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1985
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[1985] ZASCA 33
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S v Scholtz and Another (419/83) [1985] ZASCA 33 (24 May 1985)
419/83
mp
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter of:
ROBERT MICHAEL SCHOLTZ
First Appellant
(First Appellant
a quo
) (Accused No. 1
a
quo)
TREVOR MICHAEL HART-JONES
Second
Appellant
(Second Appellant
a quo
) (Accused No. 2
a
quo)
and
THE
STATE
Respondent
CORAM
: TRENGOVE, CILLIé et HOEXTER,
JJA
HEARD:
6 May 1985
DELIVERED
: 24 May 1985
JUDGMENT
Hoexter, JA
2.
HOEXTER, JAIn the regional court for the district of Vanderbijlpark the
appellant and one Hart-Jones, two males in their late thirties,
were jointly
charged with a contravention of sec 84(1)(a) of the Precious Stones Act, 73 of
1964. In what follows I shall refer to
the appellant's fellow-accused at the
trial as "Jones"; and to the appellant and Jones jointly as "the two accused".
The State case
was that on 25 May 1982 the two accused had bought 11 unwrought
diamonds weighing 94,24 carats. The two accused pleaded not guilty.
They were
represented at their trial by an attorney and at the close of the State case
each testified in his own defence. The trial
court found the two accused guilty
as charged and imposed on each a fine of RlO 000 or two years imprisonment, and,
in addition thereto,
a further two years imprisonment whereof the operation of
one year was conditionally suspended for five years. An order was also
made for
the forfeiture to the State of an amount of R27 990 given in exchange for the
said diamonds. Against their
convictions ......
3.
convictions only, the two accused appealed to the Transvaal Provincial
Division. HEYNS, AJ (in whose judgment VAN NIEKERK, AJ concurred)
dismissed
their appeals but granted the two accused leave to appeal to this Court. There
is now before this Court an appeal by the
appellant alone.
At the time of the events which formed the subject of the trial the appellant
was a seller of semiprecious stones in Johannesburg
where he worked as an agent
for one Ackermann who was a licensed dealer in diamonds. The appellant used the
offices of Ackermann.
Jones lived in Durban but he was the owner of a company in
Zimbabwe which exported gems.
In the immediate vicinity of the Holiday Inn at Vanderbijlpark, and on the
banks of the Vaal River, there is a picnic spot. As a result
of a telephone call
made by one Jacobs to the appellant on 25 May 1982 the
two
4.
two accused on that day travelled in the accused's car to Vanderbijlpark.
Ackermann was in the car with the two accused. They dropped
Ackermann in
Vanderbijlpark and proceeded to the Holiday Inn where they met Jacobs who had
also arrived there by car. Jacobs took
the two accused to the picnic spot
aforementioned where the appellant negotiated with one Zulu with a view to the
purchase of 11
unwrought diamonds in the possession of Zulu. The value of these
diamonds was then R97 223. The upshot of the negotiations was that
Zulu handed
over the diamonds to the appellant and the latter gave to Zulu a briefcase
containing bank-notes to the value of approximately
R28 000. Following this
exchange the two accused and Jacobs got into the appellant's car. The appellant
was behind the wheel and
Jones sat in the passenger's seat next to him with the
diamonds at his feet. Jacobs was in the back of the car. Unbeknown to the
two
accused both Jacobs and Zulu were
Detective-Sergeants
5. '
Detective-Sergeants in the SAP attached to the Diamond and
Gold Branch.
Moreover, the proceedings at the picnic spot
had been observed by other
members of the Diamond and Gold
Branch, including a Captain du Preez. The
departure of the
appellant's car from the picnic spot was prevented by
the
sudden appearance upon the scene of a police car. Shortly
thereafter
Captain du Preez identified himself to the two
accused and explained to them
the true identities of Jacobs
and Zulu. The police took possession of the
diamonds and
the money. In the boot of the appellant's car the police
found two further briefcases and a battery-operated diamond
scale. The one briefcase in the boot belonged to the
appellant and contained notebooks and papers. The other
briefcase in the boot was the property of Ackermann.
Ackermann's briefcase contained documents and. a quantity of
money. In
separate motor vehicles the two accused were
removed to the Vereeniging Police Station.
The
6.
The exchange of diamonds and cash briefly described above was the
culmination of a process of negotia= tion extending over a period
of nearly
three months. For an assessment of the probabilities in the case it is necessary
to indicate, if only in broad outline,
how protracted and elaborate the
negotiations were. They were initiated by a business associate of Jones called
David Adams. On 21
February 1982 Jones returned to South Africa after a business
trip by air to London. Upon Jones's arrival at Jan Smuts Airport he
met Jacobs
for the first time. Jacobs, under the assumed name of "Dave", was introduced to
Jones by David Adams. At this meeting,
and at later meetings with the one or
other or both the two accused, Jacobs pretended to be an intermediary in illicit
diamond trafficking.
On this, and also on subsequent occasions, "Dave" was able
to muster sundry other members of the Diamond and Gold Branch who posed
as
illicit diamond dealers and who outwardly created
the
7.
the impression that they were fearful of apprehension by the police. The
deception was successful. Jones was taken in and in due course
the appellant was
likewise duped.
The negotiations at Jan Smuts Airport on 21 February 1982 took place in a
parked car. Jones inquired of Jacobs whether he had bought
diamonds. Jacobs
replied that he had not, but he went to call Det Sgt Pindi who had been waiting
nearby. Pindi produced a number
of diamonds which Jones examined with the aid of
a magnifying glass. There was some haggling over price but no sale eventuated.
On
11 March 1983 Jones and Jacobs met again at Jan Smuts airport. On this
occasion Jones suggested that Jacobs should try to obtain
a large parcel of
diamonds worth Rl0O 000. The next meeting between them was in Johannesburg
during the morning of 15 March 1982;
and they met again during the afternoon of
the same day when, for the first time, Jones was accompanied by the appellant.
The
appellant
8.
appellant mentioned that he had money and he inquired of Jacobs whether the
latter could get hold of diamonds. Jacobs replied in the
affirmative and said
that he had friends in South-West Africa.
Jacobs,, and the two accused met again in Johannesburg during the morning of
7 May 1982. In the appellant's motor car they drove to
and parked at Jan Smuts
Airport. There Det Const Sotowe was held out to the two accused as one of
Jacobs's friends from South-West
Africa. Sotowe produced diamonds which the
appellant examined and then returned to Sotowe. A further but abortive meeting
between
the two accused and Jacobs took place in the afternoon of the same day
at the Millpark Holiday Inn, during the course of which it
was agreed that they
would meet again on the following day. During the morning of 8 May 1982, and at
a parked car at Jan Smuts Airport,
Jacobs introduced
Det Sgt "Zulu" to the
two accused under the name of "Joseph".
Zulu ......
9.
Zulu produced a parcel of diamonds for their inspection and thereupon
the appellant fetched a diamond scale from the boot of the car.
The appellant
weighed each diamond in turn; recorded its weight; wrapped it up separately; and
marked the package so made by him
with a coloured pencil. The diamonds were then
returned to Zulu. Jacobs next presented Det Const Nkosi, in the guise of an
illicit
diamond seller, to the two accused. Nkosi likewise produced diamonds for
the inspection of the two accused. The appellant observed
the same procedure
with each diamond before returning them to Nkosi. At that juncture, and at the
request of the appellant, Sotowe
was again summoned to produce the diamonds
previously exhibited by him. Once again the appellant followed the same
procedure of weighing,
recording and wrapping up of individual stones before the
diamonds were returned to Sotowe. Haggling over the price followed. The
appellant offered to pay R17 000 for the diamonds. Jacobs said that his friends
wanted R86 000.
No
10.
No agreement was reached.
On 10 May 1982 the appellant met Jacobs in Johannesburg and was informed by
the latter that his Southwest African friends had gone
back home. However, the
appellant made an offer to buy for R28 000 the parcel of diamonds exhibited to
him by Zulu on 8 May; and
he gave Jacobs his telephone number. On 25 May 1982
Jacobs telephoned the appellant to inform him that his friends had returned from
South-West Africa and that they were at the Vanderbijlpark Holiday Inn. The two
accused met Jacobs at the Holiday Inn, and the events
following thereon have
already been described.
Immediately after the two accused had pleaded not guilty at the trial their
attorney indicated the nature of their defence by making
the following statement
to the regional court:-
"The
11.
"The accused will not deny that they were involved in negotiations with
certain persons who subsequently, it transpired, were members
of the South
African Police and informers
regarding the diamonds The defence of
the accused will be that at no time did they intend entering into an illegal
transaction with the sellers but at the time money and
diamonds exchanged hands the object of
Accused No 1 and 2 at that stage was to have the persons with whom they were
negotiating arrested
by the police The intention was in fact to
inform the police and have these people arrested and charged."
When they themselves came to testify at the trial the appellant and Jones
each gave evidence in support of the defence earlier adumbrated
by the attorney.
Although there is now before us the appeal only of the appellant, a proper
understanding of the case makes it necessary
to examine the testimony of each of
the two accused. I deal first with the appellant's own evidence.
The appellant told the trial court that, with a view to a possible
transaction involving diamonds, he had
been
12.
been introduced by Jones to Jacobs and David Adams. After his first meeting
with these two men he had concluded that they were "illegal
dealers" and he had
informed Jones of his view.' Although he was not prepared to become involved in
any illegal diamond transaction,
so testified the appellant, he had nevertheless
persisted in his negotiations with Jacobs and his confederates for the following
reasons. Although their suspicions were groundless, the police suspected the
appellant of involvement in trafficking in diamonds;
and in his dealings with
the dealers to whom Jones had introduced him he saw an opportunity of going
through the motions of buying
unwrought diamonds from the sellers and then
forthwith betraying them to the police. By so doing, so the appellant explained,
he
would kill two birds with one stone : the unfounded suspicions about him
which the police had harboured would be at once dispelled;
and at the same time
he would qualify for the payment of a police reward in an amount
equivalent
13
equivalent to one-third of the value of the diamonds that he had
pretended to buy from the illegal sellers. The "illegal dealers"
concerned were,
so testified the appellant, "talking very large amounts". The appellant's cash
resources, on the other hand, were
limited; and in order to put his plan into
execution the appellant borrowed an amount of R30 000. He further told Jones
that the
latter would get paid "if the thing was done successfully my way", but
no specific amount was mentioned or agreed upon by the two
accused.
The appellant said that before 25 May 1982
he had explored with Jacobs the possibility that the sellers might agree,
against payment of a deposit, to allow the two accused to
remove the diamonds
offered by Zulu in order to have them valued by a third party. Pursuant hereto,
and in the course of his telephone
conversation with Jacobs on 25 May 1982,
Jacobs informed the appellant (I quote from
the
14.
the appellant's evidence in chief):-
"We've agreed that you would bring money and leave R28 000 with them as
security and be able to take the diamonds to a gentleman,
that you've arranged
to have it valued with, in Vanderbijlpark and then come back and do a
negotiation, a deal with them."
According to the appellant Jones happened to be with him in his office at the
time of the telephone call by Jacobs. Having concluded
the telephone
conversation with Jacobs the appellant explained to Jones what he proposed to do
at the meeting with the "illegal sellers"
at the Vaal River. He would show them
R28 000 in a briefcase which he would
thereafter hand over to Jones. The appellant would then go
off in his car, taking the diamonds with him and accompanied
by One of the "illegal sellers". He would be bound ostensibly
for the valuer but in reality for the police. Meanwhile
Jones would remain at the Vaal River with the R28 000 and
the rest of the "illegal sellers", awaiting the return to
the....
15.
the scene of the crime of the appellant, duly reinforced by the police.
As the two accused were leaving, the office, so testified the appellant,
Ackermann asked them where they were going. Hearing that
they proposed a brief
visit to Vanderbijlpark, Ackermann requested them to give him a lift to that
town. The appellant went on to
say that he told Jones not to disclose their
designs to Ackermann during the journey to Vanderbijlpark. Upon their arrival at
Vander=
bijlpark Ackermann was dropped off in town and the two accused drove on
to the Holiday Inn where they met Jacobs. Driving ahead of
the appellant's car
Jacobs led them to the picnic spot in the vicinity of which the "illegal
sellers", including Zulu, were waiting.
Some discussion ensued, whereafter Zulu,
who seemed disinclined to do business with the appellant, asked to be shown
money. The appellant
opened the boot of his car and showed Zulu his
briefcase
containing
16.
containing some R28 000 consisting of bank-notes tied in bundles. The
appellant then suggested that Jones, with the R28 000 in his
possession, should
stay behind with Zulu and that Jacobs should accompany him (the appellant) by
car to have the diamonds valued.
According to the appellant Zulu did not wish
Jones to remain. Zulu and the appellant exchanged the diamonds and the
appellant's briefcase
con= taining the money and the accused, Jones and Jacobs
got into the appellant's car. Inside the car the appellant handed the diamonds
to Jones. As the appellant tried to drive off a police car blocked their way and
Captain du Preez explained to the two accused that
they had been the victims of
a "diamond trap". At the request of Captain du Preez, and in the presence of the
two accused, Jacobs
and Zulu respec= tively reported on what had taken place.
Thereafter the appellant asked to speak aside to Captain du Preez. His
request
was granted and the appellant then explained to
Captain
17.
Captain du Preez that it was "all a big mistake"; and that in fact he and
Jones had been engaged in trapping the "illegal sellers".
At the Vereeniging
Police Station the appellant elected to make a statement. The body of that
statement and certain questions by
Captain du Preez and answers by the appellant
in elucidation of it, are quoted hereunder:-
"Omrede ek alreeds verdink is van diamanthandel het ek gedink as ek
gesmokkelde diamante met hulle verkopers aan die polisie oorhandig
daar 'n
beloning van omtrent 'n derde vir my sou wees en dat ek my posisie op die vorige
agterdog sou opklaar, maar ongelukkig is
my planne in die wiele gery voor ek
daarmee kon slaag.
Dit is al wat ek op hierdie stadium wil sê. Ek is bereid om enige vrae
te beantwoord.
Vraag
: Die rapporte wat S/Sers Jacobs en Zulu
in u teenwoordigheid
aan my gemaak het, was
dit korrek? - Antwoord: Ja.
Vraag
: Wat was die plan waarvan u in u ver=
klaring praat? -
Antwoord
: Ek wou die persone
en die diamante by die polisie gaan oorhandig.
Vraag
: Het u al met die polisie oor hierdie
aangeleentheid gepraat of
dit onder hul aandag
gebring? -
Antwoord
:
Nee".
The
18.
The version given to the trial court by Jones may be summarised as follows.
He had been in "semi-partnership" with David Adams in
a business which exported
religious ornaments to Jeddah, and a fairly close friendship developed between
them. Adams told Jones that
he was looking for an outlet, beyond South Africa,
for uncut diamonds, and while he was on a business trip to England Jones
discussed
the matter with his agent in that country. The meeting at Jan Smuts
Airport on 21 February 1982 took place as a result of telephone
calls to Adams
from Jones in England. In subsequent meetings with Jacobs and Adams the latter,
so testified Jones:-
" kept pressurising me that there
were
masses of parcels, big parcels,
and please
couldn't we do anything about it "
The solicitations of Adams induced Jones to approach the appellant. The
accused reacted to this approach by saying that he was already
suspected of
having been involved in an
illicit
19.
illicit diamond transaction and that he was not interested in I.D.B.. The
appellant nevertheless displayed interest in the possibility
of "any deal being
done above board." Thereafter Jones introduced the appellant to Jacobs and
Adams. After the appellant's first
meeting with these two men he told Jones that
the business proposed by Jacobs and Adams "was not kosher"; and that the
appellant
"would like to handle it his way." Exactly what the appellant had in
mind, however, was revealed to Jones for the first time on the
morning of 25 May
1982 in the office of the appellant. In his evidence in chief Jones gave the
following account of the appellant's
explanation to him:-
"For the first time .... he said that he was going to trap. He informed me
that there was R28 000 involved. His idea was that he would
leave me with the
R28 000 whilst he took diamonds and one of the three, either Zulu or Mr Jacobs,
or the third party that I don't
know his name. Specifically I was to hold that
R28 000 whilst he left the scene.
What
20.
What was he going to do after leaving the
scene? - To the police station, he was
going to take one of the three to the police station."
However, as events actually unfolded at the meeting on the banks of the Vaal
River, Zulu made it clear that there was no reason for
Jones to remain with the
"illegal sellers" while the appellant went off with the diamonds; and therefore
Jones got into the car with
the appellant. The appearance of the police shortly
afterwards left Jones highly confused. At the Charge Office in Vereeniging his
state of confusion was such that he elected at first not to make a statement. A
short while later, however, he sought and obtained
from Captain du Preez
permission to ask the appellant a question. He then asked the appellant -
"whether he was going to do as planned"
to which the appellant replied in the affirmative. Thereupon
Jones
21.
Jones sat down and himself wrote out a fairly lengthy statement, the relevant
portion whereof reads as follows:-
"It was at a breakdown stage in legal dealings that Mr Scholtz informed me
that he was most anxious to clear his name with his previous
suspicion that he
was going to play the game his way. (I was not to worry as he would pay me).
This arrangement was very loose).
To my best knowledge he met with the parties
on many occasions in order that they fulfil their promises of a big (very big)
parcel
coming to Cape Town. I was not present at most meetings.
I flew up from Durban yesterday (24.5.82) for business totally void from this
account.
I have not had any contact with Mr Scholtz for a couple of weeks, in which
time he had met with the parties and meetings were made.
This morning I was made fully aware of the full impact of what Mr Scholtz was
going to do. (Would express myself better verbally
at this point.)
I would like to state that:-
(1) At the best of times my thinking has been confused (confined?) to within the
law of South Africa.
(2) At the time of my arrest I honestly
state
that Mr Scholtz
given time would have proved
this arrest in reverse.
(3)I
22.
(3) I believe that Mr Scholtz was at all times working within the law and the
clearance of his previous suspicion."
The following four witnesses were called for the prosecution: Det Sgt Jacobs;
Det Sgt Zulu; Captain du Preez; and Ackermann. Affecting
the main features of
the negotiations between the two accused and the "illegal sellers" up to the
stage of the events at the picnic
spot when the two accused and Jacobs got into
the appellant's car, the State and defence versions differ no more than in
regard to
points of immaterial detail. As to the subsequent events on 25 May
1982, following the intervention of Captain du Preez, a number
of more
significant differences between the State and defence versions are to be
noticed. These differences relate more particularly
to the issues (1) whether or
not the appellant, on becoming aware of the police, urged Jones to get rid of
the containers holding
the diamonds, and (2) whether or not the appellant during
his private conversation
with
23.
with Captain du Preez at the picnic spot claimed that he was working in
league with the head of the Diamond and Gold Branch of the
South African Police.
It is necessary in the above connection to make brief reference to certain
passages in the evidence of Det
Sgt Jacobs and Captain du Preez. It is common
cause that after the appellant had made his written statement (quoted earlier in
this
judgment) to Captain du Preez at the Vereeniging Police Station, the
appellant also made certain oral statements to Captain du Preez
in which he made
reference both to the head of the Diamond and Gold Branch and to Ackermann. In
order to weigh the probabilities
in the case it is further necessary to examine
the content of the appellant's said oral statements to Captain du Preez; and to
consider
the nature and extent of the cross-examination of Ackermann undertaken
by the appellant's attorney.
Det
24.
Det Sgt Jacobs told the trial court that as the appellant's car began to move
off from the picnic spot and when the appellant became
aware of the approach of
the police car, the appellant said the following to Jones in respect of the two
diamond containers:-
"There is that car, throw it outside, that thing, throw it outside."
Both the appellant and Jones denied in their evidence that the appellant had
said any such thing to Jones. It has been mentioned that
before the two accused
were removed from the picnic site the appellant spoke aside to Captain du Preez.
In his evidence in chief
Captain du Preez gave the following account of what the
appellant said to him on this occasion:-
"Daar het beskuldigde 1 aan my verduidelik dat hy eintlik saam met brigadier
Erasmus werk.
Brigadier Erasmus? - Ja, Edelagbare, dit
is die hoof van die diamantafdeling, werk
en
25.
en dat hy besig was om die Swartes met die diamante te vang. Ek het horn
verwittig dat ek sal ingaan daarop."
Captain du Preez's description, during his evidence in chief, of the
appellant's oral statement subsequent to his written statement,
was the
following:-
" Dat hy" (the appellant) "nie eintlik self vir Erasmus ken nie, dat hy van
mnr Ackermann verneem het dat brig Erasmus blykbaar vir
Ackermann sou gesê
het dat as hulle Swartes of persone met ongeslypte diamante vang en na die
polisiestasie toe bring, hulle
'n derde beloning kon kry. Dat mnr Ackermann op
daardie stadium naby Vanderbijlpark-polisiestasie gewag het, en alles sal kan
staaf.
When Captain du Preez was cross-examined it was put to him that during the
appellant's private conversation with him at the picnic
spot the appellant had
made no mention of Brigadier Erasmus; and that the appellant had referred to the
Brigadier for the first time
at the Vereeniging Police Station after he had made
his written statement. Captain
du Preez
26.
du Preez was adamant that at the picnic spot the appellant had made specific
reference to Brigadier Erasmus. It should be noticed
further that in regard to
the appellant's later oral statement the cross-examiner suggested to Captain du
Preez that the appellant
had said to him:-
"Ja luister hierso, eintlik het Wimpie (dit
is nou Ackermann) gesê ja ons moet dinge
so doen en so doen."
Captain du Preez conceded that the appellant had made a
report to him in
these terms. Indeed, he said that on
the strength thereof he went to
Vanderbijlpark in search of
Ackermann. I should mention that it is common
cause that
Captain du Preez and the appellant travelled to
Vanderbijlpark
by car and found Ackermann. Ackermann was then also
taken
to the Vereeniging Police Station; and during the journey
the appellant and Ackermann were' asked not to discuss the
case.
As
27.
As to whether or not he had mentioned the name of Brigadier Erasmus in his
private conversation with Captain du Preez at the picnic
spot, the appellant
vacillated considerably in giving his own evidence. Despite his attorney's
challenge of Captain du Preez's evidence
on this point, the appellant started
off in his evidence in chief by saying that he did not know whether he had
mentioned Brigadier
Erasmus to Captain du Preez at that stage, but that he might
have done so. When the matter was pursued with him by the presiding
magistrate,
the appellant gave the following evidence:-
"
BY THE COURT
: Are you denying that you mentioned Brigadier Erasmus at
the riverside?
Your Honour, if I must say it' on oath,
'yes' or 'no', I'd rather say 'no', because I can't remember mentioning
it."
When further pressed' the appellant said that he was not certain and "that
there might have been the slightest possi= bility" that
he did mention it.
Before
28.
Before examining the tenor of the cross-examination of Ackermann it is
necessary to see what account the appellant himself gave, during
his evidence in
chief, affecting his oral statement to Captain du Preez about the role of
Ackermann; and what his reasons for the
statement were. The appellant testified
thus:-
"Now could you explain what discussion took place, if any, between you and du
Preez,
prior to going to fetch Mr Ackermann? -
I had told Captain du Preez that I was trying to catch these people with
diamonds. I had also told him that Mr Ackermann whom we were
now going to fetch,
would be able to enlighten him more, for my benefit.
In what respect was this? - Well that I
was hoping he would remember or recollect and tell Captain du Preez when he
realised what happened, that it was actually he who told
me that it was my duty
to report or arrest anybody that deals in illegal diamonds because it was not
good for business and that I
had heard it from him that he knew or had been
informed that we were entitled to about a third of the
value of the diamonds when an arrest was
successfully made."
Against
29.
Against this background the cross-examination of Ackermann by the appellant's
attorney assumes particular significance. Ackermann's
evidence in chief was very
brief. The witness-said that the appellant had worked for him as an agent and
that on 25 May 1982 the
two accused had given him a lift to Vanderbijlpark and
dropped him off at a restaurant where they would pick him up again at about
3
pm. He made plain that he went to Vanderbijlpark entirely about his own business
and that he had no interest in what the two accused
were about. Concerning
Brigadier Erasmus and what the witness might have said to the appellant in this
regard, the relevant portion
of Ackermann's cross-examination is set forth in
full hereunder:-
"In die verlede net u al met beskuldigde nr 1
bespreek die probleme wat
die diamantbedryf
beleef as gevolg van onwettige handel met
diamante, en
dit is nou dwars oor die hele
wêreld? Met ander woorde hoe die
onwettige
diamantbedryf die prys van diamante byvoorbeeld
beinvloed?
Ek
30.
Ek sou sê ja ek was redelik uitgesproke daaromtrent.
Hy sal sê dit is inderdaad so, jy is taamlik uitgesproke in hierdie
verband? En dat u met geleenthede genoem het, gesprekke
wat u byvoorbeeld met
brigadier Erasmus gehad het in verband met onwettige diamanthandel hoe dit
toeneem en die stappe wat gedoen
word om
dit te bekamp? - Ek kan nie spesifieke
geleenthede onthou nie, maar dit is moontlik."
So much for the main features of the evidence in the case. In its reasons for
judgment the trial Court recorded its impression that
on all material aspects
the police witnesses had given their evidence in a clear and satisfactory
manner. Dealing with the quality
of the two accused as witnesses, the regional
magistrate observed:-
"As to the crux of the matter, namely . whether or not they had the required
mens rea
, they were both unsatisfactory and untruthful witnesses."
The trial court formed the impression that Ackermann was
"obviously
31.
"obviously uneasy in the witness box". The regional magistrate rejected as
"palpably false" Ackermann's evidence that on the day in
question there had been
no common interest between him and the two accused, and that he had travelled
with them to Vanderbijlpark
purely on his own private business. Of Ackermann the
regional magistrate remarked in his reasons:-
"Ackermann is a businessman in the diamond trade in Johannesburg. He
accompanied the accused to Vanderbijlpark for his own reasons
as he puts it. He
is then dropped in town and leaves his brief case containing R7 000 in the
accused's car. When questioned by the
Court he pretends not to remember how much
was in the briefcase. Asked why R7 000 would have been in the briefcase he
answers that
he usually carries a considerable amount of cash at home, in his
office and on his person. It is not insignificant that the first
two state
witnesses mention a price of R35 000 and that Captain du Preez says that the
agreed price would have been in the vicinity
of R35 000.
Accused No 1 says that if the
diamonds
were valued in excess of R28
000 the difference would be paid. R7 000 happens to be the difference between
R35 000 and R28 000."
These then were the trial court's
impressions
of
32.
of the various witnesses. Before considering
whether the evidence as a whole sustains the conviction of the appellant it is
necessary
to comment briefly on two or three aspects of the regional
magistrate's findings of fact and his reasons for judgment. On all the
evidence
it is not clear whether at the picnic spot there was any definite agreement as
to the total purchase price to be paid by
the appellant for the 11 unwrought
diamonds in the possession of Zulu. Zulu testified that the appellant agreed to
pay him R35 000;
and that the arrangement was that the appellant would leave the
picnic spot simply in order to procure the outstanding balance of
R7 000.
According to the appellant (and for this part of the appellant's story there is
corroboration in the evidence of Jacobs)
the arrangement was that R28 000 was
paid to Zulu as a "deposit" and that the amount of the purchase price would be
finally negotiated
upon the appellant's return to the picnic spot after
valuation of the diamonds by a third party. The trial court did not
resolve
33.
resolve this particular disputed issue but in my view nothing turns on it.
The prohibition contained in sec 84(1)(a) of Act 73 of
1964 is cast in wide
terms. Save as otherwise provided in the Act no person shall -
" buy, deal in or receive by barter,
pledge or otherwise, either as principal or agent, any rough or uncut
diamonds."
Unless in his negotiations with Zulu the appellant entertained the mental
reservation which is the basis of his defence, then on either
version of the
arrangements agreed upon at the picnic spot the exchange of the money for the
uncut diamonds was hit by the provisions
of the subsection.
Reference has been made to the conflict of
evidence in regard to the question whether or not at the picnic spot, and
upon the approach of the police car, the appellant urged
Jones to throw away the
diamonds.. A clear finding that on this issue Jacobs is to be believed, and
that
34.
that the denial of the two accused is to be rejected as false, would serve as
a strong pointer to a guilty state of mind on the part
of the appellant; and it
would be almost wholly destructive of the appellant's version. But likewise in
regard to this conflict of
evidence the regional magistrate has not made any
specific finding of fact either way. It is true, of course, that in general the
trial court was favourably impressed with the calibre of the police witnesses
whereas it found the two accused to be unsatisfactory
witnesses. However, Jacobs
was a police trap and the events at the picnic spot represented the critical
stage in a very sustained
operation by members of the Diamond and Gold Branch in
a bid to ensnare the two accused. And in relation to this cardinal issue Jacobs
was alone in the car with the two accused and therefore a single witness. In
delivering the judgment of the Court
a quo
, HEYNS, AJ, expressed the view
that on this point the testimony of Jacobs had -
"very
35. "... very little if any evidential value".
In all the circumstances of the case, and in the absence of any crisp finding
thereon by the trial court, the proper course seems
to me to place no reliance
whatsoever on this particular statement in the evidence of Jacobs.
The trial court disbelieved the story told by the two accused. Part of their
version was that Ackermann accompanied them to Vanderbijlpark
as a casual
fellow-traveller who was ignorant of the mission upon which the two accused were
to embark at the Holiday Inn. On this
part of the defence version the two
accused were corroborated by the evidence of Ackermann. Ackermann's evidence to
this effect was
rejected by the trial court as manifestly untrue. On this point
the truth or falsity of Ackermann's testimony is not, I consider,
of decisive
importance in weighing the evidence of the appellant. Ackermann's ignorance of
the
nature
35.
"... very little if any evidential value".
In all the circumstances of the case, and in the absence of any crisp finding
thereon by the trial court, the proper course seems
to me to place no reliance
whatsoever on this particular statement in the evidence of Jacobs.
The trial court disbelieved the story told by the two accused. Part of their
version was that Ackermann accompanied them to Vanderbijlpark
as a casual
fellow-traveller who was ignorant of the mission upon which the two accused were
to embark at the Holiday Inn. On this
part of the defence version the two
accused were corroborated by the evidence of Ackermann. Ackermann's evidence to
this effect was
rejected by the trial court as manifestly untrue. On this point
the truth or falsity of Ackermann's testimony is not, I consider,
of decisive
importance in weighing the evidence of the appellant. Ackermann's ignorance of
the
nature
36.
nature of their mission would not necessarily point to the conclusion that
the two accused were bent on exposing illicit dealing in
diamonds; and if
Ackermann had knowledge of the nature of their mission, such knowledge, by
itself, would hardly provide proof that
the two accused were about the illegal
purchase of uncut diamonds. But whether or not Ackermann had knowledge of their
mission no
doubt bears on an assessment of the credibility of the appellant; and
it may be relevant also to an assessment of the probabilities,
because the
evidence suggests that Ackermann was better equipped than either the appellant
or Jones accurately to determine the value
of uncut diamonds. Here it must be
borne in mind, I think, that the trial court's criticism of Ackermann's version
that his business
in Vanderbijlpark was unconnected with that of the two accused
postulates that the money in Ackermann's briefcase left in the boot
of the
appellant's car amounted to R7 000. However, no evidence was led at the trial to
establish that the money in Ackermann's briefcase
was counted by anybody.
Although
Ackermann's ..........
37.
Although Ackermann's evidence shows that he was a somewhat reluctant and
evasive witness, this part of his story is not, I think,
open to criticism in
the particular respect relied upon by the trial court.
The conviction of the appellant depended upon proof beyond reasonable doubt
that at the time when the diamonds and the money exchanged
hands at the picnic
spot the appellant had the requisite
mens rea.
No
onus
rested on
the appellant to convince the trial court of the truth of his version that in
fact he was trying to trap Zulu and expose
him to the police. In order to acquit
the appellant the trial court did not have to believe the appellant's version.
The trial court
was entitled to convict the appellant only if satisfied, not
only that his version was improbable, but in addition that there was
no
reasonable possibility that it was not substantially true.
In
38.
In the estimation of the regional magistrate the appellant was an
unsatisfactory witness. That this impression was well-founded is
borne out, in
my view, by an examination of the appellant's evidence. More particularly in
regard to the issue as to when, for the
first time, and in what fashion, the
appellant in his explanations to Captain du Preez sought to invoke the name of
Brigadier Erasmus,
the appellant was an evasive and unconvincing witness.
A feature in the case which in my view militates strongly against the defence
raised by the appellant is the nature and extent of
the cross-examination of the
State witness Ackermann undertaken by the appellant's attorney. Having regard to
what was suggested
to Captain du Preez during his cross-examination, and bearing
in mind the tenor of the appellant's own evidence, it is reasonable
to expect
that during the cross-examination of Ackermann the whole issue of what Ackermann
(on the defence version)
was
39.
was alleged to have told the appellant about Brigadier Erasmus would
have been explored with the witness at some length, in detail,
and with the same
tenacity displayed by the appellant's attorney in his cross-examination of the
police witnesses who testified for
the prosecution. But in fact - as the
appellant's counsel in argument properly conceded - the cross-examination of
Ackermann is remarkable
for its tentative and perfunctory nature in regard to
this important element in the defence version.
Having regard to the sustained and protracted dealings which the appellant
admittedly undertook with the police trap, the regional
magistrate disbelieved
the appellant's story that his conduct was actuated by a desire to assist the
police in the detection of illicit
diamond deals and in the hope of some
financial benefit in the form of a police reward. In my opinion the appellant's
explanation
is unworthy of credence. A perusal of the
appellant's
40.
appellant's evidence shows, I think, that he is an intelligent individual. In
cross-examination the appellant was con= strained to
admit that without giving
the police prior notice of his alleged intention so to do, his attempt to usurp
the functions of the Diamond
and Gold Branch exposed him to grave risk. The
danger with which his alleged plan was fraught was not limited to the
possibility
that in the course of such dealings he might have been discovered by
the police in a compromising situation resulting in his criminal
prosecution.
The appellant's alleged plan also involved the hazard of considerable financial
prejudice to himself. Objectively viewed
the appellant's conduct points in my
view rather to an intention on his part to reap illicit gain directly from the
purchase of uncut
diamonds than to a hope of indirect financial advantage in the
shape of a police reward. At the picnic spot the appellant paid Zulu
a deposit
of some R28 000. It is true that on either the State or the defence version
the
appellant .......
41.
appellant was prepared to take leave of Zulu and the money with no certainty
that upon his return to the picnic spot either Zulu or
the money would still be
there. But on the defence version the risk of financial loss to the appellant
was appreciably larger than
on the State version. Should Zulu disappear with the
money before the appellant's return to the picnic spot then, on the State
version,
the appellant would have the benefit of the uncut diamonds in his
undisturbed possession. On the defence version, however, the uncut
diamonds
would be surrendered by the appellant to the police, and against an abortive
capital outlay of some R28 000 (for which the
appellant had raised a loan) the
appellant would have been left with the meagre consolation of the hope of a
police reward (to half
of which Jones would presumably have been entitled)
representing but one-third of the value of the diamonds.
There are other unsatisfactory features in
defence .........
42.
defence case. Although there is before this Court only the appeal of the
appellant, it is clear, on either the State or the defence
version of the facts,
that from the middle of March 1982 the two accused were acting in concert. In
weighing the strength of the
prosecution's case against the appellant it is both
necessary and proper to test the probabilities by reference not only to the
reaction
of the appellant to the intervention by the police at the picnic spot,
but to consider also the response thereto of Jones. If the
two accused were in
truth engaged in trapping Jacobs and his associates then there was no reason for
the arrival of Captain du Preez
to have thrown Jones into a state of complete
confusion. That Jones was nonplussed by the police intervention; that he needed
time
for reflection; and that he found it necessary to put a precautionary
question to the appellant before committing himself to a statement
all tend to
show, in my opinion, that the story told by the two accused to the police was
part of a dishonest
stratagem
43.
stratagem discussed between the two accused previously, but somewhat
imperfectly, which was to be employed in the possible eventuality
of detection
by the police.
In a careful argument to this Court
Mr Ludorf
has said everything that
might fairly be urged in support of the appellant's appeal. Having given due
consideration to counsel's
submissions I remain unpersuaded that the trial Court
was wrong in concluding, not only that the appellant's story was improbable,
but
further that on all the evidence any reasonable possibility that the appellant's
version might be true could be safely excluded.
The appeal is dismissed.
G G HOEXTER, JA .
TRENGOVE, JA )
CILLIé, JA ) Concur