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[1992] ZASCA 48
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S v Sellem (6/91) [1992] ZASCA 48; 1992 (2) SA 795 (AD); (30 March 1992)
6/91 /mb
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION
)
In the matter between:
THE STATE
APPELLANT
and
S SELLEM
RESPONDENT
CORAM
CORBETT CJ, SMALBERGER, KUMLEBEN, F H GROSSKOPF JJA et VAN COLLER
AJA
HEARD
: 12 MARCH 1992
DELIVERED
: 30 MARCH 1992
JUDGMENT
KUMLEBEN JA
/...
1 . The respondent stood trial in the regional court at Cape Town charged
with the illicit purchase of 8 unpolished diamonds in contravention
of s 20 of
the Diamonds Act, No 56 of 1986 (the "Act"). The alternative charge alleged that
he had unlawfully possessed the diamonds
thus contravening s 18 of the Act. He
pleaded not guilty on both counts. A conviction followed on the main one. He was
sentenced
to 15 months' imprisonment of which 9 were to run concurrently with a
previously imposed suspended sentence, should it become operative.
His appeal to
the Cape Provincial Division of the Supreme Court was allowed: his conviction
and sentence were set aside without the
substitution of a conviction on the
alternative count. The judgment on appeal is reported: 1990(1) SACR 30. In terms
of
s 311(1)
of the
Criminal Procedure Act, No 51 of 1977
, the court a
quo
granted the appellant leave to appeal on the following two
2/...
2. questions of law:
first
, whether the respondent purchased
the diamonds, having regard to the definition of "purchase" in s 1 of the Act;
and
second
, whether he possessed them unlawfully.
Warrant Officer
Swartbooi, a member of the then S W A police stationed at Windhoek, was the key
witness for the State. The trial court
found him to be both truthful and
reliable. The conflicting testimony of the respondent was rejected. The accepted
evidence on the
questions to be considered was to the following effect. (The
extracts to be quoted from the record are taken from the evidence of
Swartbooi.)
The respondent and Swartbooi first made contact with each other
when Swartbooi got in touch with him in December 1987. Details of
that occasion
are not stated in evidence. On 29 January 1988 the respondent received a
telephone call from Swartbooi. He asked therespondent
whether he was interested
in an illicit diamond transaction. Swartbooi was operating as an
agent
provocateur
. He arranged to meet the
3/...
3. respondent the following day at a flat in the Gardens Centre in
Cape Town. The respondent kept the appointment and Swartbooi, incognito,
received him and showed him 6 unpolished diamonds. Swartbooi quoted a price of
R15 000 for them. The respondent asked whether he
could take them away with him,
sell them and return with the money: "dat hy graag die diamante wil saamvat en
gaan verkoop en dan
die geld vir my bring." This proposal fell through because
the respondent was unable to leave the required deposit of R3 000. They
parted
company but not before they had arranged to meet again. Later that afternoon the
respondent returned accompanied by another
man. He introduced him as a
prospective buyer: "sy koper". This person examined the diamonds. As they had
brought no money with them,
the respondent suggested that Swartbooi should go
with them to some place where they could proceed with the transaction. He did
not
agree to this and so they left.
4/...
4.
On 8 June 1988 Swartbooi agaih telephoned the respondent to say that he
was in Cape Town at the flat and was still available to do
"business". The
respondent agreed to meet him there that afternoon. On his arrival Swartbooi
introduced him to another person present.
He was in fact Sergeant Barnabas, also
a member of the then S W A police. Each policeman had a parcel of diamonds, 8 in
all. They
were shown to the respondent and he was told that they wished to sell
them in one lot for R24 000. The respondent complained that
the price was too
high if he was to profit from the transaction: "dat hy ook h wins uit die
besigheid wil maak en ... dat die prys
baie hoog is." A reduced price of R22 000
was suggested and this the respondent found acceptable. He again asked to take
the diamonds
away with him, implicitly to show them to the buyer he had in mind.
When this request was refused, the respondent left but it was
arranged that he
would be
5/...
5. telephoned that evening. This call was made and they agreed to
meet the next day at the flat.
When the respondent arrived the following
morning Barnabas was present. Some general conversation ensued before the
respondent was
handed the diamonds. Swartbooi asked whether he was satisfied
with the proposed price of R22 000. He replied that it was still too
high. It
was further reduced, this time to R20 000. The respondent undertook to return
with this sum after the diamonds had been
sold: "Ons het die prys verlaag na R20
000,00 en beskuldigde het saamgestem dat hy wel die R20 000,00 nadat hy die
diamante gaan
verkoop het, vir ons die R20 000,00 sal terugbring." As the three
of them left the flat the respondent objected to Barnabas accompanying
them. He
remained behind and the respondent and Swartbooi proceeded to a lower level of
the building. At this point Swartbooi sprang
the trap by giving a
6/...
6.
prearranged signal to a colleague, Constable Williams, who thereupon appeared
on the scene. The respondent reacted by taking the diamonds
from his pocket and
throwing them away. They were retrieved and he was arrested.
Other evidence
confirms the arrangement as regards the disposal of the diamonds. The respondent
at no stage had any money on him or
indicated that he was in a position to buy
the diamonds. Swartbooi under cross-examination said that from their
conversation he gathered
that the respondent had a buyer in mind: "dat hy wel 'n
koper het wat die diamante kan koop." Barnabas confirms this. He said: "Hy
het
toe gesê hy sal na die koper toe gaan."
On this evidence the regional magistrate concluded, incorrectly, that a sale
between the police traps and the respondent had taken
place inasmuch as the
merx
and
pretium
had been decided upon. In doing so he overlooked
the fact that, although the
7/...
7. price was settled, this was not with a view to
the
respondent
buying the diamonds. He was to be an agent. More precisely
stated, the agreement reached between the police traps and the respondent
was:
either one of mandate, sometimes referred to as indirect agency, in that he
undertook to sell the diamonds on his own behalf
and account to the policemen
for the proceeds of the sale up to the agreed amount; or one of agency in the
true sense, in that he
was to sell the diamonds on their. behalf (no doubt as
undisclosed principals) for at least R20 000. Whichever way their agreement
is
construed, his remuneration was to have been the difference between R20 000 and
the purchase price for which he sold the diamonds.
In the light of these facts, the first question to be decided is whether the
court a
quo
was correct in concluding that the respondent ought not
to
8/...
8.
have been convicted on the main charge, that is, of a contravention of s 20
of the Act. It reads as follows:
"No person shall purchase any unpolished diamond unless -
(a) he is a licensee; or
(b) he is the holder of a permit referred to in section
40(1)(b)."
Section 1 of the Act includes the
following definition:
"'purchase', in relation to an unpolished diamond, means to purchase the
unpolished diamond, to deal in it or to obtain it by way
of barter, pledge or in
any like manner;"
In deciding that there was no contravention of
s 20, Rose-Innes J, with Van Schalkwyk AJ concurring, said in an ex
tempore
judgment:
"There is no definition of the term 'to deal in' in the Act and it must bear its
ordinary meaning. There is much authority in our
law canvassing the ordinary
meaning of the words 'to deal in' and perhaps I may, for sake of brevity,
suggest that the words mean
to negotiate and complete a commercial transaction
as a course of business in which the person charged with the dealing is
frequently
involved. There are many cases in the
9/...
9.
context of this Act and other Acts which show that fortuitous isolated
transactions do not constitute a dealing in the ordinary meaning
of the word.
Section 19 of the Act which creates the crime of dealing in unpolished diamonds
is to the same effect. It is directed
at persons who without the necessary
permits or licences act in the way in which a legitimate dealer in diamonds
acts, that is to
say runs a business in diamonds without the necessary authority
to do so. There is no suggestion here on the evidence that appellant
was dealing
in diamonds or that the transaction that he discussed with the police
constituted a dealing in diamonds. In any event
he was not charged with dealing
in diamonds, he was charged with purchasing them." (35 b - d)
The
expression "deal in" may, on the one hand, connote - as the word "dealer" does -
a course of business conduct or a trading operation;
or, on the other hand, the
phrase may also refer to a single transaction. Dictionary definitions bear this
out. To quote but one:
The Oxford English Dictionary (Second Edition) ascribes
the following meanings
inter alia
to the phrase: "To carry on commercial
transactions; to do business, trade, traffic (
with
a person, in an
10/...
10.
article. ) and "To take part in, have to do
with
, occupy
oneself, do business, act." The intended meaning of the expression in a
particular enactment is therefore to be determined
by the context in which it
appears.
For a number of reasons I consider that this question of law ought
to be decided in favour of the appellant.
An isolated
purchase
of an
unpolished diamond plainly constitutes a contravention of the section. The other
specific contracts included in the definition
-pledge and barter - likewise
refer to a single transaction as opposed to a course of conduct. Thus, by
asspciation the phrase "deal
in" in the definition must likewise be capable of
applying to a solitary transaction. The
cognoscitur
a
sociis
aid
to interpretation, though ordinarily invoked to
restrict
the import of a
word or phrase in an enactment, in this
11/...
11.
case serves to determine the intended meaning of the words "deal in".
Moreover, if such meaning is not attributed to the phrase, it
would seem to
follow that it was redundantly included. It is difficult to envisage a course of
dealing in diamonds which would not
inevitably entail a purchase of a diamond or
its procurement "by way of barter, pledge or in any like manner."
In argument
on behalf of the appellant Mr Downer relied upon the decision of this court in
S v Boshoff
1978(2) S.A. 457(A). The reported judgment omits details of
the arrangement between the police trap and the appellant. However, a
perusal of
the original judgment reveals that the facts of that case closely resemble those
with which we are concerned. A price
was agreed upon between the trap and the
appellant; the latter left to sell the diamonds; he returned with the purchase
price; and
received a
12/...
12.
commission. Unlike the present case, the evidence did not uneguivocally point
to the appellant being a 'go-between' and not a purchaser.
The court a
quo
held him to be a purchaser, but in any event concluded that as an
agent he was nevertheless guilty of a contravention of s 84(1)(a)
of the
Precious Stones Act, No 73 of 1964, this being the section then in force
prohibiting illicit diamond dealing. Its proscription
was that "no person shall
buy, deal in or receive by way of barter, pledge or otherwise, either as
principal or agent, any rough
or uncut diamonds". Though somewhat differently
phrased, s 20 read with the definition of "purchase" is thus substantially the
same
as its predecessor, s 84(1)(a). On appeal this court was not satisfied that
the trial court was wrong in concluding that a sale between
the trap and the
appellant had been proved
13/...
13.
but, like the trial court, found that in any event the
appellant had
contravened the section by dealing in
diamonds. In the judgment (per Rabie JA at 461 A - C)
it was said
that:
"'Buy', 'deal in' and 'receive by way of barter, pledge or otherwise' is
klaarblyklik aparte verbode handelinge en 'receive' kwalifiseer
in geen opsig
die woorde 'deal in' wat hom in die paragraaf voorafgaan nie. Die uitdrukking
'sake doen' word nie in die Wet omskrywe
nie, maar dit is, in sy gewone
betekenis, 'n wye begrip, en die bewoording van art 84(1)(a) toon dat die
Wetgewer bedoel het dat
dit 'n transaksie sou kon insluit wat nie as 'n
koopkontrak beskou kan word nie. (Vgl
R v Gibbons
1956(4) SA 494 (SR)).
Indien 'n mens in die onderhawige geval sou aanneem dat die getuienis nie bewys
dat appellant die diamante
gekoop het nie, dan blyk dit nietemin duidelik dat
appellant met Brink 'n ooreenkoms aangegaan het waarvolgens hy (i) die diamante
in ontvangs geneem het met die doel om dit te gaan verkoop ('n handeling wat
waarskynlik op sigself 'n oortreding
van art 84(1 ) (a) is: kyk '...andersins
ontvang'); (ii) R7 000 aan Brink sou betaal, en (iii) alles wat hy meer as R7
000 vir die diamante kry, vir homself sou kon behou.
Hiermee het appellant m.i.
ongetwyfeld sake gedoen in verband met die diamante, soos bedoel in art
84(1)(a), en
14/...
14.
ek vind dit nie nodig om die aangeleentheid verder te bespreek
nie."
Although it would appear that the question whether the
expression is to be restricted to a course of business was not pertinently
raised during argument in that appeal, the quoted passage certainly confirms the
interpretation for which the appellant contends.
(Apparently in the present case
during argument in the court a
quo
its attention was not drawn to this
decision.)
Mr Fagan, in advancing his argument to the contrary cm behalf of
the respondent, referred to the decision in
Corona v Minister of Home
Affairs
1982(2) S.A. 533 (ZHC). In that case the applicant had been
prevented from applying for bail. The provision relied upon f or this
step was s
106(2) of the Criminal
15/...
15. Procedure and Evidence Act Chap 59 (Zimbabwe). The relevant
portions of this enactment are thus set out at 534H - 535A of the
judgment:
"'(2) The Minister ... may, in an application for bail in terms of ss (1) -
(a) ;
(b) in respect of any -
(i) offence under any law relating to the illicit possession of or dealing in or
the unlawful importation or exportation of any precious
metal, precious stones,
currency, bills of exchange, travellers' cheques, letters of credit, bank drafts
or promissory notes;
certify that the administration of justice would be prejudiced if the applicant
were admitted to bail.
(2a)
(2b) Where a certificate is issued in terms of
ss
(2), the application for bail shall be
refused.'"
Having stressed the need for the
expression "dealing in" to be construed in its contextual setting, the court at
540 G - H said:
"I am aware that the cases to which I have
16/...
16.
referred deal with the meaning of such expressions as 'dealing in' in statutes
which may be different in form and substance from
s 106 (2) (b) (i) of Chap 59.
I am also aware of the dangers of making comparisons in such circumstances. In
my view, however, when
regard is had to the object of s 106 (2) (b) (i) of Chap
59, there is no discernible reason why the ordinary meaning of that expression
should not be followed. In the ordinary way, 'dealing in' a commodity in my view
means to traffic in or trade in that commodity."
The wording,
subject-matter and harsh potential of that enactment make it cleárly
distinguishable, as counsel readily conceded,
from s 20. There is therefore no
need to express an opinion on the correctness of that decision. We were,
however, referred to the
court's view of the "ordinary meaning" of the
expression. In support of this interpretation the court relied to a large extent
on
what was said by De Beer J in
Rex v Oberholzer & Others
1941 O P D
48.
This decision is in more than one respect closer to home. The appellants
were convicted in the magistrate's court of having
17/...
17. dealt in rough and uncut diamonds in contravention of s 1 of
the 119th Chapter of the "Vrystaatse Wetboek." It reads as follows:
"Het zal niet wettig zijn voor eenig persoon ... in zijn of haar bezit te
hebben, of te koopen, te handelen in, in te voeren of uit
te voeren, of te
ontvangen bij wijze van ruil, pand of anderszins, ... of te verkoopen, aan te
bieden, of ter verkoop, ruil of pand
ten toon te stellen, of — te
beschikken over of te leveren eenige ruwe of ongeslepene
diamanten,"
There was no question of trading or a course of
dealing. The conviction in the magistrate's court was based on a single
encounter
between the appellants and a trap and on the facts it was open to
serious doubt whether such could be described as dealing in diamonds.
The matter
was taken on appeal. De Beer J based his decision on the conclusion that
"handelen in" was restricted to a business of
trading in diamonds. This appears
from page 60 of the judgment:
18/...
18.
"It is with considerable hesitation that I have come to the conclusion that
'deal in' here bears the meaning trade in and not the
wider meaning being
interested in. I must frankly concede that my decision may have been influenced
by the Dutch version, for here
I find no difficulty at all in deciding that 'te
handelen in' bears the narrower meaning of 'to trade in' and can in the context
bear that meaning alone."
The other two members of the court
decided that, whichever meaning is given to the expression, the appellants had
not dealt in diamonds.
They, however, made it clear that they did not subscribe
to the interpretation placed upon the phrase by De Beer J. Thus Fischer
J.P. at
page 51 concluded:
"Ek meen dat daar dus wel 'n 'handelen in' kan wees met betrekking tot een
transaksie in verband met diamante omdat die persoon hom
besig hou met die koop
en verkoop van diamante."
And Van den Heever J at page 55
remarked that:
"Denkbaar kan ook 'n enkele transaksie van die aard wat 'n handelaar verrig as
'handelen in' beskryf
19/...
19. word."
For reasons already given, the view taken by Fischer
J.P. is in my opinion the correct one and what the learned judge said in
reference
to the prohibition in the Vrystaatse Wetboek can as aptly be applied
to its present counterpart.
The same expression - "deals in" - features in s
2(a) and (c) of the Abuse of Dependence-producing Substances and Rehabilitation
Centres
Act, No 41 of 1971. These sub-sections lay down that any person who
deals in any prohibited or dangerous dependence producing drug
shall be guilty
of an offence. It is perhaps worthy of mention that in the numerous cases in
which this phrase was considered it
has never been suggested that a single
transaction could not give
rise to a contravention. (See, for instance, S v
Solomon
1986 (3) S.A. 705(A)
and the decisions cited by
20/...
20. counsel in the heads of argument, listed on pages 706 and
707.)
Reverting to the reasoning in the court a
quo
as set out in the
passage quoted from the judgment, two further comments are necessary.
First
, I fail to see how s 19 of the Act assists one in this enquiry. It
lays down that no person may sell
any
unpolished diamond. It is not - as
is said in the quoted passage from the judgment of the court a
quo
-
"directed at persons who without the necessary permits or licences act in the
way in which a legitimate dealer in diamonds acts,
that is to say runs a
business in diamonds without the necessary authority to do so." A dealer,
defined in s 1 as the holder of the
requisite diamond dealer's licence, is in
terms of s 19 one of the persons exempt from this prohibition. But this fact in
no way
relates to the use of the expression "deal in" included in the extended
definition of purchase with
21/...
21. reference to s 20.
Second
, it is not clear from the
reasoning of the court a
quo
whether the observation that "[i]n any event
he was not charged with dealing in diamonds, he was charged with purchasing
them" was
intended as an independent ground for upholding the appeal. If this
was the reason for its inclusion, it must be said that the contention
is unsound
and was not relied upon by Mr Fagan. The charge alleged that the respondent in
purchasing the diamonds had contravened
s 20
read with s 1
.
In the
cirucmstances, as I have indicated, one must hold that s 20 was contravened and
answer the first point of law in favour of
the appellant.
In the light of
this conclusion it is unnecessary to decide the second question of law, namely,
whether the respondent was in unlawful
possession of the diamonds. It is
moreover inappropriate to do so since in the result it is not a
22/...
22.
question of law "on the correct decision of which the conviction or
acquittal of the accused depends":
Rex v Burwood
1941 AD 217
at p 226.
(See too
Attorney-General (Transvaal) v Raphaely
1958(1) SA 309(A).)
However, lest the absence of comment in this judgment on the conclusion of the
court a
quo
be construed as implied approval, I must say, with due
respect, that I doubt the correctness of its decision and find the reasoning
on
which it is based questionable.
In the course of the judgment dealing with this second question, the learned
judge had this to say:
"The whole transaction, as in the case of most trapping cases, was a pure
fiction and a simulated transaction from beginning to end.
The last thing that
the police wished to do was for the diamonds to be sold to anybody. The diamonds
had to be returned to the State
coffers from where they came. There was no
intention of selling to anybody whatsoever; this is stating the obvious. When
one is dealing
with trapping cases one is dealing with an artificial simulated
situation which is a pretence from beginning to end and had no factual
verity in
it whatsoever. There is no
23/....
23. legal transaction at all." (36i - 37a)
What is stated inthis
passage, taken at face value, means that any purchase from an
agent
provocateur
and, a
fortiori
any other act or transaction prohibited
by s 20 in which such a person is involved, does not constitute an offence. It
follows that
this contention, if sound, would answer the first question of law
in favour of the respondent. It is for this reason that I address
it briefly.
The proposition that, for instance, when a trap is involved in selling a diamond
no sale takes place, and that hence
no offence results, is to my mind both novel
and bad in law. The fact that the trap does not plan to implement the terms of
the sale
fully or at all (and certainly wishes to retrieve the diamonds, if
delivered) cannot set at naught the sale itself:
voluntas in animo nihil
operatur
. This reasoning applies equally to the
24/...
24.
agreement of mandate or agency with which the present case is
concerned.
It remains to consider the question of sentence. Counsel were
agreed that, if the sentence of the magistrate is not to be confirmed
and
reinstated, it is for this court to substitute an appropriate one.
At the
trial one previous conviction was proved. On 23 October 1987 the respondent was
convicted of a contravention of s 20 of the
Act. For this earlier offence he was
sentenced to pay a fine of R5 000 or serve 18 months' imprisonment; and a
further wholly suspended
sentence of 18 months' imprisonment was imposed. From
his evidence in mitigation it appeared that he was allowed to pay the fine
in
instalments; that at the time the second offence was committed he was
financially hard pressed and in arrear with the payment
of his instalments; and
that there was a balance of R500 still to be paid by him.
25/...
25. The regional magistrate, in the course of his consideration of
the factors bearing upon sentence, said the following about the
use of a police
trap:
"You were not subjected to sudden temptation. The negotiations that led to the
eventual transaction were rather protracted. A distinction
between this case and
PETKAR
1988 (3) SA 571
(A) can be drawn. In this instance the police had
no real need, as was the case in Petkar's, to verbally
influence and/or persuade you. Although you were contacted by them, at all times
you were a willing party
well knowing that if it succeeds then you would
benefit from it." (I emphasise.)
The decision cited in the above
passage,
Petkar's
case, quoted with approval the following passage from
the judgment of the present Chief Justice in
S v Van Pittius and Another
1973(3) S.A. 814(C) 819A - C:
"The artificial propagation of crime by means of police traps has 'many
distasteful features' (see
R. v. Clever
,
1967 (4) S.A. 256
(R, A.D.) and
the authorities cited therein) and
its iustification 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
26/...
26.
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 f or 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 p.258)." (I again emphasise.)
Referring firstly to
the second italisized remark in the quoted passage, the fact that an offender
was induced to commit the crime,
and, if so, the extent of any such persuasion,
is obviously significant when it comes to sentencing him.
The evidence before
us in this regard is anything but explicit. According to Swartbooi, he did
approach the respondent on three occasions,
and a number of telephone calls were
necessary to arrange for them to meet. But this evidence is neutral on the
guestion of inducement.
One cannot infer, as the court a
quo
did,
27/...
27. at 31h that Swartbooi "systematically sought repeatedly to
entice appellant to repeat the offence of which he had recently been
convicted."
The respondent, when giving evidence in mitigation, said that Swartbooi had
telephoned him at his home and invited him
to become involved in an illicit
diamond deal. He did not immediately agree. His evidence-in-chief continues:
"Did they then approach you again? Yes.
And that evidence we lead - it was agreed upon by the police that they
approached you and in the initial stage you refused to deal
with them and
then they approached you at a later stage again.
That's
right.
Now you at no stage approached them out of your
own accord? No.
Now did you have any money yourself to purchase
diamonds? No sir.
I think it was agreed by the police as well as
under cross-examination that
you yourself would
not buy the diamonds. No.
You were merely acting as a middleman. --- Yes on his insistence that I should
find a buyer for him.
28/...
28.
On his insistence? Yes."
This assertion - that he was reluctant
to participate was probed to a very limited extent by cross-examination. The
respondent was
simply asked why he did not discourage the approach to which he
replied:
"When he phoned me, when he called me on the previous night, Wednesday night, I
refused to sort of - I said I haven't got a buyer.
Due to his insistence that I
should look around or find somebody who will buy, that s how I sort of went to
go and help him, taking
whatever he would give me then I would be able to pay
the last fine of which R500,00 I was supposed to pay."
Swartbooi
was not recalled to give evidence at this stage after judgment with a view to
refuting these admittedly rather vague allegations
of the respondent. There are,
one knows, degrees of persuasion, ranging from a repeated reguest to persistent
pressure. On this evidence
one cannot assess the degree of "insistence". This
statement, since it was not
29/...
29.
amplified by the defence, ought to have been further investigated by
cross-examination on the part of the prosecutor or by further
enquiry conducted
by the court. On the evidence as it stands, one is bound to conclude, in favour
of the respondent - though not
with any degree of assurance - that an element of
inducement was present.
It follows that the regional magistrate, in
concluding that the respondent was a willing participant, misdirected himself.
In the
circumstances it is for this court to decide upon an appropriate
sentence.
As pointed out, the respondent was approached and propositioned at
a time when he was paying off the fine imposed and his suspended
sentence was
still in operation. The evidence does not disclose whether Swartbooi, or those
who instructed him to set the trap, were
aware of this previous conviction. Be
that as it
30/...
30.
may, the appropriateness of doing so in such circumstances has given
rise to judicial comment. In
R v Clever. R v Iso.
1967(4) S.A. 256 (RAD)
Quenet JP at 257 H 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 it. In any case, such persons might not have offended again but . for the
fact that a trap was used."
The respondent's previous conviction
for illicit
diamond dealing shows that he was vulnerable in this
regard.
The purpose of a suspended sentence was to
keep him, if possible, from
serving a prison sentence
by restraining him from repeating the
offence.
Entrapment was calculated to defeat this objective.
As appears from the passage in
S v Van
Pittius and Another
(
supra
) already quoted, an
important consideration justifying the use of a trap is
the conviction, belief or at least suspicion that the
31/...
31 . intended victim was or had been engaged in such criminal
conduct. (See too
S v Kramer and Others
1991 (1) SACR 25
(Nm) 30c.)
In
this case the respondent was first approached by Swartbooi with a view to
trapping him apparently within two months, and certainly
within three and a half
months, of his conviction. He was at the time paying off his fine, and this must
have served as a constant
reminder to him of the danger and consequences of
repeating this offence. In the circumstances it is possible, but highly
improbable,
that when first propositioned by the trap he had resumed his
criminal practices and that this had aroused the suspicion of the authorities.
Thus, had suspicion prompted the decision to set a trap, evidence to that effect
ought to have been placed before the court at the
time when the question of
sentence was being considered. (Cf.
R v Motehen
1949(2) SA 547 (A)
550.)
32/...
32.
In deciding on the sentence he imposed, the regional magistrate took
all the personal circumstances of the respondent into account
and paid due
regard to the other determinants governing sentence. However, as I trust appears
from what has been said, there are
three important considerations peculiar to
this case which ought to have been taken into account: The fact that to some
extent the
respondent must be taken to have been an unwilling participant; that
he was propositioned at a time when he was still in a sense
serving his sentence
for the earlier conviction; and that there was no evidence to indicate that he
was suspected of having resumed
this sort of criminal conduct at the time he was
f irst approached by the police trap. These features in my view justify a
substantially
lighter sentence, despite the fact that the respondent has twice
committed this offence. They ought also to be given careful consideration
before
any
33/...
33.
decision is taken to apply to court in terms of
s 297(9)
of the
Criminal
Procedure Act, No 51 of 1977
, to put the suspended sentence for the first
offence into operation.
The appeal succeeds. The conviction of the respondent
in the regional court of a contravention of s 20 of the Diamonds Act, No 56
of
1986, is confirmed and reinstated. The following lighter sentence is substituted
for the one originally imposed by the regional
court:
"15 months' imprisonment of which 9 are suspended for five years on condition
that the accused is not convicted of a contravention
of s 19 or s 20 of the
Diamonds Act, No 56 of 1986, committed during the period of
suspension."
M E KUMLEBEN
JUDGE OF APPEAL
CORBETT CJ)
SMALBERGER JA)
F H GROSSKOPF JA) Concur
VAN COLLER AJA)