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[2020] ZASCA 137
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Tiry and Others v S (52/2018; 149/2018) [2020] ZASCA 137; [2021] 1 All SA 80 (SCA); 2021 (1) SACR 349 (SCA) (29 October 2020)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 52/2018 and
149/2018
In the matter
between:
NAZIER AHMED
TIRY FIRST
APPELLANT
PATRICIA DUDU
NONO SANGWENI SECOND
APPELLANT
SIPHO ABRAM
TSHABALALA THIRD
APPELLANT
SANDILE ANTHONY
NYAMUSA FOURTH
APPELLANT
MSOLENI
GOODENOUGH MTHETHWA FIFTH
APPELANT
QHEKEKA ALFRED
BUTHELEZI SIXTH
APPELLANT
VELI MAXWELL
SITHOLE SEVENTH
APPELLANT
SOLOMON
NKOSI EIGHTH
APPELLANT
JOSEPH
MOISI NINTH
APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Tiry
and Others v The State
(52/2018
and 149/2018) [2020] ZASCA 137 (29 October 2020)
Coram:
WALLIS,
MAKGOKA and PLASKET JJA
Heard
:
The
matter was disposed of without an oral hearing in terms of s 19
(a)
of the
Superior Courts Act 10 of 2013
.
Delivered:
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and by publication on
the
Supreme Court of Appeal website and release to SAFLII. The time and
date for hand down is deemed to be 10h00 on the 29
th
day of October 2020.
Summary:
Prevention
of Organised Crime Act 121 of 1998 (POCA) – sections (1)
(e)
and 2(1)
(f)
thereof – meaning of the phrase ‘conducts or participates
in the conduct, directly or indirectly, of such enterprise’s
affairs’ – conviction under both s 2(1)
(e)
and
s 2(1)
(f)
–
whether
amounts to duplication of convictions.
ORDER
On
appeal from:
Free
State Division of the High Court, Bloemfontein (Moloi J sitting as
court of first instance).
1 The following appeals succeed and the convictions and
sentences are set aside:
(a) Appellants 1 and 2, Mr Tiry and Ms Sangweni, in
respect of counts 4, 8,19, 20, 22, 23, 25, 30, 34, 35, 42, 43 and 45
in their
entirety, and in respect of count 33 to the extent that the
conviction of theft is altered to one of attempted theft;
(b) Appellant 3, Mr Tshabalala, in respect of counts 2,
34 and 35;
(c) Appellant 4, Mr Nyamusa, in respect of count 2;
(d) Appellant 6, Mr Buthelezi, in respect of counts 2,
19 and 45;
(e) Appellant 7, Mr Sithole, in respect of counts 22 and
35;
(f) Appellant 9, Mr Moisi, in respect of count 2.
2 All the other appeals against conviction are dismissed
and the order of the high court is amended to reflect that Mr Nkosi,
appellant
8, was convicted on counts 14, 31 and 32.
3 Mr Tiry’s appeal against
sentence succeeds to the extent reflected below:
(a) The sentence of 30 years’
imprisonment imposed on count 1 is set aside and substituted with a
sentence of 20 years imprisonment;
(b) The sentence of 20 years
imprisonment imposed on count 2 is set aside and replaced by a
sentence of 15 years imprisonment to
run concurrently with the
sentence on count 1;
(c) The sentence of 15 years
imprisonment on count 33 is set aside and replaced by a sentence of 3
years imprisonment;
(d) It is ordered that the
sentence of 15 years’ imprisonment imposed in respect of each
of counts 3, 5, 6, 7, 9, 10, 11,
12, 13, 14, 15, 16, 17, 18, 21, 24,
26, 31, 32, 36, 39, 40 and 41, and the 3 years’ imprisonment on
count 33, shall run concurrently
with the sentence of 20 years
imprisonment imposed on count 1. The effective sentence is 20 years’
imprisonment.
4 Ms Sangweni’s appeal
against sentence succeeds to the extent set out below:
(a) The sentence of 18 years
imprisonment imposed on count 2 is set aside and replaced by a
sentence of 12 years imprisonment;
(b) The sentence of 15 years
imprisonment on count 33 is set aside and replaced by a sentence of 3
years imprisonment
(c) It is ordered that the
sentence of 15 years’ imprisonment imposed in respect of each
of counts 1, 3, 5, 6, 7, 9, 10, 11,
12, 13, 14, 15, 16, 17, 18, 21,
24, 26, 31, 32, 36, 39, 40 and 41, and the 3 years’
imprisonment on count 33, shall run concurrently.
The effective
sentence is 12 years imprisonment;
5 The appeals against sentence by
appellants 3, 4, 6, 7, 8 and 9 succeed. Their existing sentences on
each count on which their
convictions were upheld are set aside and
replaced by sentences of 7 years imprisonment on each count, all such
sentences to run
concurrently. The effective sentence in each case is
7 years imprisonment.
6 In terms of s
282 of the Criminal Procedure Act 51 of 1977 (the CPA) the
substituted sentences are antedated to 13 October 2016,
being the
date on which the appellants were sentenced.
JUDGMENT
Wallis
et
Makgoka JJA (Plasket JA concurring):
[1]
The
appellants’ convictions and sentences to lengthy terms of
imprisonment arose from the operation of two tank farms for
the
receipt and storage of stolen petroleum products and the sale of the
stolen product to the retail market and end users. The
tank farms
were established by the first appellant, Mr Tiry, who was the
kingpin of the entire unlawful operation. Arising
out of the
operations of these two tank farms, he and his partner, the second
appellant, Ms Sangweni, were both charged on
count 1 with
managing an enterprise conducted through a pattern of racketeering
activities in terms of s 2(1)
(f)
of the
Prevention of Crime Act 121 of 1998 (POCA). Together with the
remaining appellants they were also charged on count 2 with
conducting or participating in an enterprise conducted through a
pattern of racketeering activities in terms of s 2(1)
(e)
of POCA.
In addition, Mr Tiry and Ms Sangweni were charged with 43 separate
counts of theft of petroleum products arising from
their acquisition
of the petroleum products. The remaining appellants were charged with
theft in respect of those transactions
with which they were involved.
The appellants were convicted on various counts on 7 June 2016 and
sentenced pursuant to those convictions
by Moloi J in the Free State
Division of the High Court, Bloemfontein.
[2]
The
appellants appeal against both their convictions and their sentences.
Moloi J having died after the trial, leave to appeal
was granted
by Rampai J.
The
following are the convictions and sentences that are the subject of
the appeal:
(a) Appellant
1, Mr Tiry, was convicted on count 1 and sentenced to 30 years
imprisonment.
Appellant
2, Ms Sangweni, was acquitted on count 1 but convicted on count 2 and
sentenced to 18 years imprisonment.
(b) Mr Tiry and
appellants 3, 4, 5, 6, 7, 8 and 9 were convicted on count 2. Mr Tiry
was sentenced to 20 years imprisonment
and each of the others to 15
years imprisonment. In the case of Mr Tiry this was to be served
concurrently with his sentence on
count 1.
(c) Appellants 1 and 2 were
convicted of theft on counts 3 to 26 and 30 to 45 and sentenced to 15
years imprisonment on each count
to run concurrently with their
sentences on count 1 and 2 respectively.
(d) Each of appellants 3, 4, 5, 6,
7, 8 and 9 was convicted of various counts of theft and sentenced to
15 years imprisonment on
each count, to run concurrently with their
sentences on count 2.
[3]
The
effect of the sentences imposed was the following: in the case of
Mr Tiry an effective sentence of 30 years imprisonment;
in the
case of Ms Sangweni an effective sentence of 18 years
imprisonment; and in the case of each of the remaining appellants
an
effective sentence of 15 years imprisonment.
[4]
Some
matters need to be clarified at the outset. Another accused, Mr
Elliot Thembisiline Njalula, formerly accused 8, died during
the
trial.
In
the result Messrs Nkosi and Moisi, who are reflected in the record as
accused 9 and 10 respectively, are appellants 8 and 9.
Appellant 5,
Mr Mthethwa, has died since the appeal was lodged. Accordingly, his
appeal falls away. Appellant 8, Mr Nkosi,
is reflected in
the court order as having been convicted on counts 9, 31 and 34 and
sentenced to an effective 15 years imprisonment.
That was a patent
typographical error by the registrar in regard to the relevant
counts, as he was charged with counts 14, 31 and
32 and it is
apparent from the judgment that it was on these counts that he was
convicted. No point was made of this in argument
and the count
numbers can be corrected in this court’s order. Appellant 6,
Mr Buthelezi, allowed his appeal to
lapse, but brought an
application to reinstate it, which was not opposed. His appeal was
accordingly reinstated.
[5]
Due
to the fact that the events giving rise to the various counts
occurred in two different areas of jurisdiction, Free State and
Limpopo, the Director of Public Prosecutions issued a directive in
terms of
s 111
of the
Criminal Procedure Act 51 of 1977
authorising
the trial court to deal with those counts which arose outside its
jurisdiction.
The
factual background
[6]
The
trial was protracted. The evidence was not led in any sequential
manner due to a number of interruptions caused by, among others,
the
ill-health of former accused 8 and, on occasions, the judge; the
unavailability of certain witnesses on certain dates; and
objections
by defence counsel to the leading of certain evidence by the State.
However, the State’s case against the appellants
can be
summarised as follows. The principal complainants, Sasol and Engen,
are producers of petroleum products. They use freight
companies to
transport their products with tankers to various central destinations
around the country, in this case, the Sasol
refinery at Secunda and
the Engen depot in Mokopane. Two counts (25 and 26) involved another
producer BP Southern Africa and the
transport of fuel to its depot in
Pretoria.
[7]
Mr
Tiry and Ms Sangweni were lovers, and initially lived on Zutundu farm
(Zutundu) in Mookgophong (formerly Naboomspruit) in Limpopo
Province,
where an unlawful tank farm was operated supplying petroleum products
throughout the province as far as Musina. When
this enterprise was
discovered and Mr Tiry arrested, he and Ms Sangweni moved to Free
State and a new unlawful tank farm operation
was established on a
farm, Quarry Hoek,
[1]
near Warden. The evidence showed that Mr Tiry was the mastermind of,
and ran, a criminal enterprise through which he stole petroleum
products from Sasol and Engen, using the tank farms at both Zutundu
and Quarry Hoek for this purpose. The farms were strategically
situated in close proximity to the national roads used by the freight
companies to transport Sasol and Engen’s petroleum
products.
Both farms were surrounded by high walls, and a number of bulk
storage tanks and pipes had been erected, which were used
to decant
and store the products. Mr Tiry was said to have had contact
with the tanker drivers (among others, appellants 3,
4, deceased
appellant 5 and appellants 6 and 9), who would divert from their
routes onto the farms and unlawfully decant petroleum
products there.
Mr Tiry would pay them for this and later on-sell the stolen
products to fuel retailers and possibly others
at a reduced price
lower than the regulated price. These activities gave rise to counts
1 and 2 under the provisions of POCA.
[8]
The
charges faced by the appellants were in two categories. Counts 3 to
11 (all predicated on counts 1 and 2) were allegedly committed
at
Zutundu. The stolen petroleum products were loaded from Sasol’s
Secunda plant, and were destined to be delivered at the
Engen depot
in Mokopane, or in one instance at Rustenberg. The basis for the
charges was that drivers of tankers carrying diesel
or petrol
consigned to the Engen depot would divert to Zutundu, discharge all
or part of their cargo in return for payment of an
agreed price and
then Mr Tiry would dispose of the stolen product to various retail
outlets and possibly others. The evidence showed
that the drivers
were aware that if they diverted in this way Mr Tiry would purchase
the product they were carrying. It was not
established how the
drivers came to know this, although a list of drivers’ mobile
phone numbers was found on a phone belonging
to Mr Tiry and one
witness, who testified in terms of
s 204
of the CPA, said that
he received a phone call from Mr Tiry.
[9]
The
thefts in counts 12-26 and 30-41 (also all predicated on counts 1 and
2) were allegedly committed at Quarry Hoek. The stolen
products were
loaded at Island View Storage (IVS) in Durban and were destined for
Sasol’s tank farm in Secunda. As with the
other counts, the
State alleged that the products did not reach their destination, but
were decanted on Quarry Hoek. Appellants
3, 4, 6, 7, 8 and 9 are
implicated in this regard. Appellants 3, 4, 6 and 9 were the drivers
for various freight companies, whilst
appellants 7 and 8 were
employed by Sasol in Secunda as officials entrusted with receiving
products from IVS delivered by appellants
3, 4, 6 and 9. They
allegedly falsified documents to the effect that tankers were shown
as arriving in Secunda and off-loading
petroleum products, whereas,
in fact, the tankers either never entered the tank farm, or arrived
there with a tank containing water.
[10]
The
State led evidence both of a factual and technical nature. The
appellants did not testify in their own defence, but led the
evidence
of three technical witnesses. We do not intend burdening this
judgment with the testimony of each witness. Where necessary,
we will
refer to the specific aspects of a particular witness’
evidence.
Zutundu
counts
[11]
In
respect of the Zutundu counts, the trigger for their discovery was
the events of 3 May 2006. A tanker belonging to Rand Forwarding
and
Freight was instructed by Mr Moolman of MBT Petroleum to collect a
consignment of 42 000 litres of diesel from Total in
Alrode and
deliver it to Marikana near Rustenburg. The truck did not reach its
destination, and was found abandoned in Naboomspruit
on 4 May 2006.
Its driver, Mr Victor Mabule, disappeared without a trace. This event
led to an investigation, using information
from the vehicle's
satellite tracking equipment, which led the police, Mr Moolman and
Mr van Eeden from Rand Forwarding
and Freight to Zutundu
farm. There, diesel was found in a tank erected on the farm. This
diesel was compared with residual diesel
in the pipes of the tanker
and found to match it in both colour and appearance. On that basis it
was reloaded for delivery, although
there was a shortfall of some
3 000 litres. Mr Tiry was present while this happened. These
facts formed the basis of count
3.
[12]
The
discovery of the tank farm at Zutundu led to a further investigation,
which revealed that between 13 December 2005 and February
2006,
petroleum products loaded from Sasol, Secunda, and destined for the
Engen depot in Mokopane did not reach their destination.
Mr du Preez
testified that, after measuring the supposed deliveries against sales
and the quantities left in the storage tanks
at the depot, over
200 000 litres of premium petrol and nearly 240 000 litres
of diesel was not delivered. The vehicle
satellite tracking reports
for tankers making deliveries to the depot revealed that some tankers
deviated to Zutundu, and in most
instances remained there for long
enough to discharge their cargo. Appellant 4 was the driver in counts
5, 7, 9 and 10. In counts
4, 6, 8, and 11 the drivers all disappeared
without a trace. In count 4 the evidence was that the tanker was only
stationary at
Zutundu for 8 minutes and 50 seconds, while in count 8
no evidence was given of how long the tanker remained at Zutundu.
[13]
Evidence
against Mr Tiry was given by an owner of a fuel retailer and the
employee of another, who operated fourteen service stations
in the
vicinity of Mokopane, Naboomspruit and Polokwane. They testified that
they used to buy petroleum products from Mr Tiry at
below market
value. One described the petrol as ‘hot’
[2]
,
conveying that he knew it was stolen. All testified that Mr Tiry
would insist on cash payment or cash cheque, and issued no receipts
or invoices. It was common cause that Mr Tiry had no licence to deal
in petroleum products. Considerable quantities of petroleum
products
were purchased from Mr Tiry. The evidence of the two witnesses was
corroborated by a businessman and a friend of Mr Tiry's,
Mr Jose dos
Santos, who testified that he knew that he sold petroleum products.
Quarry
Hoek
[14]
The
facts giving rise to the Quarry Hoek counts took place subsequent to
Mr Tiry’s arrest and release on bail, following the
exposure of
his activities at Zutundu. In a deceptive violation of his bail
conditions, in June 2006, Mr Tiry moved to Quarry Hoek
with Ms
Sangweni. There, he purchased the Quarry Hoek property through his
friend and proxy, Mr dos Santos, and immediately set
up a similar
infrastructure to that he had previously utilised at Zutundu. A high
wall was erected around the property; tanks,
pumping equipment and
appropriate pipe lines were installed, some inside a large shed and
some outside; and a large dam was built
on the property to hold the
water that would replace the contents of the tankers once off-loaded.
Two huge steel tanks and 53 JoJo
plastic tanks of different sizes
were also set up on the farm to keep the stolen petroleum products.
[15]
Quarry
Hoek was situated north of Warden and slightly off the N3 national
road that tankers would use when conveying petroleum and
diesel
products from Durban to the Sasol tank farm in Secunda. A large,
prominent sign pointing to the farm was erected on the
road,
ostensibly to guide the drivers. The man who set up this
infrastructure at the instance of Mr Tiry, Mr Willem Basson,
testified
about this. He also testified that Mr Tiry specifically
told him that the intention of the infrastructure was to set up a
fuel
depot and that on behalf of Mr Tiry he solicited sales and made
deliveries of fuel. After these activities were discovered by the
police a considerable quantity of petroleum products was discovered
in the tanks on the farm and shown after testing to belong
to Sasol.
[16]
The
main witness in respect of the Quarry Hoek counts was Mr Fredolines
Peach, a forensic investigator, who had been engaged by
Sasol to
investigate the cause of its losses. Mr Peach testified from a
spreadsheet he co-authored with the investigating officer,
Warrant
Officer Gert van der Merwe. The contents of the spread-sheet included
particulars of vehicle tracking devices installed
on the specific
truck tankers, locations of those tankers at different times, and the
Global Positioning System (GPS) co-ordinates.
More about these later.
[17]
The
following background, distilled from Mr Peach’s evidence, is
necessary to appreciate the nature of the Quarry Hoek counts.
At
the time Sasol was importing petrol, described in the charge sheet as
Ron65 petrol or Reformate petrol (the two are synonymous),
and it was
then transported by fuel tankers from IVS in Durban to its tank farm
in Secunda, where it was further processed. The
quantities imported
were so great – more than 50 tankers a day – that they
followed a different route into the tank
farm in Secunda in
accordance with the procedure described below.
Four
freight entities were used for that purpose, namely Lobtrans SA (Pty)
Ltd (Lobtrans); Freight Dynamics (Pty) Ltd (Freight Dynamics);
Wardens Cartage CC (Wardens) and 777 Logistics (Pty) Ltd (Logistics).
Appellants 3, 4, 6, 8 and 9 were among the drivers of the
tankers for
these companies.
[18]
The
following procedure had to be followed for the loading of the
petroleum products from IVS Durban up to their off-loading in
Secunda. The Oil Unit at Sasol’s headquarters in Rosebank would
generate an order, prefixed with number 53. The various transport
companies operating the tankers would be given the orders, which
entitled those companies to uplift the product referred to in
the
order from IVS. The transport company would issue the driver with a
delivery note with details of the driver and the registration
numbers
of the tanker and the trailer (if any). At IVS the driver would
exhibit the documents in his possession, load and proceed
to the
weighbridge to weigh the load.
[19]
An
independent company, Intertek Testing Services (South Africa) (Pty)
Ltd (Intertek), inspected the vehicles as they arrived at
IVS. After
loading, the tanker would be inspected and sealed. The seals would
have sequential numbers. Each driver would sign the
weighbridge
ticket, and an acknowledgment that they had received the product.
These two documents would have to be handed in upon
arrival at the
Sasol tank farm in Secunda.
The
tanker would then be weighed to check that the weight corresponded
with the weight shown on the IVS documents within a tolerance
of
500kgs.
Once
so satisfied, the process controller at the weighbridge would
generate a ‘non-commercial goods’ receipt and allow
the
tanker to proceed to off-loading. There the product would be tested
for possible contamination and the off-loading official
would
generate an off-loading statement essentially certifying that the
tanker had not been tampered with, was full of product
and ready for
off-loading. After the tanker had off-loaded the product the
off-loading official would make a declaration of the
time when
off-loading was complete and that the tanker had been fully
off-loaded. The tanker would then proceed outbound to the
weighbridge
where it would be weighed again and the ‘non-commercial goods’
receipt would be completed. It would then
be allowed to leave the
tank farm and its departure time would be logged by the security
personnel at the exit gate. Thus, for
theft of the product to occur
under this procedure, the driver of the tanker, the weighbridge
official, the off-loading official
and the buyer of the stolen
product, and possibly the security officer, all had to co-operate.
[20]
In
respect of the specific counts relating to Quarry Hoek, the catalyst
was the events of 14 December 2006, which form the basis
of count 12.
Appellant 3, Mr Tshabalala, was literally caught ‘red-handed’.
On 13 December 2006 he loaded a Freight
Dynamics tanker with
reformate octane at IVS in Durban. When he arrived at the Secunda
tank farm, it was discovered that the tanker
was full of water. He
could not provide any satisfactory explanation as to how this came
about, and was arrested. An examination
of the vehicle's satellite
tracking report later revealed that the tanker, on its way from
Durban, had entered Quarry Hoek at midnight
on 14 December 2006
and left at 05h00. In this regard, Mr Marius Seaman testified that as
a result of this incident,
he used the tanker’s vehicle
tracking reports to trace the movements of the tanker on its journey
from Durban. This showed
that the tanker stopped in Warden and spent
about six hours there. As a result, he and the late Mr Peter Dafel
travelled to Warden,
where the GPS co-ordinates from the replay led
them straight to Quarry Hoek.
[21]
The
police later obtained a search and seizure warrant in respect of
Quarry Hoek, which they visited on 15 December 2006. Mr Tiry
was not
present. Upon arrival, the police found fuel, reformate octane 95.
Samples of it were lifted and sent for forensic analysis,
which
confirmed that this was the same product which Mr Tshabalala had
loaded from IVS in Durban on 13 December 2006, destined
for Secunda.
By this time Mr Tiry and Ms Sangweni had abandoned the Quarry Hoek
farm and fled. They were eventually arrested in
Polokwane on 18
December 2006.
[22]
The
investigation triggered by the event on 14 December 2006 revealed
that between 19 August and 14 December 2006 tankers driven
by
appellant 3 (Mr Tshabalala), appellant 6 (Mr Buthelezi), and
appellant 9 (Mr Moisi) and others loaded product from IVS
in Durban.
En route to Secunda, they deviated to Quarry Hoek, where the product
was stolen. At the Secunda tank farm, all the security
processes
referred to above would be reflected as having been satisfied. This
involved falsification of documents through the cooperation
of the
drivers, weighbridge and off-loading officials referred to above. In
this regard, the weighbridge and off-loading officials
who were
charged were appellants 7 (Mr Sithole) and 8 (Mr Nkosi). In
truth, however, the tanker either did not enter the Sasol
tank farm
or did so empty or filled wholly or partly with water. The satellite
tracking reports revealed that the tankers had diverted
to Quarry
Hoek where they spent some time. Count 25 involved a different fuel
retailer, BP Southern Africa (BP). As a result,
the rest of the
appellants were arrested.
Grounds
of appeal
[23]
The
convictions were assailed on the grounds of violations of fair trial
rights based on the following:
(a) A denial of the opportunity to
cross-examine witnesses and the limitation of an expert witness’
evidence;
(b) Acceptance of hearsay evidence
in the form of the satellite vehicle tracking reports;
(c) The trial judge’s
conduct;
(d) Invalidity of the search and
seizure warrant in respect of Quarry Hoek.
The
first two of these are closely connected and can conveniently be
dealt with together.
The
satellite tracking reports
[24]
An
important component of the State’s case against the appellants
was the vehicle satellite tracking reports, which linked
the drivers
with the diversion of their tankers to Zutundu and Quarry Hoek in all
but two instances, namely counts 25 and 26, where
the vehicles were
observed at Quarry Hoek. The vehicle tracking reports were highly
contested, as the appellants attacked their
reliability and contended
that this evidence should have been excluded as hearsay. The State’s
main witness in respect of
the Quarry Hoek counts, Mr Peach, relied
heavily on the tracking reports.
[25]
That
evidence is summarised below. Experts from various companies whose
tracking devices had been fitted on the tankers involved
in each of
the alleged thefts testified about the workings of the tracking
systems.
[26]
The
Wardens tankers were involved in counts 13, 14, 15, 16, 17, 18, 19,
20, 21, 22, 23 and 24. They were fitted with tracking devices
managed
by Global Telematics. Mr Desmond Naidoo, its fleet manager, testified
about the satellite tracking system, its workings
and reliability.
The GPS unit on the vehicle detects a locational signal
[3]
from at least three satellites circling the earth and transmits this
information to the tracking company via GMS.
[4]
This enables the tracking company to identify the location of the
vehicle at any time to an accuracy of 10 metres. Mr Naidoo
testified that the extracted information in respect of the tankers’
movements related to these twelve counts showed that
these tankers
were indeed at the Quarry Hoek farm on the dates and times indicated
in the reports. On each occasion they spent
a few hours at Quarry
Hoek before departing for Secunda. In four instances the extracted
information showed that from Quarry Hoek
farm, the tankers went to a
truck stop in Secunda and never went to Sasol's tank farm. In one
instance a tanker arrived at the
weighbridge bay, but did not go to
the off-loading bay and returned to the truck stop in Secunda.
[27]
Counts
12, 34, 35, 36, 40 and 41 involved tankers belonging to Freight
Dynamics. Those tankers were fitted with Comtech
[5]
tracking devices. Mr Joao Pedro Pedregal, an expert in satellite
tracing of motor vehicles employed by Altech Nestar, testified
about
how the satellite tracking of vehicles worked. The only difference
between his description and that of Mr Naidoo was that
the Comtech
system required the GPS device on the vehicle to detect locational
signals from four satellites instead of three. All
the information
received from the unit installed on a particular vehicle was sent to
the client through a power track light software
program. This enabled
the client to view the vehicle movements in real time. The software
also allowed the client to view trip
replays so that all position
data on any trip was available. In the event of the vehicle stopping,
the program recorded the duration
of the period before the next
occasion the ignition was switched on.
[28]
Mr
Pedregal testified that it was impossible for the client to
manipulate any information sent by the tracking unit to the hub
server and from the hub server to the client server. Mr Pedregal also
attested to the reliability and accuracy of the system. Based
on the
above considerations, his conclusion was that the tankers in these
counts were at Quarry Farm on the dates and at the times
reflected in
the extracts produced in respect of those tankers.
[29]
Counts
30, 31, 32 and 33 involved tankers belonging to Logistics. The
tankers were fitted with tracking devices by C-Track Digital.
Mr Eugene van Niekerk attested to the accuracy and
reliability of the tracking system. He testified about movement
reports in respect of the tankers involved in the counts referred to
above, during the period 26 November to 6 December 2006. The
extracted information showed that between 29 November and
4 December 2006 the four tankers involved in these counts
entered Quarry Hoek at various times en route from IVS Durban and
spent a few hours there before departing for Sasol Secunda tank
farm.
[30]
In
respect of the Zutundu counts, the investigating officer, Captain
Schutte, obtained two compact discs from the tracking company
for the
vehicles involved in these counts and they were analysed by Constable
Ravat. He had plotted the location of the four corners
of the walled
homestead area on Zutundu using a GPS device and his analysis showed
that all the vehicles in question in relation
to those counts had
diverted to Zutundu from their intended route from Secunda to the
Engen depot at Mokopane.
[31]
None
of these witnesses were cross-examined, nor was their evidence
challenged. As the appellants were represented through Legal
Aid SA
(Legal Aid), they had to obtain approval from Legal Aid to engage the
services of satellite tracking expert. When the State’s
expert
witnesses testified, counsel had not identified a potential expert
witness and that approval had not yet been given. Consequently,
counsel for the appellants elected not to cross-examine those
witnesses on the ground they needed an expert themselves in order
to
cross-examine effectively.
[32]
Eventually
the State closed its case on 26 February 2015. The appellants’
application to recall the State’s witnesses
for
cross-examination was refused. Mr Shone, the appellants’
expert, testified from 26 to 27 March 2015, while the other
expert,
Mr Dormehl, delivered a report and testified on 17 and 18 February
2016. At the end of his evidence, a further application
to recall the
State’s expert witnesses was refused. In the circumstances, it
is not correct that the appellants’ right
to cross-examine the
witnesses was denied. They elected not to do so, and allowed the
State to close its case.
[33]
It
is no answer for the appellants to argue that they were dependent on
Legal Aid for funding. What they needed to do was identify
a suitable
expert and then ask Legal Aid to provide funds to obtain a report
from that expert on the issues in the case. This they
could have done
immediately they received the contents of the docket, from which it
would have been clear that the satellite tracking
reports were to
form the bedrock of the State’s case. They elected not to do
this, and waited until towards the closure of
the State’s case.
And in the light of the evidence of their own expert witnesses, the
trial court was correct in refusing
the applications to recall the
witnesses.
[34]
None
of the appellants testified in their own defence. To counter the
State’s tracking reports evidence, the appellants relied
on the
evidence of Mr Shone and Mr Dormehl. Mr Shone, a tachograph
consultant, did not add any value to determining the issue
of
reliability of the tracking reports, as it was not his field of
expertise. In response to a direct question on this aspect during
cross-examination, he conceded that he was unable to testify on the
reliability of the satellite tracking equipment. Furthermore,
he was
unable to testify as to how the satellite tracking system worked. All
he did was compare some of the documents with a schedule
prepared by
Mr Peach and note some discrepancies. None of these was relied upon
in argument. In light of the above, the court a
quo was correct in
attaching little value to his evidence.
[35]
Mr Dormehl’s
evidence was tendered in support of an application to re-open the
appellants’ cases, both to receive his
evidence and to enable
the witnesses who had given evidence regarding the tracking devices
and reports to be recalled for further
cross-examination. The trial
court refused the application on the basis that the evidence did not
take the matter any further.
The
upshot of Mr Dormehl’s evidence was that the tracking reports
lacked credibility due to the unavailability of supporting
documentation like monitoring software, installation certificates,
etc; no records of regular maintenance of the devices; no proof
of
how data was stored for over a period of four years. As he expressed
it in his report: ‘There is no proof that industry
standards
were complied with at the time of the alleged capturing of the data
now sought to be introduced by the State’.
He testified that
the documents he referred to would only be called for by insurance
companies if there was a dispute over the
accuracy of information
obtained from the device.
[36]
Mr
Dormehl, while admittedly an expert, did not address the fundamental
issue of whether these particular tracker readings accurately
reflected the movement of the vehicles in question. He raised a
number of potential issues, such as the certification of the tracking
devices. He gave evidence in regard to the way in which they could go
wrong. However, none of that evidence indicated that any
of the
devices in issue in this case had in fact gone wrong. Unless and
until it was put to any witness on behalf of the State
that the
information they were deriving from the tracking devices was
incorrect, and that the tankers in question had not diverted
from
their required routes, technical evidence of how such devices could
go wrong was neither here nor there. In the absence of
any proper
challenge to the correctness of that evidence the issue was academic.
[37]
These
substantial difficulties with Mr Dormehl’s evidence are best
illustrated by his assertion that in the absence of certain
documents
there was no evidence that the GPS devices were even installed on the
vehicles mentioned in the different counts. However,
no basis existed
for thinking that the evidence of tracking reports had been
fabricated, which was the necessary corollary to his
view. His
approach depended on the absence of certain documents he regarded as
necessary, but whose relevance he failed to demonstrate.
[38]
Even
if taken at face value,
[6]
we are of the view that objective facts were proved that served as
sufficient safeguards to accept the reliability of the tracking
reports. In this regard we consider the testimony of the two
s 204
witness, Messrs Mofokeng and Mahosane, the truck drivers in respect
of counts 30 and 33, to be useful. As would become clear later,
the
tracking reports located their presence at Quarry Hoek on the dates
and times they testified to have been there. So the reports
were
accurate as far as these two drivers were concerned. Furthermore, Mr
Seaman’s evidence is important. We have already
mentioned how
he was led to Quarry Hoek with precision by the co-ordinates obtained
from the replay of the tanker movement involving
appellant 3 on 14
December 2006.
[39]
Furthermore,
Mr Deon Pienaar, a covert surveillance operator did a surveillance of
Quarry Hoek over two days in August 2006 on behalf
of Sasol. He
observed two Lobtrans tankers entering Quarry Hoek and took
photographs. Similarly, the lead to Zutundu was as a result
of the
satellite tracking reports. And the fact that stolen petroleum
products which had been loaded in those tankers were found
on both
farms, underlines the reliability of the reports.
[40]
Most
importantly, if the version of appellants 3, 4, 6 and 9 had been that
they never diverted to Zutundu or Quarry Hoek, they could
simply have
instructed their counsel to put that to the witnesses during
cross-examination. It would have been put that the tracking
data must
be incorrect because the instructions from the accused were to the
effect that the tankers had not deviated as alleged.
They never did.
Furthermore, those appellants elected not to testify, which is their
constitutional right. But it is not without
consequences. As is
trite, the fact that an accused person is under no obligation to
testify does not mean that there are no consequences
attaching to a
decision to remain silent during the trial. If there is evidence
calling for an answer, and an accused person chooses
to remain silent
in the face of such evidence, a court may well be entitled to
conclude that the evidence is sufficient in the
absence of an
explanation to prove the guilt of the accused. Whether such a
conclusion is justified will depend on the weight of
the evidence.
[7]
Given all the above considerations, we conclude that the reliability
of the satellite tracking reports was established.
[41]
There
remains the contention that the contents of the tracking reports
constitute hearsay evidence. We do not agree. The contents
of the
reports merely reflect the locational data that was transmitted from
the GPS transmitter fitted to each vehicle. That data
identifies the
position of the vehicle from time to time during the journey in
question. It is the product of a measuring device
in the same way
that a thermometer reflects body temperature or a barometer air
pressure. The information it produces is not hearsay.
It is a matter
of fact and admissible as such. That is not to say that it must be
accepted at face value. One can readily imagine
circumstances in
which any measuring device may be defective or provide inaccurate
information, but once it has been shown on a
prima facie basis to be
doing its job properly, the absence of any basis for thinking that
the information it provides is inaccurate
may mean that the
correctness of that information is established beyond reasonable
doubt.
[42]
One
related point raised in the heads of argument, but not developed, was
that the trial judge failed to recognise that the contents
of the
tracking reports constituted ‘data messages in terms of the
definition in s 1 of the Electronic Communications
and
Transactions Act 25 of 2002 (the ECTA). We say that this point was
not developed because we were not told why this made any
difference
to their admissibility. In terms of s 15(1)(
a
)
of the ECTA the rules of evidence must not be used to deny the
admissibility of a data message on the mere grounds that it is
constituted by a data message. In terms of s 15(2) it must be
given due evidential weight and s 15(3) prescribes certain
factors to which regard must be had in considering the message's
evidential weight. We have already considered the relevant factors
and concluded that the tracking reports were reliable. Therefore,
there is nothing in this point. For those reasons the first two
grounds of appeal must fail.
The
trial judge’s conduct
[43]
It
was submitted that the trial judge, in breach of the norms of
permissible judicial conduct, violated the appellants’ fair
trial rights by unjustifiably interrupting the appellants’
counsel throughout the trial, thus hindering their defence. The
incidents relied upon in the heads of argument primarily involved
attempts by counsel to persuade the judge that there should be
a
trial within a trial on undefined issues of admissibility. On other
occasions the complaint was that their endeavours to obtain
an expert
witness were stultified by the judge. We have already dealt with that
and the judge did not in fact prevent them from
leading the expert
evidence they procured. Their difficulties more probably stem from
the absence of any respectable evidence to
contradict that led on
behalf of the State. Be that as it may, the judge was entitled,
especially in view of the protracted nature
of the proceedings, which
had been going on for nearly six years, to be firm.
[44]
However,
there are several incidents on record which show that on a few
occasions the judge was impatient, sarcastic, overbearing,
brash and
downright rude towards counsel. This is especially so in respect of
Mr Nkhahle. Throughout the record, it is evident
that the judge did
not think much of counsel’s abilities or experience.
This
conduct was unfortunate. To his credit,
Mr
Nkhahle showed remarkable resilience. Irrespective of the length of
the trial, the irritations and the inevitable frustrations,
it is
important for a judge to maintain a dignified and detached
disposition. Having said that, we do not think that the conduct
of
the judge was so gross as to render the appellants’ trial
unfair. The appellants were afforded every opportunity to advance
their defence over a protracted period. Witnesses were cross-examined
at length without it being suggested at any stage that their
evidence
was erroneous, deliberately untruthful or inconsistent with a version
to be advanced by any of the accused. Taking the
record as a whole,
the appellants had a fair trial.
The
search and seizure warrant
[45]
The
warrant, in respect of Quarry Hoek, was issued by Colonel Tsatsa on
15 December 2006. It is common cause that the warrant was
issued
irregularly. It was issued to the investigating officer on his mere
say so, without a statement on oath from a person who
might have
reported the matter to him. No specific crime, nor names of possible
suspects, was mentioned in the warrant. What the
trial court had to
determine was whether, notwithstanding the irregularities, the
evidence secured pursuant to the search fell
to be excluded in terms
of s 35(5) of the Constitution. That section provides that 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.
This
is not an absolute exclusionary provision for evidence obtained in
violation of an accused’s constitutional rights.
[46]
The
next enquiry is whether the admission of the evidence would render
the trial unfair or otherwise be detrimental to the administration
of
justice. In
Dos
Santos and Another v The State
[8]
a warrant was defective as
the
regional magistrate who issued it was not a magistrate as defined for
the purposes of s 21 of the CPA. It was concluded under
the
circumstances, that the evidence should not be excluded. Ponnan JA
explained (at paras 23 and 24):
‘
Here the
investigating team did not act in flagrant disregard of the first
appellant's constitutional rights. On the contrary, they
sought
judicial authority for their conduct. That judicial imprimatur was
an attempt to uphold the law in spirit and
letter. None of those
executing the warrant knew that it suffered a defect...
In those circumstances it is plain that the
task team was not attempting to garner any unfair advantage for
themselves. Rather it
plainly was an endeavour to protect the
interests of the first appellant. For that they should be commended,
not penalised by having
the evidence that has been secured pursuant
to that warrant excluded. To exclude the evidence in those
circumstances would not
conduce to a fair trial. Nor for that matter
would it serve to advance the administration of justice. To exclude
the evidence simply
because the wrong magistrate had been
inadvertently approached would run counter to the spirit and purport
of the Constitution.
In our view, on the facts of this case s 35(5)
could hardly countenance the exclusion of the impugned evidence.
Accordingly the
conclusion reached by the trial court on this score
cannot be faulted.’
[47]
In
S
v Van Deventer and Another
[9]
the validity of a warrant issued in terms of s 74D of Income Tax Act
58 of 1962 was attacked on the ground that it was issued in
terms of
the wrong statute. The court allowed the evidence seized pursuant
thereto, after taking into consideration the following
factors: that
the documents seized constituted valuable evidence of the existence
and extent of income tax evasions, and as such,
the documents fell
within the ambit of the warrant; that the evidence was obtained
without any compelled participation by or conscription
of appellants;
that the violation of appellants’ right was technical and not
flagrant; that the officers executing the warrant
acted bona fide;
and that if the evidence would in any event have been discovered by
lawful means, the exclusion thereof would
generally be detrimental to
administration of justice.
[48]
Dos
Santos
and
Deventer
are
illuminating, and the general principles distilled from them apply
with equal force to the present case. It must be borne in
mind that
the search and seizure in this case yielded real and valuable
evidence of a vast network of theft of petroleum products,
as well as
actual products stolen from Sasol. To exclude such evidence would be
detrimental to the administration of justice. The
farm itself had
been abandoned by Mr Tiry and Ms Sangweni, who had decamped and gone
into hiding. Thus, although the trial court
admitted the evidence on
an incorrect basis, the decision was ultimately correct. Despite the
irregularity in issuing the warrant,
the evidence obtained pursuant
to its execution was correctly accepted.
The
individual charges
[49]
Challenges
were raised to the conviction of Ms Sangweni on all charges; to
the convictions on the theft counts of the two Sasol
officials,
Messrs Sithole (Appellant 7) and Nkosi (Appellant 8) and consequently
their conviction on count 2 under POCA; to
the conviction of Mr
Nyamusa (Appellant 4) on counts 5, 7, 9 and 10 in relation to the
Zutundu counts; and the other drivers (Appellants 3,
6 and 9) in
respect of all the theft counts on which they were convicted and
consequently their conviction on count 2 under POCA.
Mr Tiry did
not advance a challenge to his conviction on any specific count as
opposed to the general challenges already disposed
of. In preparing
the appeal, however, it became apparent to the members of the court
that there were certain counts to which no
specific challenge had
been raised where the convictions could not be upheld. We will deal
with these, which may to some extent
overlap with the individual
cases raised in the heads of argument, before dealing with
Ms Sangweni's arguments and some more
general issues regarding
the POCA counts.
Count
4
[50]
This
was one of the Zutundu charges, the general
modus
operandi
of
which has been described. In all of them the basis for the
convictions was the following. Mr Tiry was proved to have been
operating
an unlawful tank farm at Zutundu, by purchasing stolen
petroleum products from tanker drivers and re-selling them at prices
less
than the regulated price. There was evidence that some at least
of the stolen product had been destined for the Engen depot in
Mokopane as demonstrated by the shortfall established to exist in the
latter’s tanks. On counts 4 to 11 there was evidence
that
tankers carrying petroleum from Secunda to the Engen depot diverted
from their prescribed route to Zutundu and remained there
for
significant periods of time. In the absence of any legitimate reason
for them to do so the inference was that all or part of
the contents
of these tankers, was stolen and sold to Mr Tiry. This evidence
raised a prima facie case and in the absence of any
lawful
explanation for the tankers going to Zutundu it was a proper
inference that the drivers and Mr Tiry were parties to the
theft of
all or part of the contents of the tankers. And as already noted no
innocent explanation was forthcoming.
[51]
The
State’s problem in relation to count 4 is that according to
Constable Ravat the tanker in this case was only on the
farm at
Zutundu for 8 minutes and 50 seconds. The evidence of Mr Peach
was that this would not provide anything like sufficient
time for the
entire contents of the tanker, or even a substantial portion thereof,
to be discharged. The driver is not identified
and Mr Tiry’s
silence in respect of this count alone is understandable. The
possibility exists that the tanker went
to Zutundu dishonestly,
perhaps to discuss the possibility of stealing and selling a later
consignment, but without any of its
contents being stolen. According
to Mr du Preez’s schedule, the driver was a regular driver on
this route. In those circumstances,
while the visit to Zutundu was
highly suspicious the evidence was insufficient to establish theft.
The convictions of Mr Tiry and
Ms Sangweni on this count must be set
aside.
Count
8
[52]
The
problem with this count, which also relates to Zutundu, is that
Constable Ravat gave no evidence in regard to it. While the
tracking
reports in the record show that the vehicle visited the tank farm at
Zutundu, there was no evidence of how long it remained
there. As with
count 4, while the visit to Zutundu was highly suspicious the
evidence was insufficient to establish theft. The
convictions of Mr
Tiry and Ms Sangweni on this count must be set aside.
The
Quarry Hoek counts
[53]
In
respect of the Quarry Hoek counts, as already stated, the State
relied on the evidence of Mr Peach. It is necessary to preface
the
analysis of his evidence with the following observation. His was not
direct evidence, but involved an analysis of tracking
records against
the consignment documents and the drawing of conclusions from those
documents. The drawing of those conclusions
was a matter for the
court, not Mr Peach.
[10]
He started from a premise that any tanker driver who visited Quarry
Hoek was a thief who stole the consignment of fuel they were
transporting. In doing so he failed to have regard to any other
possibilities. Also, in some respects his evidence was not supported
by the documents to which he referred.
[54]
The
key to Mr Peach’s conclusions was the tracking reports. Given
the nature and
modus
operandi
of Mr Tiry, where the tracking reports demonstrated that a
fully laden vehicle en route to Secunda diverted and went to
Quarry
Farm, it was a legitimate inference that it did so for the
purpose of selling the cargo to Mr Tiry. That sufficed to call for an
explanation for the diversion other than theft of the product and, in
the absence of an innocent explanation, the prima facie inference
might harden into proof beyond reasonable doubt. However, it was only
where the tracking reports provided the necessary support
that this
would be the case. For that reason, the evidence on counts 19, 20,
22, 23, 25, 30, 33, 34, 35 and 37 requires closer
scrutiny.
Count
19
[55]
In
count 19 the driver was Mr Buthelezi (Appellant 6). The State’s
case was that on 13 October 2006, having uplifted petroleum
product
from IVS in Durban, and while en route to Secunda tank farm, he
deviated to Quarry Hoek and decanted the product there,
before
proceeding. At Secunda documents were falsified to create an
impression that the product was off-loaded there, whereas,
this was
not true.
[56]
According
to the IVS weighbridge ticket, the tanker left IVS in Durban at 01h50
am on 13 October 2006. Mr Peach said that Sasol’s
security
documents showed that it arrived at the tank farm at Secunda at 19h36
on 13 October 2006 and according to the
offloading
statement had been fully offloaded by 20h00. However, the goods
receipt reflected that the tanker left the tank farm
at 21h05.
According to Mr Peach, it was impossible for the tanker to have been
fully off-loaded by 20h00 if it arrived at 19h36.
In
cross-examination it was suggested to Mr Peach that the offloading
statement, which should have been completed at the beginning
of the
offloading operation and the declaration, which should have been
completed at the end of the offloading operation, were
frequently
completed at the same time. Whilst he rejected the suggestion it does
not strike us as implausible.
[57]
Apart
from the off-loading statement the remaining documents were not
inconsistent with delivery of the product at Secunda. The
other
entries were correct, including the seal numbers on the offloading
statement, according to the IVS documents. The only exception
was the
discharge declaration reflecting that the off-loading took only less
than half an hour. That was the high water mark of
the State’s
case. However, if one accepts the possibility that the tanker left
the tank farm at 21h06, this would have given
sufficient time to
discharge the entire consignment. It is therefore plausible that the
high-pressure official recorded the time
incorrectly in the discharge
declaration. Another consideration is that if there was theft of the
product, Mr Peter Mbatha and
the official who prepared the
declaration, one Moses, would have been charged. They were not. Mr
Peach’s evidence was that
for theft of consignments to the
Sasol Secunda tank farm to take place, the cooperation of the
weigh-in and off-loading officials
was necessary.
[58]
What
is more, the allegation that the tanker driven by Mr Buthelelzi was
at Quarry Hoek en route to Secunda, was not supported by
the tracking
records he relied on. They showed the tanker leaving Secunda at about
midnight on 12 October 2006 and arriving
at Quarry Hoek at
02h40. It remained there until 02h56, before travelling to a spot
southwest of Warden on the R714. It was shown
as leaving there at
about 06h30 and the next relevant entry shows it at the IVS premises
in Durban at 22h14 on Thursday 12 October
2006. That is consistent
with the IVS loading documents for the vehicle's departure from
Durban, but it had no relevance to that
journey.
[59]
From
the tracking reports, it is apparent that the trip Mr Peach relied
on, was an in-bound trip from Secunda to Durban on Thursday
12
October and not a trip from Durban to Secunda on Friday 13 October
2006. The next document in the record related to another
return
journey from Secunda leaving there on the evening of 13 October 2006.
Once again it tracked the return journey of the tanker
travelling
generally south and east from Standerton to Harrismith with a half an
hour stop, possibly at Quarry Hoek, before continuing
to Harrismith.
This did not reflect the journey from Durban to Secunda and
accordingly did not prove that the tanker entered Quarry
Hoek on its
way from Durban to Secunda. The tracking reports which formed the
basis of Mr Peach’s testimony do not relate
to the critical
period, being from the early hours of the morning on 13 October until
14 October 2006. Mr Peach’s conclusion
that the tracking
reports showed that the tanker was on the farm Quarry Hoek en route
Durban to Secunda cannot possibly be correct.
Both visits to Quarry
Hoek reflected on the tracking records were on return journeys from
Secunda to Durban.
[60]
We
have no idea why Mr Buthelezi went to Quarry Hoek on these occasions.
All we know is that on 13 October he was shown as discharging
product
at Secunda. One can only speculate about the purpose of his stop-over
at Quarry Hoek on his journeys back to Durban from
Secunda. The
charge of theft was not proved and both he and Mr Tiry and Ms
Sangweni should have been acquitted on this count.
Counts
20, 22 and 23
[61]
In
count 20 Mr Mthetwa, formerly appellant 5, loaded a consignment of
unleaded petrol from IVS in Durban and set out on a journey
to Sasol
Secunda on 23 October 2006 at 04h04. The goods receipt completed by a
dispatch controller mentioned that the tanker arrived
at the tank
farm on 24 October 2006 at 03h17 and departed at 04h49. The
off-loading statement at Sasol tank farm stated that the
product was
off-loaded on 24 October 2006 at 03h40. A declaration was made that
at 03h40 the tanker had been fully off-loaded and
could leave the
premises empty.
[62]
According
to Mr Peach, the tanker visited Quarry Hoek on 23 and 24 October
2006. He based his conclusion on a tracking report.
That report was
not particularly helpful. It did not have particulars of the entire
journey and did not identify any particular
location. The entry that
Mr Peach relied on showed that the tanker was stationary on 23
October 2006 from 21h54 and resumed its
journey the following morning
at 00h22. It is not clear on what basis Mr Peach concluded that the
place where the tanker had stopped
was Quarry Hoek. The report
contained no co-ordinates that would identify the spot. He criticised
the times shown on the off-loading
report in Secunda saying that it
was impossible to discharge a full cargo in the time available, but
made no allowance for human
error. In our view the evidence fell
short of sustaining a conviction.
[63]
The
same difficulties exist in regard to the tracking reports for count
22, which involved Mr Sithole (Appellant 7) and the original
accused
8 who died in the course of the trial, and count 23, involving a
driver and tank farm officials not charged, where similar
set of
facts obtained. Unless it could be shown that the tanker had been to
Quarry Farm it could not be inferred that its cargo
had been stolen
there or that the documents prepared by Mr Sithole were designed to
conceal the theft. Accordingly, on these three
counts Mr Tiry and Ms
Sangweni should have been acquitted, and on count 22 Mr Sithole
should have been acquitted.
Count
25
[64]
Count
25 involved a Lobtrans tanker engaged by BP South Africa to transport
low sulphur diesel from IVS Durban to its depot in Waltloo,
Pretoria
on 14 October 2006. The driver was Mr Joseph Ramogale, who was not
charged. According to Mr Peach, the tanker left IVS
in Durban and en
route entered Quarry Farm at 17h37 and departed at 17h57. There are
two difficulties with this count. First, it
is doubtful that any
theft of fuel could have been completed in just less than 20 minutes
that the tanker had stopped there. In
any event, there is no evidence
that the tanker arrived without its cargo or with a contaminated
product at Waltloo, Pretoria.
In fact, there are no delivery
documents at all and no evidence of documents being falsified upon
arrival of the tanker at its
destination. The prosecutor put it to Mr
Peach that the documents were administrative and ‘would not
implicate any of the
accused before court’ and Mr Peach agreed.
The court asked Mr Peach whether he knew of the procedures followed
by Lobtrans.
His answer was that he was not familiar with its
procedures. For all these reasons the convictions of Mr Tiry and Ms
Sangweni on
this count are not sustainable, and should be set aside.
Count
30
[65]
In
count 30 the driver was Mr Frans Mofokeng, a witness warned in terms
of s 204 of the CPA. He loaded a 777 Logistics (Pty) Ltd
tanker at
IVS Durban and set out to Secunda on 28 November 2006. Mr Mofokeng
testified that he had heard about Mr Tiry buying petroleum
products
from drivers. This, according to him, was common knowledge amongst
the drivers. Someone had told him that R70 000 would
be paid for the
product in his tanker. He therefore diverted to Quarry Hoek on 28
November 2006 en route to Secunda, intending
to sell his consignment
to Mr Tiry. However, he found a significant queue, and was prevented
from speaking to Mr Tiry in person.
Anyway, he said, it would take
too long to decant his load. As he could not wait that long, he left
without doing so. Mr Mofokeng’s
evidence of the tanker’s
presence at Quarry Hoek is corroborated by the tracking reports,
which show that the tanker arrived
there at 23h42 on 28 November 2006
and made start stop movements at a very slow pace until 5h50 on 29
November 2006 when it left.
[66]
No
inference that petrol was in fact stolen, can be drawn in this
instance, as there is a plausible explanation by Mr Mofokeng as
to
why he eventually left without decanting his consignment. Given that
the court a quo accepted his evidence, it must a fortiori
be accepted
that no petrol was stolen at Quarry Hoek. Accordingly, the
convictions against Mr Tiry and Ms Sangweni must be set
aside.
Count
33
[67]
This
count also involved a witness warned in terms of s 204, Mr Eric
Mahosane. He loaded a Logistics tanker with reformat at IVS
in Durban
on 4 December 2006. He diverted to Quarry Hoek with the
intention of selling his consignment to Mr Tiry, whom he
had never
met before, but had spoken to telephonically. He testified that when
he was about to discharge his tanker the pumps stop
working. They
could not be fixed, and a second pump would also not work. In the
result no petrol was in fact stolen. The tracking
report showed that
the tanker entered Quarry Hoek on 4 December 2006 at 23h27 and left
the following morning at 03h51.The State
conceded that because there
was no petrol stolen, the conviction on this count should be altered
to one of attempted theft.
Count
34
[68]
The
driver in count 34 was Mr Tshabalala (Appellant 3). Mr Peach
testified that the tanker loaded product at IVS in Durban,
proceeded
to Sasol in Secunda and on its return entered the farm Quarry Hoek
for a period of a little over one hour. The convictions
are not
supported by the documentation – the IVS weighbridge ticket and
Sasol’s non-commercial goods receipt. The former
shows that the
tanker loaded reformate on 23 November 2006 at IVS and left at 12h38.
Sasol’s goods receipt shows that the
tanker arrived at the tank
farm in Secunda at 09h00 on 24 November 2006 and left at 11h26 the
same day. Although there are discrepancies
in all the weights shown
on that document, nothing really turns on this as they fell within
the allowable 500-kilogram tolerance.
The tanker’s movements
described above are consistent with the tanker having been driven
directly from Durban.
[69]
The
tracking reports are of no assistance in this regard. The first one
reflects the tanker at Secunda on 22 November 2006, the
day before it
left Durban on the journey in question. It appears to relate to a
return trip from Secunda to Durban arriving at
about 16h06 on that
day. The second report, dated 24 November 2006, is also a return
journey. It shows the tanker being stationary,
or travelling a
minimal distance, between 10h24 and 11h47 on that day, presumably in
Secunda.
It then travelled 180
kilometres, which corresponds with the distance between Secunda and
Warden. The plot in the record shows it
in the middle of Warden,
presumably at the truck stop and then leaving the town and travelling
northward.
Eventually,
it ended at Quarry Hoek at 20h00 and left an hour later.
[70]
The
inference that the State asked the court to draw in respect of the
Quarry Hoek counts should be borne in mind. It was that loaded
tankers en route from Durban to Secunda, which diverted to Quarry
Hoek before resuming their journeys to Secunda, must have decanted
their loads into the tanks at Quarry Hoek and replaced them with
water or some other substance to deceive the officials at Sasol.
Indeed, where it was established that a tanker entered Quarry Hoek en
route to Secunda from Durban, that inference could legitimately
be
drawn, calling for a rebuttal. However, a similar inference cannot
legitimately be drawn in respect of a reverse trip, ie a
diversion to
Quarry Hoek on a trip from Secunda to Durban.
[71]
To
draw a legitimate inference would require the tanker to enter and
leave Sasol without offloading at all. The State’s case,
it
must be remembered, was that the drivers had developed a method to
disguise the fact that the petroleum or diesel had been stolen
on the
way to Sasol. Given that fact, it is hard to think of a reason why a
driver would depart from that practice, complete his
journey, obtain
fraudulent documents and then return to perpetrate the theft. For
these reasons, the convictions of Mr Tiry, Ms
Sangweni and Mr
Tshabalala on this count must be set aside.
Count
35
[72]
Count 35 involved Mr Tshabalala (Appellant 3) as the driver and
Mr Sithole (Appellant 7) as the Sasol official who signed
a
receipt for the goods. The IVS dispatch note shows that Mr Tshabalala
left Durban on 25 November 2006 at 04h35. This
was shortly
after his return from the journey in relation to count 34. Mr Peach’s
conclusion from the documentation was that
the vehicle entered Quarry
Hoek at about 20h00 on the evening of 25 November 2006 and
left at approximately at 21h08.
This was based on two tracking
reports. However, those tracking reports are dated 24 November 2006,
which is the previous
day and a comparison with the similar reports
in count 34 reveals them to be the same documents. The tracking
report for 25 November 2006
does not show a significant
stop in or around Warden at any time on 25 November 2006. In
fact, those reports do not reflect
the tanker going beyond
Standerton. There are no offloading reports at Secunda, but the goods
receipt reflects the tanker as having
arrived at the Sasol tank farm
at 6h00 on Sunday 26 November 2006 and left at 8h17 the same day.
That would be consistent with
the vehicle having spent some time in
Standerton, before travelling on to Secunda. The court a quo’s
conclusion that the
tanker entered Quarry Hoek on 25 November 2006
and never entered the Sasol tank farm is not sustained by the
evidence. The convictions
of Mr Tiry, Ms Sangweni, Mr Tshabalala
and Mr Sithole must similarly be set aside.
Counts
42, 43 and 45
[73]
Mr Tiry and Ms Sangweni were discharged on counts 27, 28 and 29 at
the close of the State case in terms of
s 174
of the
Criminal
Procedure Act 51 of 1977
. On counts 42, and 43 the only evidence
against them consisted of two unexplained documents that were
presumably found when Mr
Tiry’s premises were searched. No
evidence was led to explain where they were found; what they were
about; or why they were
connected to Mr Tiry. On their face they
referred to sales of petrol and paraffin, the latter a commodity in
respect of which there
was no evidence whatsoever of theft. The trial
court did not mention them in its judgment or furnish any reasons for
holding that
they provided evidence of theft on the part of Mr Tiry
and Ms Sangweni. They were also convicted on count 45 as was
Mr Buthelezi
(Appellant 6), but the State accepted that it led
no evidence, on this count. The convictions on each of these counts
must be set
aside.
Sasol:
Counts 12, 13, 14, 15, 16, 17, 18, 21, 24, 26, 31, 32, 36, 37, 38,
39, 40, and 41
[74]
Below is a summary of the evidence in respect of the rest of the
counts. In each case it sufficed to establish a prima facie
case of
theft involving the driver and the relevant off-loading official at
Secunda. In none was an innocent explanation forthcoming.
Accordingly, the relevant accused were properly convicted.
[75]
Count 13 involved Mr Sithole (Appellant 7). A Wardens tanker driven
by Mr Aubrey Mzimela loaded unleaded petrol at IVS Durban
and left
for Secunda on 18 August 2006 at 10h12. According to the goods
receipt signed by Mr Ferguson Mbuthi as the dispatch
officer,
the tanker arrived at the tank farm at 01h41 on 19 August 2006. The
off-loading statement completed by Mr Sithole did
not reflect the
time of the off-loading. However, he signed a declaration that the
tanker had been fully off-loaded at 02h00 and
could leave the
premises empty. However, the tracking records showed that the tanker
entered Quarry Hoek at 22h33 on 19 August
2006 and left the following
morning, 19 August 2006 at 00h36 and arrived in Secunda at 04h06. The
conclusion by Mr Peach was that
the tanker was never at the
off-loading bay, and must have come empty, as at the time reflected
in the discharge documents as being
when the tanker was at the Sasol
tank farm, it was in fact at Quarry Hoek
[76]
Count 14 involved Mr Buthelezi (Appellant 6) as the driver for a
Wardens tanker, and Mr Nkosi (Appellant 8) as the weighbridge
official at Sasol tank farm in Secunda. According to the IVS
document, the consignment was loaded on 20 August 2006 and left
Durban at 07h50. According to the off-loading statement at Sasol tank
farm, signed by Mr Nkosi, the tanker was off-loaded at 00h15
on
22 August 2006. Also at 00h15, he made a declaration to the
effect that the consignment had been fully off-loaded at high
pressure tank farm and was certified to leave the premises empty.
However, the tracking report showed that the tanker entered Quarry
Hoek farm at 18h56 on 21 August 2006 and left at 20h40. It arrived at
Secunda at 23h13 but never entered the tank farm. Instead,
it parked
at a truck stop in town until 06h45 on 22 August 2006. The upshot was
that the documents certifying the tanker to have
entered the tank
farm were falsified.
[77]
In count 15, a Wardens tanker driven by Mr Alpheus Mabaso loaded
petrol at IVS Durban and left for Sasol Tank farm, Secunda
at 20h43
on 22 August 2006. Mr Sithole was the off-loading official at
Secunda. According to the goods receipt, completed
by the former
accused 8, now deceased, the tanker arrived at Secunda at 14h48 on 24
August 2006. The off-loading statement reflected
no time of the
off-loading, only the date of 24 August 2006. In his capacity as the
high pressure official, Mr Sithole signed a
declaration that the
tanker had fully off-loaded the consignment and could leave the tank
farm at 15h00 on 24 August 2006.
This was merely 12 minutes
after the stated arrival time of 14h48 stated above.
[78]
The tracking reports showed that the tanker had, on 21 August 2006,
en route from Durban to Secunda, entered Quarry Hoek at
19h30 on 23
August 2006 and left at 21h35. It arrived in Secunda the next morning
at 07h24 but went to the truck stop in town,
and remained there until
19h02 when it undertook another trip to Durban. It never entered the
Sasol Tank farm on its arrival in
Secunda.
[79]
Count 16 involved a driver and security officials who were not
charged. Mr Alpheus Mabaso, on 23 October 2006, drove a Wardens
tanker from IVS Durban, loaded with unleaded petrol and set out to
Secunda tank farm. The tracking reports showed that en route
to
Secunda from Durban, the tanker entered Quarry Hoek at 19h13 and
remained there for over two hours until 21h20. The goods receipt
at
Secunda tank farm, signed by Mr Jack Manamela, reflected the arrival
time at Secunda tank farm as 01h26 on 24 August 2006. The
off-loading
statement reflected the off-loading time as 02h10. A security
officer, Mr Mofokeng, declared that at 02h10 the
tanker had been
fully off-loaded and could leave the premises empty. The goods
receipt reflected that the tanker left the tank
farm at 03h17 on 24
August 2006.
[80]
In count 17, a Wardens tanker driven by Mr William Ngqekethe loaded
unleaded petrol at IVS in Durban. The IVS weighbridge ticket
reflects
that the tanker was sealed with seals numbered A047480 to A 047492 by
Intertek. The tanker left for Secunda at 02h58 on
23 August 2006. The
goods receipt at Sasol Secunda tank farm reflected that the tanker
arrived there at 13h51 on 24 August 2006.
Mr Sithole
completed an off-loading statement in which he, among others,
confirmed that the tanker seal numbers corresponded with
the seal
numbers as sealed by Intertek at IVS. In his capacity as the high
pressure official, he also signed the declaration that
the tanker had
been fully off-loaded at 15h00 on 25 August 2006 and was ready to
leave the premises empty.
[81]
The tracking reports showed that the tanker, en route from Durban,
entered Quarry Hoek at 21h59 on 24 August 2006 and left
the following
morning, 25 August 2006, at 03h59. The report further showed
that the tanker drove to Secunda, but never entered
the tank farm.
[82]
On this count, Mr Peach also testified about a seal with number
A047481 he discovered at Quarry Hoek on 27 November 2007. On
that
occasion he had accompanied the investigation officer to the farm to
load product for testing. He concluded that the seal
was part of the
seals used by Intertek when the tanker left loaded at IVS in Durban.
His conclusion was therefore that the off-loading
statement that the
tank number corresponded with the seal numbers as sealed by Intertek
at IVS, could not be true and was falsified.
[83]
Count 18 also involved a driver and security officials who were not
charged. Mr Branty Ntuli drove a Wardens tanker on 26 August
2006,
loaded with unleaded petrol, from IVS in Durban and set out to
Secunda tank farm at 18h40. The goods receipt completed by
dispatch
controller, Mr Peter Mbatha, showed that the tanker arrived at the
tank farm at 10h52 on 27 August 2006. The off-loading
statement
completed by Mr TA Letebele reflected the off-loading time as 12h35.
The same time is reflected as the time when the
tanker was declared
fully off-loaded and ready to leave the tank farm empty. The goods
receipt reflected that the tanker left the
tank farm at 14h24,
without any explanation for it remaining there for two hours after
discharge was complete. The tracking reports
showed that the tanker
entered Quarry Hoek on its way to Secunda at 03h24 and left at 04h04.
From there it ended at Roberts Drift
near Meyerville. It never
entered the tank farm at Secunda.
[84]
Count 21 involved the deceased appellant 5 as the driver of a
Wardens’ tanker which, on 25 October 2006 at 07h56 left
IVS
Durban after loading petrol, destined for Sasol Secunda tank farm.
According to security documents completed at the tank farm,
the
tanker arrived on 26 October 2006 at 03h01 and was fully off-loaded
by 03h30, which according to Mr Peach, was ‘impossible’.
To fully off-load a tanker, he explained, normally took over an hour.
The tracking report showed that the tanker entered Quarry
Hoek en
route to Secunda on 25 October 2006 at 21h21 and left at 00h09
the morning of 26 October 2006.
[85]
Count 31 involved
Mr
Nkosi (Appellant 8) and
Mr
Moisi (Appellant 9). The latter was a driver for Logistics. On 28
November 2006 he loaded reformate (octane 95) from IVS Durban.
The
goods receipt at Sasol tank farm in Secunda completed by the dispatch
controller, showed that the tanker arrived at 06h40 on
29 November
2006. The off-loading statement was completed by Mr Nkosi, who to the
effect that the truck was fully off-loaded at
06h50. A Mr Letebele
declared that the tanker was cleared to leave the premises empty, at
the same time, ie 06h50. The tracking
reports showed that the tanker
entered Quarry Hoek at 00h12 on 29 November 2006 and left at 03h50.
Appellant 8 (Mr Nkosi) was the
high pressure official.
[86]
Messrs Nkosi and Moisi was also involved in count 32. He loaded
reformate octane from IVS in Durban on 30 November 2006 and
left for
Secunda tank farm at 14h38. The goods receipt reflected the tanker’s
arrival time as 06h51 the following morning.
The off-loading
statement completed by Mr Nkosi reflected the off-loading time as
07h00 on 1 December 2006. The time on the declaration
is reflected as
‘07h’, ie no indication as to how long after 07h00. The
goods receipt reflected that the tanker left
the tank farm at 08h18.
The tracking report showed that en route to Secunda the tanker
diverted to Quarry Hoek on 1 December
2006 at 00h21and left at
03h48.
[87]
Count 36 involved appellants 3 and 7. Mr Buthelezi loaded a Freight
Dynamic tanker with reformate at IVS Durban on 3 December
2006. The
bulk tank inspection was conducted by Intertek, which sealed the
tanker with ten seals, with numbers from 089660 to 089669.
The tanker
left for Secunda at 23h55 on 3 November 2006. The goods
receipt, signed by appellant 3 and a dispatch controller,
reflected
the arrival time at Secunda tank farm as 18h27 on 4 December
2006. The off-loading statement does not state
the off-loading
time.
[88]
However, among other things, Mr Sithole, as the off-loading officer,
certified he had compared the tanker number and seal numbers
with
those recorded at IVS. A security officer declared that at 17h45 the
tanker had been fully off-loaded and could leave the
premises empty.
The goods receipt reflected that the tanker left the tank farm at
18h27 on 4 December 2006. Mr Peach testified
that he visited Quarry
Hoek on 30 July 2007 when samples of petroleum products found there,
were to be obtained for analysis. While
there, he discovered an
Intertek seal with number A089662.
[89]
Mr Peach concluded from this discovery that the tanker driven by
Mr Buthelezi referred to earlier, was at Quarry Farm.
According
to Mr Peach, the statement by Mr Sithole that the seals were intact
when the tanker was inspected on 4 December 2006,
was false. Mr Peach
further testified that no seals would ever have the same number. This
was confirmed by Mr Eiston Naidoo, a
coordinator at Intertek, who
positively identified the seal as the one allocated by Intertek to
the tanker.
[90]
In count 37 Mr Tshabalala was again the driver of a Freight
Dynamic tanker, destined for Sasol tank farm, Secunda on 5
December
2006. The goods receipt at Sasol stated that the tanker arrived at
04h39 on 6 December 2006. The off-loading statement
by Mr Sithole
(Appellant 7) reflected no time, but the off loading declaration
recorded that the tanker had been fully off-loaded
at 04h50, that is,
11 minutes later, which was impossible. The goods receipt reflected
that the tanker left the weighbridge at
05h42, but so did the
security gate checkout, which was two kilometres further away.
However, the tracking report showed that the
tanker was at Quarry
Hoek at 23h10 on 5 December 2006 and left the following morning at
01h38. Mr Peach concluded from this that
the documents had been
falsified. The unexplained diversion for a significant period of time
to Quarry Hoek, when taken in conjunction
with the difficulties with
the documents relating to the discharge process, was sufficient to
make a prima facie case of theft
of product and it being covered up
by the falsification of documents. Yet neither appellant 3 nor
appellant 7 gave evidence to
provide an innocent explanation.
[91]
Although this count involved appellants 3 and 7, as driver and
off-loading official respectively, for some reason, there is
no
verdict on this count in respect of appellant 3. This is despite the
fact that the court a quo dealt with this count in its
judgment.
However, Mr Sithole, who would have falsified the official
documentation at the Sasol Secunda tank farm, was convicted
of the
count. One can only attribute the omission to inadvertence on the
part of the learned judge. That is perhaps fortunate for
Mr
Tshabalala, but it is not a reason to disturb the conviction of Mr
Sithole, or those of Mr Tiry and Ms Sangweni.
[92]
In count 38 a tanker driven by Mr Tshabalala left IVS in Durban
shortly before 09h00 on 7 December 2006. The tracking report
showed
that at approximately 20h00 on 7 December 2006 it passed Warden and
continued on the road before doubling back to Quarry
Hoek. There is
no indication as to how long it remained there or what time it left.
Despite Mr Peach baldly testifying that the
tanker was on the farm
for three hours, that was not supported by the documents. However,
the tracking report for 8 December
2006 shows the vehicle
underway shortly after midnight, having travelled 11 kilometres and
slightly north of Warden. It then travelled
175.67 kms which is
consistent with the distance between Warden and Secunda. It is shown
on the security gate reports as arriving
at 03h14 and leaving at
04h21. The off-loading certificate said that it was completely
off-loaded by 03h37, which was impossible.
There was sufficient
evidence to raise a prima facie case calling for an answer, but none
was forthcoming.
[93]
In count 39, a Freight Dynamics tanker driven by Mr Bongane Dlamini
loaded reformate at IVS in Durban. The IVS weighbridge
ticket
reflects that Intertek sealed the tanker with seal numbers from
083448 to 083455 (bottom seals) and 083440 to 083447 (top
seals). The
tanker left for Secunda at 14h52 on 6 December 2006. The goods
receipt at Sasol Secunda tank farm reflected that
the tanker arrived
there at 08h35 on 7 December 2006.
[94]
An off-loading statement completed by Mr RZ Maseko confirmed, among
others, that the tanker’s seal number corresponded
with the
seal numbers as sealed by Intertek at IVS. Also, in his capacity as
the high pressure official, Mr Maseko, signed the
declaration that
the tanker had been fully off-loaded at 08h55 on 7 December 2006
and was ready to leave the premises empty.
[95]
There were no tracking reports in this instance. However, Mr Peach
testified that on 27 November 2007, among the seals he picked
up at
Quarry Hoek, was one with number 083446. His conclusion was that this
seal was one of the seals utilized by Intertek to seal
the tanker on
6 December 2006 as stated above. As in count 36, this was confirmed
by Mr Eiston Naidoo. By parity of reasoning,
Mr Peach concluded that
the statement by Mr Maseko that he inspected the seal at the tank
farm on 7 December 2006 could not be
correct as the seal had clearly
been broken and left at Quarry Hoek. The upshot of his evidence was
that the tanker, en route from
Durban to Secunda, entered Quarry Hoek
where the consignment was stolen.
[96]
Count 40 involved Mr Sithole as the weighbridge official at the
Secunda tank farm. A Freight Dynamics tanker, driven by the
same Mr
Dlamini as in count 39, loaded reformate at IVS in Durban and left
for Secunda tank farm at 01h21 on 8 December 2006. The
goods receipt
reflected the tanker’s arrival time as 02h03 on 10 December
2006. The off-loading statement completed by appellant
7, reflected
the off-loading date only (10 December 2006) but no time. The time on
the declaration is reflected as 02h15. The tracking
report showed
that en route to Secunda the tanker entered Quarry Hoek on 9 December
2006 at 10h09 and left at 17h30.
[97]
Count 41 also involved appellant 3 as driver and appellant 7 as a
weighbridge official at Secunda tank farm. Appellant 3 loaded
a
Freight Dynamics tanker with reformate at IVS in Durban on 9 December
2006. The goods receipt at Sasol tank farm in Secunda signed
by
appellant 3 and a dispatch controller, Mr Ferguson Mbuti, shows that
the tanker arrived at 22h54 on 10 December 2006.
In the
off-loading statement, appellant 3 only recorded the date, but no
time. He further completed the declaration that the truck
was fully
off-loaded and cleared to leave the premises empty, at 23h00 on 10
December 2006. The tracking reports showed that en
route from Durban
to Secunda, the tanker entered Quarry Hoek at 14h38 on 10 December
2006 and left at 19h00, after which it left
for Secunda.
[98]
The upshot of this evidence is that on all these counts the State
established that appellants 3, 6 and 9 diverted from their
established route to Quarry Hoek. Given the proven activities of Mr
Tiry and the evidence of losses and contaminated reformat arriving
in
Secunda this served to establish a very strong prima facie case of
theft of product, which called for a rebuttal. In the absence
of any
rebuttal, the court a quo was correct to accept the State’s
evidence.
Zetundu:
Counts 3, 5, 6, 7, 9, 10, 11 and 44
[99]
The evidence in regard to these counts has been described in some
detail in paragraphs 11 to 13 and it need not be repeated.
Mr Tiry
was operating an illegal tank farm on the farm Zetundu and in the
case of all counts save count 44 there was evidence from
vehicle
tracking devices of vehicles diverting from their authorised routes
to the Engen depot in Mokopane and visiting the Zetundu
property for
sufficient lengths of time to discharge their cargoes. This called
for an answer but none was forthcoming.
[100]
Count 44 arose from the evidence of Mr du Plooy, at the time the
co-owner of F M Marketing, who over the period from April
2005 to
February 2006 purchased diesel from Mr Tiry for a little over
R385 000. Taking into account the value of the diesel
stolen
from Engen that probably amounted to somewhere between 70 and 80 000
litres of diesel. Mr Tiry had no licence to trade
as a wholesaler of
diesel and no legitimate source of such diesel. The inference is that
it was stolen and that was reinforced
by Mr du Plooy’s evidence
that he purchased it at below the regulated price. In the result
there was sufficient evidence
calling for an answer and not receiving
one to justify the convictions on this count.
Summary
on theft counts
[101]
In sum, in respect of both Zutundu and Quarry Hoek counts, the
evidence that Mr Tiry was operating an unlawful enterprise,
purchasing petroleum products from tanker drivers, for resale at
discounted rates using the two farms Zutundu and Quarry Hoek as
his
bases, was overwhelming. The evidence of losses of petroleum products
by Engen and Sasol was likewise substantial. Given those
factors, the
drivers (appellant 4 in respect of Zutundu and appellants 3, 6 and 9
in respect of Quarry Hoek) needed to give an
innocent explanation for
the diversion from their established routes to the respective farms
if an inference was not to be drawn
that they went there and sold the
whole or part of their loads. As far as appellants 7 and 8 are
concerned, similarly they needed
to explain the clearly falsified
security documents at the Sasol tank farm in Secunda. In the case of
Mr Tiry he needed to
give an explanation for the tankers
visiting the two farms. No such explanation was proffered in
cross-examination and none of
the appellants testified. The court a
quo was thus correct to accept the State’s case.
Ms
Sangweni
[102]
As far as Ms Sangweni is concerned, it is so that there is no
evidence of her direct involvement with the buying and selling
of
petroleum products or the physical operation of any of the two farms.
However, her association with Mr Tiry’s activities
was
clearly established. They were apparently in an intimate relationship
and lived together at Zutundu and Quarry Hoek. The nature
of the
business being carried on there would have been immediately apparent
to her, surrounded as she was by a fully equipped tank
farm in each
place. She would have known that tankers would arrive at the
properties at all times of day or night and discharge
their cargoes.
She cannot have believed that such clandestine activities were
lawful.
[103]
As to her involvement, bank accounts used by the enterprise were
opened in her name, or that of a close corporation, PDN Investments
CC, of which she was the sole member. The motor vehicles were
registered in the name of the close corporation. The keys to one
of
the vehicles, a Range Rover that had been abandoned at a shopping
centre in Pretoria, were found in a briefcase in the room
where she
was arrested together with a large sum of money in cash. The
municipal account at Zutundu was in her name, and so was
the post box
used at Quarry Hoek. Mr Dos Santos’ evidence was that on
certain occasions she collected the monies for the
sales in the
Polokwane area. Both she and Mr Tiry deposited amounts in part
payment for the acquisition of Quarry Hoek. When Mr
Tiry fled from
Quarry Hoek after his activities were exposed on 14 December 2006,
she accompanied him to Monument Park in Pretoria.
When Mr Tiry got
wind that the police were closing in on him, Ms Sangweni fled with
him and went into hiding in a village in Polokwane,
where they were
eventually arrested. When the police arrived and questioned her about
Mr Tiry, she tried to conceal him, but he
was found hiding on the
same property. A search of the property revealed sixteen mobile
phones with five batteries; deposit slips
showing deposits of large
sums of money into her accounts; a number of keys and documents. Her
handbag had a substantial sum in
cash in it.
[104]
On these considerations, she must have been aware of the nature of
the business being conducted there. She could not explain
the source
of the money in her handbag and the large sums of money found around
the house, as well as the multiple keys, telephones
and other items.
Overall there was sufficient evidence of her association with Mr Tiry
in his criminal activities. In the absence
of evidence from her
explaining the extent of her knowledge and involvement it is a proper
inference that she was his associate
in the unlawful scheme and
participated in it.
The POCA charges
[105]
We turn now to the relevant provisions of POCA,
[11]
namely
ss 2(1)
(e)
and
2
(1)
(f)
,
on which counts 1 and 2 are based.
Section 2(1)
(f)
,
under which only appellants 1 and 2 were charged, provides:
‘
Any
person who manages the operation or activities of an enterprise
[12]
and who knows or
ought reasonably to have known that any person, whilst employed by or
associated with that enterprise, conducts
or participates in the
conduct, directly or indirectly, of such enterprise’s affairs
through a pattern of racketeering activity,
shall be guilty of an
offence.’
Mr
Tiry was convicted of count 1 but Ms Sangweni was acquitted.
[106]
In addition, Mr Tiry, Ms Sangweni and the remaining appellants were
each charged with, and convicted of, an offence under
s 2(1)
(e)
,
which reads:
‘
Any person who,
whilst managing or employed by or associated with any enterprise,
conducts or participates in the conduct, directly
or indirectly, of
such enterprise’s affairs through a pattern of racketeering
activity, within the Republic or elsewhere,
shall be guilty of an
offence.’
[107]
The difference between
s 2(1)
(e)
and
s 2(1)
(f)
was explained as follows in
S
v Eyssen
:
[13]
‘
The essence of the
offence in ss (e) is that the accused must conduct (or participate in
the conduct) of an enterprise’s affairs.
Actual participation
is required (although it may be direct or indirect). In that respect
the subsection differs from ss
(f)
,
the essence of which is the accused must know (or ought reasonably to
have known) that another person did so. Knowledge, not participation,
is required. On the other hand, ss
(e)
is wider than ss
(f)
in that ss
(e)
covers a person who was managing, or employed by, or associated with
the enterprise, whereas ss
(f)
is limited to a person who managers the operations or activities of
an enterprise . . .’
[108]
As a general expression of the difference between the two sections,
there can be no quarrel with the above statement. However,
when taken
together with the fact that count 1 under
s 2(1)
(f)
was, in
that case and in the present case, preferred against the principal
perpetrator or mastermind of the criminal enterprise,
whilst count 2
was levelled as a supplementary charge against both the mastermind
and the other participants, it tends to obscure
the fact that
s
2(1)
(f)
is intended to supplement the provisions of
s 2(1)
(e)
and to close a potential loophole in the latter. That loophole arises
because
s 2(1)
(e)
requires of a person managing an
enterprise to conduct or participate in the conduct of such
enterprise’s affairs and to
do so through a pattern of
racketeering activity. In terms of the definition in
s 1(xii)
of POCA
the latter means ‘the planned, ongoing, continuous or repeated
participation or involvement in any offence referred
to in schedule
1’ of which theft is one. It must include two such offences.
The word ‘planned’ qualifies all
three of the other
concepts, as explained at para 8 in
Eyssen
. It was further
observed that ‘neither unrelated instances of proscribed
behaviour nor an accidental coincidence between
them constitute a
“pattern” and the word “planned” makes this
clear’.
[109]
There may be cases where a particular enterprise is conducted through
a pattern of racketeering activity, but the manager
does not conduct
or participate in the conduct of such affairs by way of participation
or involvement in the offences constituting
the racketeering
activities. However, they may know, or ought reasonably to know, that
persons employed by or associated with the
enterprise are conducting
or participating in the conduct of the enterprise’s affairs
through a pattern of racketeering activity.
In other words,
s 2(1)
(f)
is directed at bringing within the net of the criminal conduct
constituted by
s 2(1)
the manager who removes themself from the
actual conduct of the enterprise. An example of such a case, derived
from the facts of
this matter, would be the position of the owner of
a number of service stations, who was unaware that the managers of
the service
stations were conspiring with someone like Mr Tiry to
obtain stolen petrol for sale at the service stations. However, if as
a result
the sales of petrol generated unexpectedly high profits for
the volumes involved, it might be said that the owner ought
reasonably
to have known of the employees’ criminal mode of
conducting the enterprise. That would attract liability under s s
2(1)
(f)
.
[110]
In simple terms, following the distinction identified in
Eyssen
,
s 2(1)
(e)
catches the manager who is involved actively in
the conduct of the enterprise through a pattern of racketeering
activity, whilst
s 2(1)
(f)
catches the manager whose
hands are clean, but who knows or ought reasonably to have known that
the enterprise was being conducted
through a pattern of racketeering
activity. Knowledge of what subordinates are doing, or ignorance,
where there ought reasonably
to be knowledge, suffices to attract
liability.
[111]
Once that distinction is recognised, it appears that charging and
convicting someone of both offences may well involve an
impermissible
splitting of charges, as held in the minority judgment in
S
v Prinsloo and Others
.
[14]
The fact
that the State relied on precisely the same facts for both charges
immediately suggests that there was an improper splitting
of charges.
What is more, Mr Tiry’s active involvement in the conduct of
the enterprise brought him squarely within
s 2(1)
(e)
.
There was no need to invoke
s 2(1)
(f)
.
However, his counsel did not take this point, nor have we had
argument on the question of splitting of charges.
[15]
The
majority in
Prinsloo
rejected a submission along these lines in paras 55 to 59 of their
judgment. They said:
‘
Apart from the above,
we, in any event, see no reason why the legislature would have
intended to restrict the prosecution of persons
under
s 2(1)
(f)
of
POCA solely to those managers who have not dirtied their hands by
personal acts of participation in the conduct of the
affairs of the
enterprise. Such a construction would lead to an absurdity, where the
manager of a multi-billion rand racketeering
enterprise who has had
minimal personal active participation, would only be liable for the
minimal participation role under
s 2(1)
(e)
and
not under
s 2(1)
(f)
for
the extensive managerial role played in a highly successful criminal
enterprise.’
[112]
With respect we have a difficulty with this reasoning. It seems to us
that it is not a case of having to choose whether liability
is
confined to the one or other section, but a matter of selecting the
charge that most appropriately covers the criminal conduct
in
question. If the manager has ‘dirtied their hands’
extensively
s 2(1)(
e)
may be more appropriate, while if
their active involvement is more limited, but their oversight of the
enterprise greater,
s 2(1)
(f)
may fit the bill. However,
we limit ourselves to expressing those reservations because it is not
appropriate for a three-judge
court to overrule a relatively recent
decision by a similarly constituted court in circumstances where the
issue was not raised
or argued. Fortunately, in this case conviction
on both charges affects only Mr Tiry and the sentence to be imposed
will ameliorate
the problem.
[113]
Apart from the submissions which we have already considered, no real
argument
was
advanced
on behalf of Mr Tiry against his conviction. With regard to Ms
Sangweni, we have, in paragraphs 102 to 104, set out her
involvement
and proximity to Mr Tiry’s criminal activities. That would
justify her conviction on the theft counts and on
the contravention
of
s 2(1)
(e)
of POCA.
[114]
As regards appellants 7 and 8, the security officials at the Sasol
tank farm, the inference that their participation must
have been
organised in advance, is ineluctable. That being so, even if they
were not employed by Mr Tiry’s criminal enterprise,
they were
associated with it and participated directly in the conduct of the
enterprise's affairs through a pattern of racketeering
activity.
Thus, appellants 7 and 8 were properly convicted on count 2.
[115]
The same cannot be said of appellants 3, 4, 6 and 9, the drivers. The
evidence of the two
s 204
witnesses was that there was a general
awareness amongst drivers in the industry that Mr Tiry was willing to
purchase petroleum
products being transported by them from IVS to
Secunda – presumably a similar word of mouth knowledge existed
when he was
operating at Zutundu. In the absence of evidence as to
the precise nature of their role in appellant’s operations, it
is
difficult to accept the notion that the mere fact of their having
stolen the product in their tankers and sold it to him means that
they were associated with the enterprise and engaged indirectly in
conducting its activities. It is so that the enterprise could
not
have been conducted unless Mr Tiry was able to find sources from
which he could purchase stolen petrol. However, there is no
evidence
that he organised a network of dishonest drivers. The nearest to such
evidence is an unidentified list of telephone numbers
and a phone
call to one of the
s 204
witnesses. Random dishonesty by drivers
does not, in our view, amount to association with appellant’s
criminal enterprise.
That accords with the observations in
Eyssen
(para 6) that:
‘
Taking
a group of individuals associated in fact, which is the relevant part
of the definition for the purposes of this appeal,
it seems to me
that the association would at least have to be conscious; that there
would have to be a common factor or purpose
identifiable in the
association; that the association would have to be ongoing; and that
the members would have to function as
a continuing unit.’
[116]
There is no evidence that there was a conscious association between
the drivers and Mr Tiry or that they functioned as part
of a
‘continuing unit’. In order for them to be convicted they
needed to be part of the enterprise operated by Mr Tiry.
They
were not, any more than those who purchased stolen diesel and petrol
from appellant were part of his enterprise. Criminal
liability under
s 2(1)
(e)
flows from managing, being employed by or being
associated with the enterprise. It is directed at those who are
actively engaged
in that enterprise on an ongoing basis. The drivers
did not fall in that category. In the result the conviction of
appellants 3,
4, 6 and 9 of count 2 should be set aside.
Sentence
[117]
Finally, we turn to sentence. As stated in the introduction, Mr Tiry
was sentenced to an effective period of 30 years’
imprisonment;
Ms Sangweni to an effective 18 years’ imprisonment; and the
rest of the appellants each to 15 years imprisonment.
The theft
counts carried a prescribed minimum sentence of 15 years’
imprisonment in terms of s 51(2) of the Criminal
Law Amendment Act
105 of 1997 (the CLLA). It was submitted on behalf of the appellants
that the sentences are excessive and unreasonably
harsh.
[118]
A court of appeal is not at large to interfere with the sentence
imposed by the trial court. It is only entitled to do so
where there
is an irregularity or material misdirection. If the complaint is that
the sentence is too severe, an appeal court would
only interfere if
it considers that there is a striking disparity between the sentence
passed and that which the court of appeal would
have
passed.
[16]
[119]
Only appellant 9 testified in mitigation of sentence. The rest
elected to place their personal and mitigating circumstances
on
record from the bar. No useful purpose would be served by reciting
those in any detail. In the light of the seriousness of the
offences,
and the substantial period of imprisonment prescribed by the law in
respect of the theft counts, the absence of anything
exceptional in
their personal circumstances tends to render them largely immaterial
in determining what period of imprisonment
should be imposed.
[17]
[120]
Mr
Tiry was sentenced to an effective 30 years’ imprisonment. The
established practice is that such a sentence is usually
imposed in
very exceptional circumstances.
[18]
Whilst
sentence is always individualised and bound to the facts of a
particular case, value can be gained by considering sentences
imposed
in comparable cases. In this regard
Prinsloo
comes to mind. It involved a multi million rand, fraudulent
Ponzi scheme, that impoverished many elderly people and people
of
limited means. The mastermind behind it was sentenced to an effective
25 years’ imprisonment. For Mr Tiry, whose conduct
was neither
so widespread, nor so harmful in its consequences, we would have
considered a sentence of 20 years’ imprisonment
a heavy
sentence as a trial court. The disparity between the sentence imposed
by the trial court and that which we would have imposed
is therefore
so substantial as to justify interference. In all the circumstances,
an effective sentence of 20 years’ imprisonment
would be more
appropriate.
[121]
As regards Ms Sangweni, in respect of count 2, the minimum sentence
is 15 years’ imprisonment in terms of s 51(2) of
the CLLA. The
court a quo gave no reasons for going beyond that in imposing 18
years’ imprisonment. We are unable to think
of any. Her
involvement appears to have been limited notwithstanding her close
relationship to the principal perpetrator. To our
mind, that
constitutes a substantial and compelling circumstance, justifying a
lesser sentence. Again, comparing her sentence to
the one imposed on
her ‘counterpart’ in
Prinsloo
, a sentence of 12
years’ imprisonment would have been more appropriate. There is
a startling disparity between that sentence
and the one imposed by
the trial court, which justifies interference, and we would reduce it
accordingly.
[122]
We have already found that the conviction of appellants 3, 4, 6 and 9
on count 2 (racketeering) should be set aside. That
must necessarily
affect the sentence. They were sentenced to 15 years’
imprisonment because they were found to have acted
in the furtherance
of Mr Tiry’s criminal enterprise. Those convictions having been
set aside, their convictions are for theft
simpliciter. In all the
circumstances, we consider a sentence of seven years imprisonment on
each count to be appropriate, the
sentences to run concurrently.
[123]
Even though the racketeering count stands, appellants 7 and 8’s
contribution is similarly limited in the overall scheme
of things.
They stand in the same position as the drivers. However, as explained
already, their conviction brings the sentencing
within the purview of
s 51(2) of the CLAA, which enjoins a sentencing court to impose 15
years’ imprisonment, unless substantial
and compelling
circumstances are found. The truth of the matter is that Messrs
Sithole and Nkosi, like the drivers, were a ‘small
fish’.
They stand in stark contrast to even Ms Sangweni, who continuously
and actively abetted Mr Tiry’s criminal enterprise
in exchange
for a lavish lifestyle. We have an unease about imposition of the
prescribed minimum sentence in the circumstances
of the case.
[124]
This court has set out the proper approach in such instances, in
S
v Malgas
.
[19]
At para
22 it was explained:
‘
[T]he greater the
sense of unease a court feels about the imposition of a prescribed
sentence, the greater its anxiety will be that
it may be perpetrating
an injustice. Once a court reaches the point where unease has
hardened into a conviction that an injustice
will be done, that can
only be because it is satisfied that the circumstances of the
particular case render the prescribed sentence
unjust or, as some
might prefer to put it, disproportionate to the crime, the criminal
and the legitimate needs of society. If
that is the result of a
consideration of the circumstances the court is entitled to
characterise them as substantial and compelling
and such as to
justify the imposition of a lesser sentence.’
[125]
And at para 25I:
‘
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.’
This
approach was endorsed by the Constitutional Court in
S
v Dodo.
[20]
[126]
It is with that approach in mind that we are of the view that the
injustice which would occur with the imposition of the prescribed
minimum sentence of 15 years on appellants 7 and 8, constitutes a
substantial and compelling circumstance. This enables this court
to
impose a sentence which is deemed just and appropriate. Taking into
account all the circumstances, we are of the view that seven
years
imprisonment
on
count 2 and each of the theft counts
will
serve the purpose of sentence, be fair to society and both
Messrs Sithole and Nkosi.
[127]
Before we conclude, we feel constrained to record this concern. The
tracking records show that some drivers were literally
driving from
Durban to Secunda, back again and almost immediately returning with a
fresh load. This, without adequate rest and
breaks. It is not at all
clear how legally permissible that is. These are dangerous vehicles
carrying dangerous cargoes. It is
incumbent on the owners of the
freight tankers to place systems in place to ensure that drivers take
mandatory, adequate, rests
and breaks before they set out on major
journeys.
[128]
The following order is made:
1
The
following appeals succeed and the convictions and sentences are set
aside:
(a) Appellants 1 and 2, Mr Tiry and Ms Sangweni, in
respect of counts 4, 8, 19, 20, 22, 23, 25, 30, 34, 35, 42, 43 and 45
in their
entirety, and in respect of count 33 to the extent that the
conviction of theft is altered to one of attempted theft;
(b) Appellant 3, Mr Tshabalala, in respect of counts 2,
34 and 35;
(c) Appellant 4, Mr Nyamusa, in respect of count 2;
(d) Appellant 6, Mr Buthelezi, in respect of counts 2,
19 and 45;
(e)
Appellant 7, Mr Sithole, in respect of counts 22 and 35;
(f) Appellant 9, Mr Moisi, in respect of count 2.
2 All the other appeals against
conviction are dismissed
and
the judgment of the high court is amended to reflect that Mr Nkosi,
appellant 8, was convicted on counts 14, 31 and 32.
3 Mr Tiry’s appeal against sentence succeeds to
the extent reflected below:
(a) The sentence of 30 years’ imprisonment imposed
on count 1 is set aside and substituted with a sentence of 20 years’
imprisonment;
(b) The sentence of
20 years imprisonment on count 2 is set aside and replaced by a
sentence of 15 years imprisonment to run concurrently
with the
sentence on count 1;
(c) The sentence of
15 years imprisonment on count 33 is set aside and replaced by a
sentence of 3 years imprisonment;
(d) It is ordered that the sentence of 15 years
imprisonment imposed in respect of each of counts 3, 5, 6, 7, 9, 10,
11, 12, 13,
14, 15, 16, 17, 18, 21, 24, 26, 31, 32, 36, 39, 40 and
41, and the 3 years’ imprisonment on count 33, shall run
concurrently
with the sentence of 20 years’ imprisonment
imposed on count 1. The effective sentence is 20 years’
imprisonment.
4 Ms Sangweni’s appeal against sentence succeeds
to the extent set out below:
(a) The sentence of 18 years imprisonment imposed on
count 2 is set aside and replaced by a sentence of 12 years
imprisonment;
(b) The sentence of 15 years imprisonment on count 33 is
set aside and replaced by a sentence of 3 years imprisonment;
(c) It is ordered that the sentence of 15 years’
imprisonment imposed in respect of each of counts 1, 3, 5, 6, 7, 9,
10, 11,
12, 13, 14, 15, 16, 17, 18, 21, 24, 26, 31, 32, 36, 39, 40
and 41, and the 3 years’ imprisonment on count 33, shall run
concurrently.
The effective sentence is 15 years’ imprisonment;
5 The appeals against sentence by appellants 3, 4, 6, 7,
8 and 9 succeed. Their existing sentences on each count on which
their
convictions were upheld are set aside and replaced by sentences
of 7 years imprisonment on each count, all such sentences to run
concurrently. The effective sentence in each case is 7 years
imprisonment.
6 In terms of
s 282
of the
Criminal Procedure Act 51 of
1977
the substituted sentences are antedated to 13 October 2016,
being the date on which the appellants were sentenced.
____________________
M
J D Wallis
Judge
of Appeal
____________________
T
M Makgoka
Judge
of Appeal
APPEARANCES:
For
First, Seventh and
Eighth
Appellants: C van Rooyen
Instructed
by: Mokhomo Attorneys, Bloemfontein
For
Third, Fourth and
Ninth
Appellants: R J Nkhahle (with him M Mazibuko)
Instructed
by: Mokhomo Attorneys, Bloemfontein
For
Respondent: J W Roothman
Instructed
by: Director of Public Prosecutions, Bloemfontein
[1]
This name is an adaptation of
Guarrihoek, the original name of one of the farms forming part of the
property.
[2]
He testified
in Afrikaans and used the word ‘warm’, meaning ‘hot’.
[3]
Consisting of a longitude and
latitude.
[4]
Google Mobile Services.
[5]
Comtech was taken over by Altech
Netstar in 2008 and Mr Pedregal then worked for that company.
[7]
Osman and Another v
Attorney-General, Transvaal
[1998]
ZACC 14
;
1998
(4) SA 1224
(CC); 1998(11) BCLR 1362 (CC);
S
v Boesak
[2000] ZACC
25
;
2001 (1) SA 912
(CC)
[2000] ZACC 25
; ;
2001 (1) BCLR 36
; para 25.
[8]
Dos
Santos and Another v The State
[2010]
ZASCA 73; 2010 (2) SACR 382 (SCA); [2010] 4 All SA 132 (SCA).
[9]
S
v Van Deventer and Another
2012
(2) SACR 263 (WCC).
[10]
PriceWaterhouseCoopers
Inc v National Potato Cooperative and Another
[2015] ZASCA
2
;
[2015] 2 All SA 403
(SCA) paras 78-95.
[11]
The preamble to POCA states
among its purposes as being ‘to introduce measures to combat
organised crime, money laundering
and criminal gang activities; and
‘to prohibit certain activities relating to racketeering
activities.’
[12]
In terms of the definitions in
s
1
of POCA, ‘enterprise’ ‘includes any individual,
partnership, corporation, association, or other juristic person
or
legal entity, and any union or group of individuals associated in
fact, although not a juristic person or legal entity and
‘pattern
of racketeering activity’ means ‘the planned, ongoing,
continuous or repeated participation or involvement
in any offence
referred to in Schedule 1 and includes at least two offences
referred to in Schedule 1, of which one of the offences
occurred
after the commencement of this Act and the last offence occurred
within 10 years (excluding any
[13]
S
v Eyssen
[2008]
ZASCA 97
;
[2009] 1 All SA 32
(SCA);
2009 (1) SACR 406
(SCA) para 5.
[14]
S v Prinsloo and Others
[2015] ZASCA 207;
2016 (2) SACR 25 (SCA).
[15]
A question
posed by the Bench as to whether convictions on both the POCA counts
and the theft charges constituted an improper
splitting of charges
fell away once we were referred to
Dos
Santos v S
[2010]
ZASCA 731
;
2010 (2) SACR 382
(SCA) and
De
Vries v S
[2011]
ZASCA 162; [2012] 1 All SA
13
(SCA).
[16]
S
v Berliner
1967
(2) SA 193
(A) at 200G;
S
v Sadler
[2000] ZASCA 105
;
2000 (1) SACR 331
(SCA);
[2000] 2 All SA 121
(SCA) para 8;
S
v Cwele and Another
[2012] ZASCA 155
;
2013 (1) SACR 478
(SCA);
[2012] 4 All SA 497
(SCA)
para 33
.
[17]
S
v Vilakazi
[2008] ZASCA 87
;
[2008]
4 All SA 396
(SCA);
2009 (1) SACR 552
(SCA);
2012 (6) SA 353
(SCA)
para 58.
[18]
See
S
v Tuhadeleni
and
Others
1969
(1) SA 153
(A) at 189H and
S
v Whitehead
1970 (4) SA 424 (A).
[19]
S
v Malgas
2001
(2) SA 1222
(SCA);
2001 (1) SACR 469
(SCA);
[2001] 3 All SA 220
(SCA) para
[20]
S
v Dodo
[2001]
ZACC 16
;
2001 (3) SA 382
(CC);
2001 (5) BCLR 423
(CC) para 40.