Van Der Berg and Another v S (A 116/2004) [2008] ZAWCHC 32; 2009 (1) SACR 661 (C) (6 June 2008)

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[2008] ZAWCHC 32
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Van Der Berg and Another v S (A 116/2004) [2008] ZAWCHC 32; 2009 (1) SACR 661 (C) (6 June 2008)

REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case No.
A
116/2004
In
the matter between:-
CAREL
CHRISTIAAN VAN DER BERG
First Appellant
EWALD
KLEINHANS
Second Appellant
and
THE
STATE
Respondent
______________________________________________________
JUDGMENT
DELIVERED THIS 6
TH
DAY OF JUNE 2008
______________________________________________________
ENGERS
AJ :
INTRODUCTION
1.
Appellants appeared in
the Cape Town Regional Court on a charge of contravening section 20
read with sections 1, 82(a) and 90 of Act
No. 56 of 1986
(colloquially referred to as illicit diamond buying or IDB).
They pleaded not guilty, but were found guilty
and sentenced to a
fine of R8 000,00 or 18 months imprisonment plus 2 years imprisonment
suspended for 5 years on condition that
the Appellants were not again
found guilty of a similar offence during that period.
2.
Appellants appeal against
their conviction.
3.
It is common cause that
the Appellants were caught by means of a police trap or undercover
operation.
4.
The fundamental issue in
this appeal is the application of section 252A of the Criminal
Procedure Act, No. 56 of 1977 (“CPA”),
which deals with traps and
undercover operations.   Section 252A was introduced into
the CPA  by way of an amendment
and came into effect on 29
November 1996.  The date of the offence was 18 April 2000.
5.
At the hearing, the
magistrate conducted a trial within a trial to decide whether the
evidence relating to the police trap ought to
be admitted or
excluded.   He held that the evidence was admissible.
6.
The appellants contend
that
a.
the trapping operation
did not accord with the guidelines applicable to such traps;
b.
the police went further
than permitted in terms of the statute;
c.
the evidence arising from
the trap ought to have been excluded;
d.
without that evidence,
the State case against them would fail, and that they should have
been acquitted.
7.
It appears to me that the
last of these contentions is correct.  Virtually the entire case
against the appellants consists of
evidence gleaned from the police
trap.  In the absence of that evidence, there would be nothing
to sustain a conviction.
8.
Accordingly, one must
examine the first three contentions.
APPROACH
TO THE EVIDENCE
9.
Before doing so, there is
a preliminary issue which bedevils this case.  In his judgment
as to the admissibility of the evidence
of the police trap, the
magistrate stated as follows:
“
Die Hof gaan nie op
hierdie stadium ‘n gedetailleerde redes verskaf vir sy bevinding
nie, aangesien dit sou vereis dat die Hof ‘n
oordeel sou moes vel
oor sekere getuie, getuies se geloofwaardigheid.  Gedetailleerde
redes sal later gegee word indien nodig.
In die lig van al die
getuienis, in die lig van al die submissies asook dié aspek in
geskil, bevind die Hof dat die polisie tydens
die optrede bona-fide
opgetree het en die Hof bevind dat die polisiebeamptes se optrede nie
verder gegaan het as die skep van ‘n
geleentheid om ‘n misdryf te
pleeg nie....”
10.
However, nowhere in his
main judgment did the magistrate either give reasons for his decision
in the trial within the trial, or make
findings regarding the
credibility of the various witnesses.
11.
In the trial within the
trial, the State called:
a.
Captain Brink, who had
given the go-ahead for the trap;
b.
Detective-inspector
Theron, who was in charge of the trap;
c.
Detective-sergeant
Molefe, who participated in the trap;
d.
Ms Vosloo, a typist at
the SAP’s Gold and Diamond branch in Bellville.
For the appellants, only
the first appellant testified.
12.
In addition to the above
evidence, certain documents were also placed before the court.
These included:
a.
Guidelines for trapping
operations promulgated in terms of section 252A(4); this document
sets out mainly procedural requirements
for traps.
b.
Affidavits by Brink and
Molefe;
c.
An affidavit by the
police informant in the case, identified only as “Bron Nr 13103".
The informant did not testify.
13.
There were certain issues
on which the evidence of the State witnesses conflicted with that of
the first appellant.  Firstly,
there was a marked difference in
the evidence relating to the number of telephone conversations, who
initiated them, and the content
of such conversations, during the
approximately two months before the trap was sprung.   The
first appellant testified
that there had been many such conversations
(he estimated 10), that all had been initiated by the police (not
necessarily by the
same person in each case, because the original
contact had come from the informant, and Molefe had thereafter
contacted him), and
that in virtually all the conversations, he had
been offered diamonds to buy and told of how much money he would be
able to make.
Although he professed lack of interest, the
calls continued to come.  Molefe, on the other hand, testified
that there were far
fewer phone conversations, that the first
appellant had initiated these, and that the tenor of the
conversations was first appellant
asking when Molefe could get
diamonds for him.
14.
Secondly, there were
differences regarding the events on the day of the trap itself.
First appellant testified that Molefe had
telephoned him from Cape
Town, and said that he should come to Cape Town because he, Molefe,
had the diamonds.   First
appellant said he could not leave
Worcester, whereupon Molefe phoned him an hour or two later from the
Engen garage in Worcester.
He eventually met Molefe who offered
him the diamonds for R80000, then R60000, and finally for R20000 with
the proviso that if the
diamonds were sold for more than R45000, a
further R25000 would be payable.  Molefe did not testify about
the call from Cape
Town, but said that first appellant had called him
the evening before to ascertain whether the diamonds were available.
15.
The failure of the
magistrate to give any reasons for his decision in the trial within
the trial, or to make any findings relating
to the credibility of the
witnesses, places this appeal court at a distinct disadvantage.
The magistrate had the opportunity
of observing all the witnesses and
their demeanour when giving evidence.  Demeanour is an important
factor in weighing up the
credibility of a witness.  In the
present case, we do not know which witnesses the magistrate accepted
as truthful, or why he
did so.  We also do not know on what
facts he based his decision in the trial within a trial.
16.
I have read and re-read
the record of the evidence given by all the witnesses.  I have
also had regard to the various criticisms
levelled against the main
witnesses by counsel (counsel for the appellants criticising the
State’s witnesses, and counsel for the
State criticising the first
appellant’s evidence).   I have already referred to the
conflict between aspects of the State’s
version and the appellants’
version.  These cannot be resolved solely by reference to the
record.  It is possible that
the State could have led further
evidence which might have enabled one to resolve the conflict. The
State did not call the informant
(I appreciate that there may be
cogent policy reasons for this), nor did it lead any evidence of, for
instance, telephone accounts
which might have shed considerable light
on the matter.
17.
As far as the
documentation is concerned, the various affidavits referred to above
should not, in my view, carry any weight, even
if admissible.  A
self-confirming affidavit by Brink and an affidavit by an unnamed
informer are not documents on which one
can place very much reliance.
18.
The result is that I find
myself unable to make any finding as regards which version of events
should be accepted and,
a
fortiori,
I cannot reject the evidence of the first appellant as not being
reasonably possibly true. I therefore propose to approach this issue
of the police trap on the basis of the evidence given by first
appellant.
19.
In doing so, I am mindful
of what Flemming J said in S v Desai1997 (1) SA 845 (W) at p 848
“
The trap gave
evidence. The informer did not. This left the field wide open for the
appellant to testify about what the informer had
allegedly done. That
it is often for various reasons undesirable or impossible for the
police to produce an informer as a witness,
is a state of affairs
which, as the 'defence' raised in this case shows, creates an
attractive prospect for an accused who is trapped,
to be acquitted
not because the facts do not prove guilt, but because the accused was
'enticed and lured'. Courts should be aware
of the risk. Courts have
a duty to society in general not to share in the spirit of unduly
promoting everything which can possibly
assist towards acquittal,
irrespective of the established truth. Unless the court devotes
itself adequately to the ascertainment
of the truth and to acting in
accordance therewith, society can be expected to make its own
assessment of guilt and to compensate
with its own reactions for such
failure and for indecisiveness or spinelessness of the court.
That consideration
must be borne in mind when deciding to what extent the allegations of
the appellant against the informer can or
should be recognised as a
'defence'. Similarly so when asking whether the draftsman of the
Constitution would have been so irresponsible
as to strike a balance
which demands that even those who are known to have committed an
illegal deed should nevertheless be acquitted.
(The said
consideration also requires proper scrutiny of the uncontradicted
evidence about the 'enticement'.)”
THE
LAW RELATING TO POLICE TRAPS
20.
Prior to 1996, our law
countenanced the use of police traps in order to bring to justice
persons who were suspected of committing
an offence.   It
was generally recognised, however, that the danger existed of the
traps going too far and persuading,
or even enticing, someone to
commit an offence which he would not otherwise have committed.
On the other hand, our law did
not recognise a defence of entrapment
as such.
21.
A useful summary of the
position is to be found in S v Petkar
1988 (3) SA 571
(A), where
Smalberger JA said at 576
“
Much has been said
in the past about the use of traps and the many undesirable features
of the system. I do not propose to review
the authorities on the
point, and what has been stated in them. It will suffice for the
purposes of the present matter to refer to
extracts from two
authorities. In R v Clever; R v Iso
1967 (4) SA 256
(RA) at 257H
Quenet JP stated:
'In the case of
persons who have previously been convicted, trapping has the
undesirable feature that it puts temptation in the way
of those least
able to resist. In any case, such persons might not have offended
again but for the fact that a trap was used.'
And later he added (at
258E):
'In
cases where there is general recognition of the propriety of
employing the system the greatest care should be taken to see that
the trap is a fair one. Verbal persuasion should not be used.'
In S v Van Pittius and
Another
1973 (3) SA 814
(C) it appeared that  one of the
appellants had been importuned three times by the traps before he
agreed to sell them wine
illegally. With regard thereto Corbett J
said the following (at 819A - C):
'The artificial
propagation of crime by means of police traps has "many
distasteful features" (see R v Clever
1967 (4) SA 256
(RA) and
the authorities cited therein) and its justification is based partly
upon the belief on the part of the authorities that
the accused has
been engaged in criminal conduct of a similar nature in the past and
is likely to continue to do so unless checked.
The fact that an
accused has to be importuned several times before agreeing to the
criminal conduct proposed by the trap hardly indicates
a general
predisposition upon his part to commit this type of crime and this
is, generally speaking, not an appropriate case for
an artificially
generated offence. Moreover, this kind of approach offends against
the belief that the trap should be a fair one
and that in general
verbal persuasions should be avoided (see R v Clever (supra at
258)).'
I am in full agreement
with the sentiments expressed in the above-quoted passages. In the
present instance the trap was not a fair
one. Verbal persuasion - or
at least something akin to it - was used. An apparent weakness was
exploited. A friendship and situation
of trust was abused. True, the
appellant was not an entirely unwilling participant in the offence.
He believed that he would ultimately
'get  away with it' - a
belief no doubt shared by most people who embark on criminal conduct
of this kind. But the fact remains
that the appellant did initially
offer resistance, and this resistance was largely broken down by
unfair methods. These considerations
in my view substantially reduce
the appellant's moral culpability.”
22.
Section 252A reads as
follows:-
252A Authority to make
use of traps and undercover operations and admissibility of evidence
so obtained
(1)
Any law enforcement officer, official of the State
or any other person authorised thereto for such purpose
(hereinafter
referred to in this section as an official or his or her agent) may
make use of a trap or engage in an undercover operation
in order to
detect, investigate or uncover the commission of an offence, or to
prevent the commission of any offence, and the evidence
so obtained
shall be admissible if that conduct does not go beyond providing an
opportunity to commit an offence: Provided that where
the conduct
goes beyond providing an opportunity to commit an offence a court may
admit evidence so obtained subject to subsection
(3).
(2)
In considering the question whether the conduct
goes beyond providing an opportunity to commit an offence,
the court
shall have regard to the following factors:
(a)
Whether, prior to the setting of a trap or the use of an undercover
operation, approval, if it was required,
was obtained from the
attorney-general to engage such investigation methods and the extent
to which the instructions or guidelines
issued by the
attorney-general were adhered to;
(b)
the nature of the offence under investigation, including-
(I)
whether the security of the State, the safety of the public, the
maintenance of public order or
the national economy is seriously
threatened thereby;
(ii)
the prevalence of the offence in the area concerned; and
(iii)
the seriousness of such offence;
(c)
the availability of other techniques for the detection, investigation
or uncovering of the commission
of the offence or the prevention
thereof in the particular circumstances of the case and in the area
concerned;
(d)
whether an average person who was in the position of the accused,
would have been induced into the commission
of an offence by the kind
of conduct employed by the official or his or her agent concerned;
(e)
the degree of persistence and number of attempts made by the official
or his or her agent before the accused
succumbed and committed the
offence;
(f)
the type of inducement used, including the degree of deceit,
trickery, misrepresentation or reward;
(g)
the timing of the conduct, in particular whether the official or his
or her agent instigated the commission
of the offence or became
involved in an existing unlawful activity;
(h)
whether the conduct involved an exploitation of human characteristics
such as emotions, sympathy or friendship
or an exploitation of the
accused's personal, professional or economic circumstances in order
to increase the probability of the
commission of the offence;
(I)
whether the official or his or her agent has exploited a particular
vulnerability of the accused
such as a mental handicap or a substance
addiction;
(j)
the proportionality between the involvement of the official or his or
her agent as compared to that
of the accused, including an assessment
of the extent of the harm caused or risked by the official or his or
her agent as compared
to that of the accused, and the commission of
any illegal acts by the official or his or her agent;
(k)
any threats, implied or expressed, by the official or his or her
agent against the accused;
(l)
whether, before the trap was set or the undercover operation was
used, there existed any suspicion,
entertained upon reasonable
grounds, that the accused had committed an offence similar to that to
which the charge relates;
(m)
whether the official or his or her agent acted in good or bad faith;
or
(n)
any other factor which in the opinion of the court has a bearing on
the question.
(3)
(a)     If a court in any criminal
proceedings finds that in the setting of a trap or the engaging
in an
undercover operation the conduct goes beyond providing an opportunity
to commit an offence, the court may refuse to allow such
evidence to
be tendered or may refuse to allow such evidence already tendered, to
stand, if the evidence was obtained in an improper
or unfair manner
and that the admission of such evidence would render the trial unfair
or would otherwise be detrimental to the administration
of justice.
(b)
When considering the admissibility of the evidence
the court shall weigh up the public interest against the
personal
interest of the accused, having regard to the following factors, if
applicable:
(I)
The nature and seriousness of the offence, including-
(aa)   whether
it is of such a nature and of such an extent that the security of the
State, the safety of the public, the
maintenance of public order or
the national economy is seriously threatened thereby;
(bb)   whether,
in the absence of the use of a trap or an undercover operation, it
would be difficult to detect, investigate,
uncover or prevent its
commission;
(cc)   whether
it is so frequently committed that special measures are required to
detect, investigate or uncover it or
to prevent its commission; or
(dd)   whether
it is so indecent or serious that the setting of a trap or the
engaging of an undercover operation was justified;
(ii)
the extent of the effect of the trap or undercover operation upon the
interests of the accused,
if regard is had to-
(aa)   the
deliberate disregard, if at all, of the accused's rights or any
applicable legal and statutory requirements;
(bb)   the
facility, or otherwise, with which such requirements could have been
complied with, having regard to the circumstances
in which the
offence was committed; or
(cc)   the
prejudice to the accused resulting from any improper or unfair
conduct;
(iii)
the nature and seriousness of any infringement of any fundamental
right contained in the Constitution;
(iv)
whether in the setting of a trap or the engagement of an undercover
operation the means used was proportional
to the seriousness of the
offence; and
(v)
any other factor which in the opinion of the court ought to be taken
into account.
(4)
An attorney-general may issue general or specific
guidelines regarding the supervision and control of traps
and
undercover operations, and may require any official or his or her
agent to obtain his or her written approval in order to set
a trap or
to engage in an undercover operation at any place within his or her
area of jurisdiction, and in connection therewith to
comply with his
or her instructions, written or otherwise.
(5)
[not relevant to this judgment]
(6)
If at any stage of the proceedings the question is
raised whether evidence should be excluded in terms of subsection
(3)
the burden of proof to show, on a balance of probabilities, that the
evidence is admissible, shall rest on the prosecution: Provided
that
the accused shall furnish the grounds on which the admissibility of
the evidence is challenged: Provided further that if the
accused is
not represented the court shall raise the question of the
admissibility of the evidence.
(7)
The question whether evidence should be excluded
in terms of subsection (3) may, on application by the accused
or the
prosecution, or by order of the court of its own accord be
adjudicated as a separate issue in dispute.”
23.
Section 252A must be
viewed against the provisions of section 35 of the Constitution of
the Republic of South Africa.  The relevant
sub-sections are (3)
which states that every accused person has a right to a fair trial,
and (5) which reads:
“
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.”
24.
The interplay of the two
statutes was discussed in S v Reeding and Another
[2005] ZAWCHC 13
;
2005 (2) SACR 631
(C), where Bozalek J said at  639/640
“
The approach to be
adopted in considering the admissibility of trap evidence, and which
marries the terms of s 252A(2) and s 35(5),
advocated by Du Toit et
al (at 24-134), is to consider, using the criteria listed in ss (2),
whether admission of the evidence has
without doubt not rendered the
trial unfair or is otherwise not detrimental to the administration
of  justice. In my view, however,
this standard of proof is
inappropriate in the context of determining the admissibility as
opposed to the weight of the evidence
and, moreover, sets the bar too
high. Section 252A(6) provides instead that an onus rests on the
State to prove the admissibility
of evidence on a balance of
probabilities. This, in my view, is the correct standard of proof if
Du Toit's general approach is to
be followed.
”
25.
In order to give effect
to and implement the provisions of the Constitution and section 252,
the Director of Public Prosecutions (“DPP”)
has laid down a set
of procedural guidelines.  These were placed before the
magistrate as exhibit D and were elaborated on by
the witness Brink
who testified for the State in the trial within a trial.
26.
As appears from the
above, subsection 252A(1) sets out the basic principle, namely that
evidence of a trap or undercover operation
is admissible unless the
trap goes further than providing an opportunity to commit an offence
(which is tested by the factors set
out in subsection (2)), and if it
does, then the court has a discretion to admit such evidence (which
discretion is exercised in
accordance with the factors set out in
subsection (3)).
27.
On the evidence, it
appears to me that the undercover operation showed a number of
features which qualify as factors in terms of section
252A(2) tending
to show that the operation went further than merely providing an
opportunity to commit the offence:
a.
There is certainly some
doubt as to whether the formal guidelines regarding approval or
authorisation of this operation were strictly
adhered to.
The onus was on the State to prove the admissibility of the trap
evidence.  It was common cause that
this was a type of operation
requiring prior written approval.  The evidence is not
conclusive that such written approval was
received prior to the
operation commencing.
b.
The offence in question
does not threaten the security of the State, the safety of the public
or the maintenance of public order;
whether the national economy is
seriously threatened by IDB is debatable.  It does not appear
that IDB is particularly prevalent
in the Worcester area.
c.
On the first appellant’s
version, I am inclined to believe that many people might have been
induced to buy the diamonds on the strength
of what he was told, and
the number of times he was told it.  Then too, the offering of
the diamonds at almost half their value,
and offering them
effectively for a down payment of a quarter of their value, might
well also have induced many people into buying
them.
d.
Again, on the first
appellant’s version, he resisted the temptation to commit the crime
8 or 9 times when telephoned.  Only
on about the tenth approach,
and only when Molefe actually came to Worcester, did first appellant
yield to temptation.  And
if one has regard to the extremely
amateurish way in which he went about buying the diamonds, it lends
credence to his version.
He had no knowledge of diamonds, and
no way of establishing the value of the diamonds.  He had no
money available, not even
R20000, and for this reason had to involve
second appellant, who borrowed the money from his father.
e.
Although no evidence was
led about first appellant’s financial position, it is common
knowledge that policeman are not paid particularly
well.
Accordingly, the repeated suggestion that by buying the diamonds
first appellant would make a lot of money would
have been a
significant inducement to him.
f.
There is also some doubt
in my mind whether, before the trap was conceived, there was a
reasonable suspicion that the first appellant
had committed or was
committing any offence of IDB or similar to IDB.  The evidence
of the State was hardly convincing, and
the fact that the informant
was not called leaves a large gap between the suspected policeman
“Carl” in Paarl, and the first
appellant in Worcester.
28.
Having regard to all the
above, I am constrained to differ from the magistrate.  In my
view, the police undercover operation
went considerably further than
merely providing an opportunity for the first appellant to commit the
offence.  It induced him
into buying diamonds illicitly whereas
but for the repeated importuning, the persistent reminders of the
large profits to be made,
and the discounting of the purchase price
to bargain basement levels, he would probably not have done so.
29.
The enquiry does not end
there.  Section 252A(3) provides that if a court finds that the
setting of a trap goes further than
merely providing an opportunity
to commit the offence, it may refuse to allow such evidence to stand,
30.
The issue of a trap used
in relation to IDB was discussed in S v Spies and Another
2000 (1)
SACR 312
(SCA).  Although there are similarities between that
case and the present one, I am of the view that it is distinguishable
on
the facts.  The SCA came to the conclusion that it could not
be said that the accused had been induced to purchase the diamonds
because of fundamentally unfair conduct on the part of the police.
The main contention was that the diamonds had been sold
at far less
than their real value.  But the Court pointed out that they had
initially been offered at their true value, and
that the accused had
bargained down the price. It was clear also, from the fact that the
accused had brought with them equipment
for weighing the diamonds
when they went to meet with the trap, that they already then intended
to buy the diamonds.
31.
In the present case, the
conduct of the police, on first appellant’s version, went
considerable further than that in the Spies case.
And, but for such
conduct, i.e. the numerous importuning phone calls, the fact that the
police came to Worcester to deal with the
appellant, and the
reduction of the purchase price, there is a real likelihood that the
appellant would not have committed the crime.
32.
Turning to the factors in
subsection 252A(3), many of them are not relevant to the present
case.  In weighing up the public interest
against the
appellants’ interests, I bear in mind that it is necessary and
desirable to bring to justice those who are guilty of
IDB, although
little evidence was led regarding the seriousness and prevalence of
the crime.  Equally, if not more important,
however, is the
necessity to protect innocent members of the public from being
induced into committing crimes by overzealous undercover
operatives.
The literature is full of warnings against the potential pitfalls of
police traps going too far.  See, for
instance “Eating the
forbidden fruit: the morality of police trapping practice”, by N
Bohler which appeared in Codicillus, vol
XXXX No 2 (Oct 1999).
33.
I am of the view that the
right of appellants to a fair trial may indeed have been infringed,
and also that to admit the evidence
relating to the police trap would
be detrimental to the administration and interests of justice.
It can hardly be conducive
to the administration of justice for
innocent persons to be induced into committing offences which they
would otherwise have not
committed.   The present case may
be close to the borderline but in my view it falls on the exclusion
side of the borderline.
34.
It follows from the above
that the undercover operation which trapped the appellants, would not
pass the test of section 35 of the
Constitution.   I am
thus of the view that the evidence relating to the police trap should
have been excluded.
35.
As far as the position of
second appellant is concerned, he was clearly at the wrong place at
the wrong time.  Or, more correctly,
first appellant happened to
be at second appellant’s butchery at the wrong time.  Caught
up in the events, he was clearly
dazzled by the inducement of untold
wealth, so much so that he went and borrowed the necessary funds from
his father.
36.
If one excludes the
evidence of the undercover operation, this would apply to second
appellant as well.  Without such evidence,
his conviction, too,
cannot be sustained.
37.
I would accordingly
uphold the appeals, and set aside the convictions and sentences of
both appellants.
_____________________
ENGERS
AJ
I
agree.   The appeal is upheld.  The convictions and
sentences are set aside.
____________________
NC ERASMUS J
_____________________
N
ERASMUS  J