise be detrimental to the administration of justice.
In my view, the administration of justice would rather be
brought
into disrepute if this evidence is to be excluded.
[25] The
argument that the State has failed to prove the guilt of the
Appellant beyond reasonable doubt, and that the Appellant’s

conviction on the lesser charges of contravening section 36 of Act 62
of 1955 was wrong in law, is without merit.
[26] Rautenbach
investigated the Appellant as being part of a housebreaking syndicate
and had information that he was in possession
of stolen goods. The
police found several television sets, Hi-fi sets, leather jackets, a
large amount of jewelry and other household
appliances in the
Appellant’s home. Some of these items, according to Rautenbach,
were later identified by the complainants.
The Appellant was unable
to give a satisfactory explanation for his possession of the goods.
[27] The
Appellant’s conviction on the lesser charges of contravening
section 36 of Act 62 of 1955, is in my view proper. Counsel
for the
Appellant relied on the decision of
S
v Chauke and Another
1998(1) SACR 354 (V). In
Chauke
,
it was held that a verdict of guilty of receiving stolen property is
not a competent verdict on a charge of housebreaking with
intent to
steal and theft. The learned Acting Judge in
Chauke
gave express consideration to the proposition that housebreaking with
intent to steal is one offence
(of
which the competent verdicts specified in section 262 of Act 51 of
1977 may be entered if established by the evidence)
,
and theft is another
(of
which the competent verdicts specified in section 264 may similarly
be entered)
. It is
correct, when there is an incident of housebreaking with intent to
steal and theft committed on a single occasion and with
a single
intention, it must be charged as one offence, and only a single
verdict can be entered and a single sentence imposed.
In
Chauke
it was held that in view of the state of affairs, it would be wrong
to conclude that the verdicts that are competent in terms of
section
264, on a charge of theft, would also be competent on a charge of
housebreaking with intent to steal and theft. The learned
Acting
Judge was of the view that to conceive of the latter charge as having
separate components, with each component carrying
a separate list of
possible competent verdicts, would amount to an improper splitting of
charges.
[28] In
S v Maunye and others
2002 (1) SACR 266
TPD, the decision in
Chauke
was considered and the Court came to a different conclusion. Stegmann
J, at 277
f
– 278
b
held that:-
“
There
is a considerable weight of authority, that has been followed for
many years, to the opposite effect. An incident of housebreaking
with
intent to steal and theft, committed with a single intention, is to
be regarded as essentially the crime of theft, with the
housebreaking
as a factor that tends to aggravate the seriousness of the offence of
theft and therefore the severity of the sentence.
On this approach, a
charge of housebreaking with intent to steal and theft has often been
accepted as a proper basis for convicting
the accused on a verdict
that, in terms of the
Criminal Procedure Act, is
a competent verdict
on a charge of theft. In my respectful view, the law must continue to
be understood in this way, and the contrary
opinion expressed in
Chauke
does not represent a correct statement of the law.”
[29] I
am in agreement with the dictum of Stegmann J. The approach adopted
in
Chauke
is bad in law. The trial court in
casu,
correctly convicted the Appellant of the lesser offences. It follows
that the appeal against the convictions cannot succeed.
[30] Counsel
for the Appellant also submitted that the sentence imposed induces a
sentence of shock. He submitted that the Appellant
is a suitable
candidate for correctional supervision and the imposed sentence
should be set aside and be replaced with a sentence
in terms of the
provisions of
section 276(1)(h)
of the
Criminal Procedure Act, 51 of
1977
or, alternatively, that the imposition of a fine should be
considered.
[31] The
imposition of sentence is pre-eminently a matter falling within the
discretion of the court
a
quo,
and a court of appeal
will only interfere where such discretion was not properly or
judiciously exercised. The trial court, in
my view, gave due
consideration to all the relevant factors before sentence and the
various sentence options available.
At page 265, line 22 and
further of the record the following is recorded:-
“
Die
vonnisopsie omtrent die boete, dink ek nie is onder die omstandighede
gepas nie. So ‘n vonnisopsie was aan die beskuldigde
by die vorige
geleentheid opgelê, dit het nie die gewenste uitwerking gehad
om die beskuldigde te weerhou van misdaadpleging
soos wat die
Korrektiewe Toesigbeampte omtrent dit ook gereël het nie.
Al
wat gevolglik oorbly is ‘n vonnis van Korrektiewe Toesig.
Daaromtrent het die Hof met verwysing na die saak van
Sinden
alreeds ‘n beslissing gemaak, dat ook wat daardie vonnisopsie
betref, net eenvoudig nie gepas is nie, omrede die Hof van oordeel
is
dat dit onder die omstandighede, gesien in die lig van die
beskuldigde se misdaadrekord, te versagtend sal wees as vonnis.”
[32] The
trial Magistrate also gave consideration to the provisions of
section
276(1)(i)
of the
Criminal Procedure Act and
advanced proper reasons
why it was not considered an appropriate sentence. The Appellant in
this matter is not a first offender.
He has relevant previous
convictions which the trial court correctly considered. In December
1992, he was convicted of contravening
section 37
of Act 62 of 1955
(receiving stolen goods) to the value of R 60 000. The goods found
in his possession then, were television sets,
leather Jackets and
household items.
[33] In
as much as the imposed sentence may at first glance seems harsh, in
considering the Appellant’s personal circumstances
(including his
previous convictions), the interest of society and the seriousness of
the offences he committed, the sentence of
six (6) years direct
imprisonment does not, in my view, induce a sense of shock. It
follows that the appeal against sentence cannot
succeed.
[34] In the result I propose the
following order.
The appeal against the convictions
and sentence is dismissed.
_______________________
LE GRANGE, J
I
agree. It is so ordered.
______________________
DLODLO, J