S v Pillay and Others (409/2002) [2003] ZASCA 129; [2007] 1 All SA 11 (SCA) (28 November 2003)

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[2003] ZASCA 129
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S v Pillay and Others (409/2002) [2003] ZASCA 129; [2004] 1 All SA 61 (SCA); [2007] 1 All SA 11 (SCA); 2004 (2) BCLR 158 (SCA); 2004 (2) SACR 419 (SCA) (28 November 2003)

REPUBLIC
OF SOUTH AFRICA
IN
THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
REPORTABLE only in respect of appellant 2 and 3
(accused 10 and 14)
Case number:
409/2002
In the matter
between:
NUGALEN
GOPAL PILLAY
1
st
Appellant
DEVAGIE
RAJNARAIN
2
nd
Appellant
MUNJOO
LUTCHMENARAIN
3
rd
Appellant
CLIVE
RUBENDERAN GOUNDEN
4
th
Appellant
and
THE STATE
Respondent
CORAM
:
MPATI
DP, SCOTT JA and MOTATA AJA
HEARD
:
25
and 26 AUGUST 2003
DELIVERED
:
28
NOVEMBER 2003
Summary: Appeals in respect of
accused 10 and 14 – admissibility of derivative evidence
unconstitutionally abstained.
As to accused 14 – court of
appeal precluded from substituting verdict of guilty on count in
respect of which appellant acquitted
by trial court.
____________________________________________________________
JUDGMENT
MPATI DP et MOTATA
AJA:
[1] The
four appellants were part of a contingent of 19 accused who stood
trial before Galgut DJP and assessors in the Durban and
Coast Local
Division of the High Court. They were all charged with robbery with
aggravating circumstances (count 1), with accused
1 to 8, 12 and 13
also being charged in the alternative to count 1, with contravening
s 18(2)(a) of the Riotous Assemblies Act
17 of 1956 (conspiracy to
commit robbery). Accused 13 to 19 were in addition charged with
money laundering in contravention of
s 28, read with ss 1, 2, 3 and
33 of the Proceeds of Crime Act 76 of 1996 (count 2). These latter
accused were also charged with
contravening s 29 (count 3) and s 30
(count 4) of the same Act.[2] In his address after plea, counsel for
the State informed the
court that the State would seek a conviction
on the main count (count 1) only against accused 1 to 8.
As
to the remaining accused, the State would seek a conviction on the
competent verdict of being accessories after the fact to the
main
count.[3] The four appellants were accused 9, 10, 14 and 7
respectively. We shall, for convenience, refer to them as in
the
court below. Accused 7 was convicted on count 1 and sentenced to 20
years’ imprisonment. Accused 9, 10 and 14 were all
convicted of
being accessories after the fact to robbery. Accused 9 was sentenced
to 5 years’ imprisonment, accused 10 to 5
years’ imprisonment in
terms of s 276(1)(i) of Act 51 of 1977 and accused 14 to 4 years’
imprisonment. Accused 14 was acquitted
on counts 2, 3 and 4.[4] All
four accused were refused leave to appeal against their convictions
and sentences. Accused 9, 10
and 14 are now before us with leave of
this Court. Accused 9 and 10 appeal against their convictions only
while accused 14 appeals
against both her conviction and sentence.
With regard to accused 7 this Court directed that his application for
leave to appeal
against his conviction and sentence, together with
his application for condonation for the late filing of his
application for leave
to appeal, be argued ‘before the Court which
hears the appeals of’ accused 9, 10 and 14. In addition, accused 7
applied for
leave to adduce fresh evidence. That application was
also to be argued together with his application for leave to
appeal.[5] The
charges against the accused (the four appellants and
their co-accused) are a sequel to a robbery that was committed at the
premises
of the company SBV Services (SBV) in Durban during the early
hours of 6 August 1996, when a sum of R31 million was stolen.
SBV is an intermediary between the South African Reserve Bank and
various local commercial banks. Its functions entail the receipt
of
money from the Reserve Bank which it delivers to the various local
commercial banks. It also collects from local banks money
which is
then kept available at its premises for recirculation. If the money
becomes redundant or damaged it is returned to the
Reserve Bank.
A certain Hanujayam Mayadevan
(Mayadevan), who was a sergeant in the South African Police Service
and attached to the Chatsworth
police station, was one of a band of
seven persons who committed the robbery with the assistance of two
SBV’s employees, accused
5 and 6, who were on duty on the night in
question. Some time after the robbery (it appears in September 1998)
Mayadevan was arrested
and detained on an unrelated charge (murder).
While in custody and through encouragement from members of his family
he confessed
his part in the robbery to the investigating officer,
Captain Hall. His confession resulted in extensive investigations by
the
police, which in turn led to the arrest of the 19 accused
ultimately charged before the court below.[6] It goes without saying
that Mayadevan was the main witness for the State, particularly with
regard to the robbery. In considering his evidence the trial
court
found him to be ‘the sort who will lie when it suits him’, that
he was an accomplice with a possible motive to implicate
the accused
and that as such his testimony must be approached with the utmost
care and circumspection. It held that it ‘will
accept his relevant
evidence if it is suitably corroborated by other independent and
acceptable evidence’.[7] Against that background
we now proceed to
consider the appeals of the individual appellants.
ACCUSED
7
[8] According to
Mayadevan, accused 7 was not involved in the robbery, nor in the
planning of it. It is common cause, however,
that accused 7 had
previously been employed by SBV as a protection officer. In that
capacity he accompanied vehicles which delivered
or fetched money
from commercial banks. He worked with Colin Nayager (accused 5) and
Perumal Soobramoney Naidoo (accused 6), who
were his friends, but was
dismissed early in 1996 after he had been involved in an accident
with one of the SBV vehicles. He knew
the inner workings of the SBV
premises, more especially the treasury room, where the money was
stored.
[9] After his dismissal from SBV, accused 7 offered his
services as a firearm instructor to a firearms business in
Silverglen, Chatsworth.
He converted one of two rooms on the ground
floor of the building, where the firearms business was situated, into
a shooting range
and the other into a lecture room. This process,
according to accused 7, took approximately three months to complete,
whereafter
he commenced lecturing and giving instructions in the use
of firearms.
[10] Accused 7 is
implicated in the robbery by three state witnesses, namely, Samuel
Anthony Naidoo, a 17 year old young man at
the time of the trial
(Naidoo), Andile Dominique Tiyo (Tiyo) and Ramesh Persadh (Persadh).
Naidoo, who was described by the court
a
quo
as a
‘particularly unintelligent and inarticulate young man’,
testified that he first met accused 7 early in 1996 and was
thereafter employed by him at the shooting range, where he did menial
tasks. His version was that on a certain day in July 1996
he saw
accused 5, 6 and 7 enter the lecture room. He became curious and
went to sit on the stairs outside the lecture room, from
where he
eavesdropped on them through a slightly opened window. He saw and
over-heard them discuss a sketch plan of the SBV premises
and plan a
robbery.
[11] Naidoo testified further that on 6 August 1996 he
heard, over the news, that SBV had been robbed. Later that same
evening,
he said (he later said in the late afternoon), he received a
telephone call from accused 7, who summoned him to the shooting
range.
On his arrival at the shooting range he noticed two vehicles
parked there, one being that of accused 7. The other belonged to

accused 6. Accused 5 and 6 were also present. Accused 7 made him
carry four black bin bags out of the boot of his vehicle and
into the
target shooting room. Accused 7 gave him a spade and instructed him
to dig a hole and bury the bin bags in the sand
between the back wall
of the target shooting room and a stack of motor vehicle tyres. He
had to climb over the tyres in order
to dig the hole. In that
process he discovered that the bin bags contained bundles of
banknotes in R100 and R50 denominations.
A few weeks or a few days
thereafter he met accused 5 and 6 at the shooting range. They told
him to keep his mouth shut about
the black bags. [12] Tiyo is
unemployed and a self-confessed gangster. He admitted that he had
been involved in a robbery that
took place in May 1998, when R7.4
million was stolen. He was given an indemnity pursuant to his giving
evidence against his accomplices
in that robbery. He also took part,
he said, in discussions on other possible robberies which in fact
never took place. Tiyo testified
that he knows accused 5, 6 and 7,
whom he had all met late in 1997. He was first introduced to accused
6 by someone he referred
to as ‘KK’ and thereafter he met accused
7 at a bus rank. He met accused 5 at Addington Beach, where accused
6 and 7 were
also present. On several occasions thereafter he met
the three accused ‘in the vicinity of Addington Beach’, and in a
beachfront
flat owned by a person named Derrick. He testified that
with the exception of accused 7 the other two accused were his
friends.
At one meeting at Derrick’s flat accused 6 told him that
on the day of the robbery he was in the control room at SBV and
opened
the electronically controlled mechanism so that the robbers
could gain entry. Accused 7 told him that he (accused 7) and certain

other members of the police at the Chatsworth police station were
involved in the robbery and that his share of the proceeds was
buried
behind tyres in the shooting range. [13] Persadh was 30 years old at
the time of the trial and held the degrees B Iuris
and Bachelor of
Laws. He testified that he knew accused 5, 6 and 7, whom he had met
at the Majestic Casino in Chatsworth during
December 1997. He used
to frequent the Majestic Casino and consequently befriended accused
5, 6 and 7, who were employed there
as security personnel. At that
time the witness was a candidate attorney in Durban. He testified
that he and accused 5, 6 and
7 sometimes met at the shooting range
where accused 7 was employed. They met every day, sometimes more
than once. In January
1998 he had an opportunity, he said, to
discuss with accused 5 and 6 their roles in the robbery. This
occurred at the foyer of
the Majestic Casino. Accused 6 told him
that he and accused 5 were involved in the robbery. Accused 5 nodded
affirmatively while
accused 7, who was some distance away but within
earshot, never commented on the statement and showed no surprise.
Persadh freely
admitted that he had been involved in the R7.4 million
robbery referred to above, that he was arrested in connection with it
but
after he had made a clean breast of it he agreed to testify
against his accomplices.
[14] The evidence of accused 7 can be summarised as
follows. He admits that he met Naidoo during December 1996 at his
(accused
7’s) sister-in-law’s wedding. Prior to that he had seen
him at accident scenes when he (accused 7) was the driver of a patrol

van for the Chatsworth police station. He offered Naidoo employment
at the shooting range. He testified that the tyres in the
target
shooting room were stacked from the floor right up to roof height.
Behind the tyres were canvas bags filled with sand.
A rubber mat
hung from the roof in front of the tyres. No one, he said, could
thus climb over the tyres and dig a hole in sand
that was contained
in canvas bags. He denies that he ever telephoned and summoned
Naidoo to the shooting range on 6 August 1996,
because he had not
even met him at the time. He denies ever having discussed a robbery
and a plan of the SBV premises with accused
5 and 6 at his desk as
alleged by Naidoo. He said that the window referred to by Naidoo and
through which Naidoo allegedly saw
the plan of the SBV premises could
not even open. A white board on which he (accused 7) wrote down
notes for lectures was fixed
against part of the window, and his desk
was directly below it. Further, the window was painted so as to
avoid the reflection
of the sunlight on the board.
[15] Accused 7 testified further that he met Tiyo when
he (accused 7), as a security officer, assisted in controlling
strikes at
Engen petrol depots and at Clover Dairy, where Tiyo was
one of the leaders of the strike. Tiyo approached him and introduced
himself
as a past student at the shooting range. He denies ever
telling Tiyo that he was involved in the robbery. With regard to
Persadh’s
version accused 7 admits that he was employed on a
part-time basis at the Majestic Casino, but denies that he was
present when
Persadh had a discussion with accused 5 and 6 about the
robbery.
[16] The version of accused 7 regarding the target
shooting room is supported by his witness Rajgopal Naicker, a range
officer with
the South African Practical Shooting Association and an
instructor with the National Firearm Training Association of South
Africa
(NAFTA). As range officer he had the responsibility of
ensuring the safety of people who use firearms at a shooting range.
He
knows accused 7 and through him gave the owners of the shooting
range advice on how to build an indoor shooting range. During 1996

he was asked by NAFTA to inspect the shooting range and observed that
there were sandbags between the brick wall at the back of
the target
shooting room and a stack of tyres that went up to the ceiling. In
front of the tyres was a rubber mat. When confronted
with Naidoo’s
evidence that there was loose sand behind the tyres the witness gave
a perfectly logical answer that if that were
so the loose sand would
have seeped through between the tyres.
[17] Naicker did not produce any written report on his
alleged inspection of the shooting range, an aspect on which the
trial court
criticised him. His evidence, however, was that he
merely had to give his report telephonically. He said that he would
otherwise
not have passed the shooting range if it had not met the
requirements, with which, in this case, he was satisfied.
[18] The trial court correctly, in our view, reasoned
that the evidence of Naidoo could only be accepted if it were
corroborated
by other acceptable evidence. The learned trial judge
found such corroboration in the evidence of Tiyo and Persadh. He
held that
the versions of Naidoo and Tiyo corroborate each other and
that Persadh, whom the court regarded as ‘perfectly reliable’,
corroborates
both. As to Persadh’s evidence, the trial court found
that the fact that accused 7 showed no surprise when accused 6 said
he
and accused 5 were involved in the robbery, was significant
because in his evidence he said that he had never known that accused

5 and 6, who were his friends, had been involved in the robbery. He
freely admitted, so the trial court said, that had he heard
what
accused 6 was alleged to have said, he would have been extremely
surprised.
[19] We do not agree with the trial court’s conclusion
regarding Persadh’s evidence. We are prepared to accept, in spite
of
his denial, that accused 7 was present and within earshot when the
discussion between Persadh and accused 6 took place. But, that
he
was involved in the robbery is not the only reasonable inference that
can be drawn from his lack of response to the discussion,
in our
view. He may very well not have been interested in what was being
discussed and may not have heard the essence of the discussion.
In
any event, on Persadh’s own version accused 6 did not mention that
accused 7 was also involved in the robbery. Secondly,
Persadh did
not mention the name of accused 7 in his statement to the police. In
our view, the trial court erred in its finding
that there was
corroboration for Naidoo and Tiyo in Persadh’s evidence, at least
in so far as accused 7 is concerned. [20]
With regard to
Naicker’s evidence the trial Court said the following:
‘
While Naicker has not been shown to be lying, we find
it difficult to believe that Naidoo would lie in regard to the
burying of
the money, because he would have known that it was
impossible to have buried the money and that his lie would inevitably
have been
found out. The probability, so it seems to us, is that
Naicker is wrong in what he says, and in this regard, it is
significant
that not a single written record of his inspection was
made when he allegedly reported to the body that allegedly instructed
him
to do the inspection.’
It is clear, from this, that the reason for the trial
court’s finding that Naicker’s evidence was wrong was that it
believed
that Naidoo could not have lied about the fact of burying
the money where he alleged he did. In our view, Naidoo’s version
is
improbable for the following reasons. The evidence reveals that
at the time that he was supposed to be at the shooting range on

Naidoo’s version accused 5 was being interrogated at the SBV
premises and was later taken to hospital. It is also quite clear

from the evidence that the money taken from the robbery had not as
yet been divided by the time when Naidoo was supposedly asked
by
accused 7 to bury bin bags containing the money in the sand at the
shooting range. In his statement Naidoo did not mention
that accused
5 and 6 were present when he was made to bury the money as he
alleges. There is, in our view, no good reason to prefer
the
evidence of Naidoo to that of Naicker on the question of how the
shooting range was built. There is no basis upon which Naicker’s

evidence could be rejected. And on his version Naidoo could not have
buried the money where he says he did.
[21] There are other
aspects which, in our view, seriously affect the veracity of Naidoo’s
version. He testified that subsequent
to his making a statement to
the police after the arrest of accused 7 in January 1998, he was
placed in a witness protection programme
in Port Elizabeth from which
he later escaped because, he said, he was lonely and feared for his
parents’ safety. At that stage
accused 7 was in police custody.
On his way to Durban from Port Elizabeth Naidoo telephoned accused
7’s wife at least twice.
Upon his arrival in Durban he spent three
hours at his home and was thereafter picked up in the street by
accused 7’s wife,
who was in the company of accused 7’s two
brothers. It is clear that this would have been arranged with him
beforehand. He
was placed in a hotel and the next morning he was
taken to the Independent Complaints Directorate, where he retracted
the statement
he had made to the police. Accused 7’s wife
thereafter took him to an attorney where he made a further statement
in which he
said,
inter
alia
, that he had
been assaulted by a Captain Martin Hall and Tony Govindsamy and thus
forced to implicate accused 7. Naidoo could
not proffer any reason
why he telephoned accused 7’s house upon escaping from the witness
protection programme instead of contacting
his family. He did not
attempt to escape from the hotel where he had been placed so as to
report to the police on what had happened
to him. There is no
evidence that he was guarded while he was at the hotel. He testified
that he had been threatened and was
forced by members of accused 7’s
family to retract the initial statement he had made to the police.
He could not explain, however,
why he did not tell his family about
this. He admitted that what was contained in the statement that he
made to the attorney was
a version that he had simply made up; no
one had told him what to say. He said that reference to the R7.4
million robbery in
his statement was also made up.
[22] In view of the
foregoing, there can be no justification for rejecting the evidence
of the defence as false beyond a reasonable
doubt. It cannot be
held, as the trial court did, that the versions of Naidoo and Tiyo
corroborate each other. It is so that
accused 7 was an unimpressive
witness, whose evidence was replete with discrepancies and
inconsistencies. But as to how the shooting
range was built, he has
support from Naicker, whose evidence, as has been mentioned, cannot
be rejected. No money was found on
accused 7, nor was there any
evidence to show that his estate had improved after the robbery. Of
itself this is not determinative
of the guilt or otherwise of accused
7, but it is a factor to be considered with all other factors. In
our view, his appeal must
succeed.
ACCUSED 9
[23] Accused 9 (the first appellant) is an attorney,
who, at the time of the trial, had practised in Chatsworth for 12
years. Before
that he had been a prosecutor in the Magistrates’
Court for 2 years whereafter he did articles of clerkship for a
further 2
years.
[24] The evidence shows that accused 9 and Mayadevan
knew each other before the robbery of SBV, the relationship,
according to accused
9, being purely work related. He knew Mayadevan
as a policeman attached to the Chatsworth police station. It is not
in dispute
that a few months after the robbery accused 9 facilitated
the purchase, by Mayadevan, of a night club in Chatsworth (the
Embassy
Night Club) for a cash purchase price in excess of R1 000
000,00. The State’s case was that accused 9 knew that the funds
with
which the night club was purchased formed part of the money
taken in the robbery. The issue in the appeal of accused 9, then, is

whether, by facilitating the laundering of illegally obtained funds
by means of the purchase of the embassy Night Club accused
9 assisted
the purchasers to evade justice, thereby making himself guilty as an
accessory after the fact to robbery.
[25] Apart from Mayadevan the State called as witnesses
in substantiation of its case Sivanathan Chetty, Julian Kasaval and
Selvan
Thambarin, who are all members of the close corporation that
owned the Embassy Night Club prior to the sale. The other members

were Manogaran Padayachee, Anesh Yegi and Leo Pillay, who held shares
on behalf of Subramoney Naidoo, known as Gonnie.
[26] Mayadevan testified that a few weeks after the
robbery he fortuitously met accused 9 at the Chatworth Magistrates’
Court.
Accused 9 asked him if he had been involved in the SBV
robbery, to which he answered affirmatively. About a month later he
again
met accused 9 at the Chatsworth Magistrates’ Court and
accused 9 asked him if he was interested in purchasing the Embassy
Night
Club. When the witness showed interest in the proposition
accused 9 undertook to facilitate the sale. It is common cause that

on the night of 20 February 1997 (a Thursday) a meeting took place at
the Embassy Night Club between Mayadevan, with accused 9
acting as
his attorney, and the six members of the close corporation.
[27] Sivanathan Chetty (Chetty) testified that he had
decided during December 1996 to sell his 20% interest in the close
corporation,
and spread the word of his intentions. In the middle of
February 1997 he was contacted by accused 9 who informed him that he
(accused
9) had a buyer for the Embassy for R1 000 000,00. Accused 9
did not disclose the identity of the purchaser. Chetty thereafter

spoke to the other members of the close corporation, who expressed an
interest in selling the business. The members, however,
could not
reach consensus on the purchase price, the reason being that they had
purchased equipment from a another nightclub, the
Silver Slipper, in
Chatsworth and owed R200 000,00 on the equipment. The owners of the
Silver Slipper were Subramoney Naidoo,
Monogaran Padayachee and
accused 9.
[28]
With
regard to the meeting of 20 February 1997, Chetty’s version is that
the parties could not agree on the purchase price.
Consequently,
Mayadevan consulted three males who were in the pool room with whom
he had arrived. He returned and said his mandate
was to purchase the
business for R1 000 000,00. In his evidence, however,
Mayadevan denied that he had arrived at the
embassy with others.
[29] It appears that both sides considered
that an agreement could be reached and arranged to meet at the Club
on Friday night,
21 February 1997. At this meeting an agreement was
reached as to the purchase price, the deposit payable and the
balance to be
payable in three instalments. There was some
difference as to the agreed purchase price, but Chetty and Mayadevan
both said the
price agreed upon was R1,3 million. However, it was
agreed that the deposit would be R600 000,00.
[30] Chetty and Julian Kasaval (Kasaval) testified that
after agreement was reached on the purchase price and ancillary
issues,
accused 9 produced a typed purchase and sale agreement dated
21 February 1997 (exhibit ‘Q1’) to which was attached a typed
authorisation (exhibit ‘Q2’), in terms of which all the members
of the close corporation would, on appending their signatures,
give
Chetty the power to sign the agreement on their behalf.
[31] The agreement contained three unsatisfactory
aspects, viz:
(i) the purchase price was reflected as R250 000,00.
The deposit was R50 000,00 with the balance to be paid in
monthly instalments
of R50 000,00 each;
(ii) the identity of the purchaser was left in blank;
and
(iii) clause 5.1 of the agreement provided that the sale
included a liquor licence, whereas the liquor licence had been
applied
for but not yet granted.
As to the first, Kasaval said accused 9 gave the
assurance that the price did not matter because the sellers would be
paid the
full amount agreed upon. Even though in his evidence Chetty
said the price would be sorted out later, when queried about the
second
point, he said the purchaser wished to remain anonymous.
Kasaval testified that accused 9 said the name of the purchaser was
not
necessary and that his (accused 9's) own name could be used.
Thereafter, according to Chetty, accused 9 altered the small errors

in the document in his own handwriting. Exhibit ‘Q2’ was signed
by all the members, except Naidoo. The agreement (‘Q1’)
was
signed by Chetty on behalf of all the sellers. He also initialled
each page as well as each of the alterations.
[32] From the evidence it is apparent that exhibit ‘Q1’
was intended to be the final agreement. Chetty testified that this

was indeed the final document, but when cross-examined he conceded
that he might have signed some other sale agreement when he
went to
accused 9's office the next day. Chetty was declared a hostile
witness because he retracted certain allegations he had
made in his
statement, and also gave contradictory evidence in favour of accused
9. He testified that the sellers, on Friday night,
wanted security
for the balance of the purchase price in the form of an
acknowledgement of debt. Mayadevan offered one but it
was not
accepted; they wanted one by accused 9. Consequently, Mayadevan and
accused 9 conferred privately and accused 9 agreed
to sign the
acknowledgement of debt. This is also confirmed by the other
witness, Selvan Thambarin.
[33] Mayadevan testified further that accused 9 asked
him to provide him with the money to pay the sellers. He apparently
did not
know that a deposit had been agreed upon. Mayadevan believed
that the balance of his share of the robbery money which he had kept

in a flat he had hired was approximately R1 000 000,00. He
telephoned one Nicki Moodley, who had keys to the flat and to
the
briefcase in which the money was kept, and instructed him to take the
money to accused 9. It is not in dispute that Moodley
delivered a
briefcase which contained money to accused 9's office.
[34] It is also not in dispute that on the Saturday the
sellers converged on accused 9's office. Accused 9 arrived after
them and
took a briefcase out of the boot of his car. The briefcase
contained bundles of R50 notes. The money was counted by the sellers

whereafter they divided it amongst themselves. There is no agreement
as to how much the money was. Chetty said it was R500 000,00
and the
other two witnesses said it was R400 000,00. In any event it was not
R600 000,00, which was the required deposit. The
evidence was that
accused 9 explained that he could do nothing more because that was
all he had received.
[35] It is common cause or at least not in dispute that
on that Saturday accused 9 produced a typed acknowledgement of debt
(exhibit
‘Q3’), which bore the previous day's date, ie 21
February 1997. It recorded the balance as R700 000,00 which was to
be paid
by accused 9 in instalments of R250 000,00 each on 7
March 1997 and 7 April 1997 and R200 000,00 on 7 May 1997.
Chetty
testified that accused 9 altered exhibit ‘Q3’ in his own
handwriting to reflect the balance as R800 000,00 and changed the
last instalment from R200 000,00 to R300 000,00. He signed it and
handed it to him (Chetty).
[36] Richard Ernest Mayoss (Mayoss) testified as to
accused 9's records and books of account. He is a chartered
accountant with
Deloitte and Touche who had been appointed by the Law
Society to inspected accused 9’s books of account. Earlier, whilst
accused
9 was in Mauritius, the Law Society had inspected his books.
Mayoss examined Accused 9's trust account and the file dealing with

the sale of the Embassy Night Club. He compiled a report (exhibit
‘TTT’) on 21 October 1998 from the data he had gleaned from
the
trust account and the file. On advice he obtained from his advocate,
accused 9 declined to answer questions from Mayoss pertaining
to his
books which called for an explanation.
[37] Mayoss's evidence, and his report (exhibit ‘TTT’),
reflect that in Accused 9's file was a copy of an agreement of sale
of the nightclub business (exhibit ‘UUU’). It was dated 21
February 1997. The agreement was complete. It showed that the

purchaser was one Logan Chetty and the purchase price was R420
000,00, payable in full on or before 28 February 1997. It had been

signed by both Logan Chetty as purchaser and Sivanathan Chetty on
behalf of his co-members in the close corporation. Mayoss's
evidence
and report showed that accused 9 received three payments into his
trust account which he credited to an account entitled
'Embassy Nite
Club'. The receipts showed the following details:
(i) on 20 February 1997, cash in the sum of R249 050,00
from ‘Embassy Nite Club’;
(ii) on 24 February, cash in the sum of R169 850,00 from
‘Club Embassy’ being for fees; and
(iii) on 14 March 1997, cash from 'Embassy' for fees and
disbursements in the sum of R1 200,00. These amounts total R420
000,00.
[38] Mayoss testified that accused 9’s books of
account did not show that any money had been paid in cash to the
sellers on Saturday
morning, 22 February 1997.
[39] Accused 9 denied in evidence that he knew that
Mayadevan had been involved in the robbery. He testified that he met
Mayadevan
by chance at the Magistrates' Court. Mayadevan broached
the subject of the purchase of the Embassy Night Club because he knew
that accused 9 knew certain members of the owner of the club. He
said Mayadevan claimed that he had won a lot of money from gambling,

that he (Mayadevan) and other persons (he did not disclose their
names) were interested in purchasing the Embassy Night Club.
He told
Mayadevan that he would contact Chetty, which he did, but Mayadevan
did nothing further. About one and a half months later
he again met
Mayadevan at the Chatsworth Magistrates' Court and Mayadevan raised
the subject once more. He said he contacted Chetty
using his mobile
phone and the meeting of Thursday night was set up. He told
Mayadevan, he said, that for him to remain involved
he wanted 'a
substantial deposit', for his fees. What he had in mind was
R20 000,00 to R30 000,00. Mayadevan telephoned
him on the
Thursday morning to tell him that he was sending R250 000,00. He
said he assumed that R20 000,00 would be his
deposit and that
the balance would be payment on account of the purchase price. During
the course of the day a man unknown to him,
presumably Moodley,
arrived with cash in a briefcase. He did not count the cash but sent
the man with a staff member to deposit
it into his trust account. He
issued a trust receipt for R250 000,00 to the name of the
Embassy Night Club before the money
was taken to the bank. Later he
was told that the cash amounted to R249 050,00 and he instructed his
staff to alter his copy of
the receipt accordingly. He placed the
receipt in the file opened in the name of Embassy Nite Club.
[40] Accused 9 admitted that he attended the Thursday
night meeting as Mayadevan's attorney. He said he did not know the
three
men consulted by Mayadevan during the negotiations. He agreed
that everything was agreed upon except the purchase price. However,

the parties were confident that when they met on the Friday night,
the price would be settled. It was also agreed, he said, that
the
business would be handed over to the purchasers immediately the
purchase price was agreed upon. He said he was instructed,
in
anticipation of finality being reached, to draft two documents: the
one a draft contract of sale and the other an authority
by members in
favour of Chetty giving him the power to sign the sale agreement on
their behalf.
[41] He drafted the two documents. In regard to the
sale agreement, he said he used a precedent which was stored in his
computer.
The price was agreed at R1,2 million with a deposit of
R500 000,00. He testified that he told the parties that the draft
sale
agreement was nothing more than a draft. Later in the meeting
the documents were handed back to him, signed. The members, with
the
exception of Pillay, signed the authorisation. Chetty signed the
agreement after correcting minor spelling mistakes. On Friday
night
Mayadevan, accused 9 claimed, told him that Logan Chetty was to sign
for the purchasers as a nominee.
[42] Accused 9 testified that Mayadevan said he would
make the deposit of R500 000,00 available on the Saturday morning.
Mayadevan
told him that his personal contribution would be R420
000,00. As accused 9 understood it, the R420 000,00 would be made up
of
the R250 000,00 he had received in trust (less a shortfall of
R950,00) plus a further amount of R170 000,00 (less a shortfall of

R150,00). He said that on the Saturday morning he went to the
Embassy Night Club to collect the money (the club having been handed

over to Mayadevan the previous day as per the agreement). Mayadevan
gave him a briefcase full of cash which he did not count.
He took it
to his office where he met the sellers. He gave the briefcase to the
members to count the money and share it amongst
themselves. Accused
9 said he did not at all times remain in the presence of the sellers
whilst they counted the money. He left
the room at times. He was
told, he said, after the money had been counted that it was only
R150 000,00. He telephoned Mayadevan
and told him of the
shortfall of R100 000,00 and that the sellers wanted an
acknowledgement of debt in respect of the balance.
He said Mayadevan
was surprised and told him that he would bring another R100 000,00
later that day. Mayadevan came to his (accused
9's) office and told
him that he could not raise the R100 000,00. It was agreed with
the sellers that the deposit would be
reduced to R400 000,00. The
balance was therefore R800 000,00.
[43] Accused 9 testified further that it was on Saturday
morning for the first time, but before they knew that the deposit
would
be reduced to R400 000,00, that he and Mayadevan agreed,
and the members of the close corporation accepted, that it would be

accused 9 who would sign the acknowledgment of debt. He testified
that it was only on Saturday that the undertaking was drafted.
When
Mayadevan told him that he could not raise the R100 000,00 the
undertaking was altered by increasing the total from R700
000,00 to
R800 000,00, and the final instalment from R200 000,00 to R300
000,00
[44] Accused 9 explained that on the same Saturday
morning he gave his secretary the draft agreement (exhibit ‘Q1’),
together
with notes he had made dealing with alterations that had to
be made for typing. He said that she produced the document, exhibit

‘UUU’, which was later found in the file by Mayoss. Accused 9
said the reflection of the price as R420 000,00 was a mistake
which
his secretary had made. She had made it, he surmised, because the
same piece of paper on which he had written the necessary

alterations, also recorded Mayadevan's undertaking to provide him
with R420 000,00 and she had mistakenly assumed that the

purchase price was R420 000,00. He said that he told the members
that the price reflected on the draft agreement (exhibit ‘UUU’)

was a mistake, and he instructed his secretary to rectify it. That
was done and the final agreement which reflected the correct
purchase
price as R1,2 million, with a deposit of R400 000,00 and a balance of
R800 000,00 payable in instalments, was then signed.
The original
was signed by Chetty on behalf of the seller, and Logan Chetty as the
purchaser, so accused 9’s evidence proceeded.
[45] Accused 9 said that when Mayadevan and Logan Chetty
left his office that morning, the members then and there shared out
the
R400 000,00 between themselves. The R400 000,00 was made up of
R250 000,00 paid in on Tuesday morning (which was in fact R249
050,00) and R150 000,00 in cash given to him by Mayadevan that
morning. The members distributed the latter amount between
themselves,
but said they would let him know in whose favour, and in
what amounts, he was to make out trust cheques in so far as the R400
000,00
was concerned.
[46] Accused 9 said that on Monday, 24 February 1997,
Mayadevan telephoned him and told him that he was sending R170 000,00
to his
office to make up the R420 000,00 which he had promised to pay
him. Once again an unknown person, but not the same one as before,

arrived at his office with a briefcase full of notes. He did not
count the money, but sent the man with a staff member to the
bank to
deposit it. He made a trust receipt out for R170 000,00 and
indicated that it was for 'fees and disbursements'.
Later that
morning the members arrived at his office and at their insistence he
made out trust cheques to the payees and in the
amounts they
instructed him to do, and that amount of R420 000,00 which he held
for Mayadevan was paid to the members. He said
an agreement was
reached with Mayadevan whereby Mayadevan would pay his fees. When he
received the fees, he said he did not make
a record of it because it
was not received in trust, but as fees already earned.
[47] Accused 9’s evidence was that each and every
payment that was made towards the balance of R800 000,00 still owing
was paid
through him. Each time money was made available the members
would come to his office to fetch it or he would distribute it. He

did not record these as trust payments because he did not receive the
money in the strict sense, but was merely acting as a conduit.
[48] Before accused 9 testified he had already given an
explanation (exhibit 13) to the Law Society dated 13 January 1999 in
respect
of queries raised by it.
[49] The case advanced on behalf of the State was in
essence that accused 9 was aware of the source of the money; that he
knowingly
arranged for the Embassy Night Club to be purchased in such
a manner that there would be no written record of the identity of the

purchaser, Mayadevan, and a deflated price would be reflected in the
agreement of sale, and that he (accused 9) did this with the
object
of concealing Mayadevan's participation or role in the purchase.
Accused 9, on the other hand, testified that he had no
idea that the
money came from the robbery and that it never occurred to him that
the robbery could have been the source of the
funds.
[50] Quite apart from Mayadevan's evidence that he told
accused 9 that he was involved in the robbery when they fortuitously
met
at the Chatsworth Magistrate's Court, the circumstances were such
that from the very beginning accused 9 must have entertained at
least
a suspicion that the money came from the robbery. His evidence that
this never occurred to him cannot be true. In this regard
the
following is not in dispute:
(i) Accused 9 was aware of the SBV robbery on 6 August
1996 (4 months before). It was one of the biggest ever in the
country and
was broadcast on the radio and received wide publicity in
the press.
(ii) He was aware that a policeman from Chatsworth
Police Station had been taken in for questioning. He knew some
policemen very
well.
(iii) He knew of the rumours circulating that the police
stationed at Chatsworth were involved.
(iv) He knew Mayadevan was a policeman stationed at
Chatsworth.
(v) He knew policemen are notoriously badly paid.
(vi) He knew Mayadevan was driving a new Nissan Sani.
(vii) He knew that the purchase price of the Embassy
Night Club would be way beyond the reach of a policeman.
(viii) Thereafter, he participated either directly or
indirectly in a transaction which involved the payment of R1 200
000,00 in
large instalments, all made in cash. (He conceded he was
alive to the danger of allowing his trust account to be used for
purposes
of laundering money.)
[51] The transaction was effected with the assistance
and direction of accused 9 in such a manner that there was at the end
of the
day not a single record of Mayadevan or his 'backers' having
purchased the night club. The suggested reason for the need for
anonymity
could never have justified this, namely that Mayadevan, as
a policeman, was not permitted to engage in private business, and
therefore
until it was clear the deal would go through, he wanted to
remain anonymous. Accused 9 himself conceded that his records were
not available to public scrutiny. The manner in which this anonymity
was maintained requires consideration.
[52] Accused 9 identified three receipts which he said
related to payments made by Mayadevan in respect of the purchase
price and
fees. The first payment was made in cash on Thursday
morning, 20 February 1997 even prior to the first meeting. A trust
receipt
was issued, first in the amount of R250 000,00 and later
altered to R249 050,00.
[53] Accused 9 agreed that it is imperative that the
information on a trust receipt be 100% accurate. Also, it is quite
clear that
in the absence of a more sinister reason, the anonymity
that would have been required by Mayadevan as a policeman would not
have
been such as to preclude him from being issued a receipt in
proper form. The receipt for R249 050,00 was defective in two
respects.
First, it gave the payer's name as 'Embassy Night Club'.
This was false. On Thursday morning not even the first meeting had
been held. The payer was no more than a would-be purchaser of the
Embassy Night Club. Second, the reason for the payment was left

blank. (No proper explanation was advanced or could be advanced.)
The second receipt, dated 24 February 1997 for R169 850,00
similarly
stated the payer to be 'Club Embassy' but falsely stated the payment
to be in respect of 'fees'. The subsequent receipt
for R1 200,00,
dated 14 March 1997, similarly states the payment to have been for
fees. (Accused 9 tried to blame his staff, but
only he could have
instructed his staff to write what they did).
[54] Accused 9 said his fee in the sum of R20 000,00 was
paid in cash. No entry was found in the books of the accused
recording
the payment to have been made by Mayadevan. The file
relating to the transaction was opened in the name of Embassy Night
Club,
but it was opened before accused 9's client had acquired the
business.
[55] The payment of the instalments was not
simply left to the parties, nor was payment made through accused 9 in
the normal way,
ie by way of a payment into a trust account and
thereafter payment to the sellers. Instead, a bizarre procedure was
adopted which
involved the money being brought to accused 9's office
in cash
and then
counted by, and divided up amongst, the sellers. Accused 9 issued no
receipt to Mayadevan (the payer) but required the
sellers to sign
'acknowledgements of receipt'.
[56] It is common cause that the agreement
of sale made no reference to Mayadevan (we shall deal with this
later) as purchaser.
In one of the agreements referred to below the
purchaser was named as Logan Chetty. According to accused 9, this
was at the insistence
of Mayadevan. But this was not put to
Mayadevan in cross-examination. There would also have been no reason
for it. Mayadevan,
according to accused 9, was the spokesman; he
had negotiated the sale. In the absence of some undisclosed motive,
there was no
reason for him not to have been the nominated purchaser.
(We interpose that Mayadevan's version is that he paid a deposit of
R500
000,00. It was never put to him in cross-examination that he
had paid R249 050,00, R169 850,00 and a further R1 200 to make

up the shortfall).
[57] We now come to the agreement of sale. The evidence
of the state witnesses was that there was one agreement which was
signed
by Sivanathan Chetty on behalf of the sellers on Friday, 21
February 1997 (Exhibit ‘Q1’). The price reflected as R250 000,00

and the purchaser was unidentified. The sellers were told by accused
9 not to worry about the price stated in the agreement and
that they
would be paid the agreed price. Sivanathan Chetty said accused 9
told them that he would 'sort it out' while Kasaval
testified that
accused 9 said it was not necessary for them to know the identity of
the purchaser.
[58] Accused 9's evidence was that exhibit
‘Q1’ was merely a draft. He received some support for this from
Sivanathan Chetty
in the latter's cross-examination. Having
testified in chief that he considered exhibit ‘Q1’ to have been
the final document
he conceded in cross-examination that he may have
signed some other document of sale the next day and that exhibit ‘Q1’
may
have been a draft. The court
a quo
characterised this piece of evidence as being 'doubtless untrue' and
observed Sivanathan Chetty to have been either afraid to contradict

accused 9 or to have been well-disposed towards him. In the event,
Sivanathan Chetty was declared a hostile witness and we can
see no
reason for differing from the trial court's finding. The document
(exhibit ‘Q3’) signed by the members authorising
Chetty to sign
on their behalf, moreover, did not authorise him to sign any
agreement but the ‘agreement attached hereto’,
viz exhibit ‘Q1’.
[59] The State's version is in any event
supported by a number of factors which could not be controverted.
Exhibit ‘Q1’ was
signed by Sivanathan Chetty who, in addition,
initialled every page and every alteration. He must have gone
through the agreement
with some care; minor spelling mistakes were
corrected and initialled. In our view he would not have failed to
observe that the
price was wrongly reflected, but nonetheless did not
correct it or cause it to be corrected as in the case of other errors
in the
agreement. Had there been no agreement to reflect a
'deflated' price in the agreement he would certainly have done so.
If exhibit
‘Q1’ was intended as a mere draft, there would have
been no reason for any price at all to be inserted. Moreover,
exhibit
‘Q1’ was the agreement which Kasaval, one of the members,
retained in his possession for a period of about three years. It
is
unlikely that he would have done so had it been a draft.
[60] The failure of the agreement to reflect the true
(higher) price and the identity of the purchaser is obviously
consistent with
an attempt to exclude any reference to Mayadevan and
to conceal the large amount of money involved. But the agreement
could not
have prevailed as a subterfuge, at least as far as the
price was concerned. The reason is that in the event of an audit the
receipts
of money would not be able to be reconciled with the
purchase price of R250 000,00. The receipts in question are those
referred
to above.
[61] But, as we have said, accused 9's version was that
Q1 was a draft only. He said that on Saturday morning, 22 February
1997
another draft, intended to be the final agreement, was prepared
and signed by Sivanathan Chetty, as seller, and by Logan Chetty
whom,
he said, Mayadevan had proposed as a nominee purchaser. His version
was that after this agreement had been read through
and signed by
both parties (who initialled the errors) he, accused 9, spotted that
the purchase price had been wrongly stated to
be R420 000,00 and to
be payable by 28 February 1997. How the parties could have missed
this important error is a question to
which we shall return later.
Significantly the R420 000,00 approximated the total of the amounts
reflected in accused 9's books
as having been received. Accused 9
said he immediately instructed his secretary to prepare a fresh
agreement reflecting the price
of R1 200 000,00,
which was duly signed. A copy of the agreement reflecting a price of
R420 000,00 was found
by the Law Society when it inspected accused
9's books which were given to Mr Mayoss, an accountant appointed by
the Law Society.
It was handed in as exhibit 'UUU'. The further
agreement was never produced.
[62] Accused 9's explanation for the mistake was the
following. He said that in the course of the meeting on Friday, 21
February
1997, Mayadevan told him that his contribution would be R420
000,00 and he would pay the balance before 28 February 1997. Accused

9 said that at the time he was making notes and recorded 'R420 000,00
before 28 February 1997', together with other information.
The next
day he instructed his secretary to prepare a final agreement for
signature (exhibit ‘Q1’ being the first draft).
He told her what
the deposit was to be, ie R500 000,00 and instructed her to take
the information requesting the payment
of instalments from a draft
undertaking that had been prepared. He also gave her his notes. He
said he could only conclude that
that is how she came to type the
purchase price as R420 000,00 (ie less than the amount he had told
her would be the deposit) which
was to be paid on or before 28
February 1997.
[63] No doubt errors occur in typed documents as a
result of misunderstandings or inadvertence. But it is wholly
improbable that
the purchase price of R420 000,00 was inserted in
exhibit 'UUU' in consequence of such an error. In the first place,
it is difficult
to appreciate why Mayadevan should have been at pains
to point out to accused 9 what his particular contribution was to be
and
to undertake to pay it to accused 9 in a manner that was
inconsistent with the instalments provided for in the agreement and
the
undertaking which accused 9 subsequently signed. This
information would have been of no relevance to accused 9. Indeed, he
says
he did not even know who the other purchasers were, let alone
what their particular contributions were to be. It is also
significant
that it was never put to Mayadevan in cross-examination
that his share of the purchase price was R420 000,00. It is a
curious
error for accused 9's secretary to have made, especially
after being told that the deposit was to be R500 000,00 and after
being
handed the written undertaking which made provision for
instalments totalling R800 000,00.
[64] But most improbable of all is the failure of the
parties signing the agreement, ie Logan Chetty and Sivanathan Chetty,
to have
noticed such a glaring error in perhaps the most important
provision of all in the agreement. On the face of it both
initialled
each page and a number of what can be described as minute
errors eg 'os' for 'of' and the misspelling of the word 'specific'.
The third page differs from the others in that the spacing is such
that the upper half of the page contains only five lines. The
price,
both in words and figures stands alone so that it cannot be missed.
And yet, said accused 9, this is what the signatories
did. What is
more, they failed to spot the error and correct it when the main
purpose of the new draft was to rectify the error
in exhibit ‘Q1’
with regard to the price. In our view, this is so improbable as to
justify the conclusion that it did not
happen.
[65] In his report dated 21 October 1998, Mr Mayoss
noted that he could not reconcile the price of R420 000,00 reflected
in exhibit
'UUU' with the deposits and payments reflected in accused
9's books and requested an explanation from accused 9. This was not
forthcoming until 13 January 1999 when accused 9 finally submitted a
written explanation to the Law Society. Given his evidence
as to the
mistake and how it occurred, one would imagine that when asked for an
explanation, accused 9 would have immediately pointed
out that the
figure of R420 000,00 was an error and would have explained how it
came about. But this is not what he did. In his
letter to the Law
Society he confirmed that the purchase price had been R420 000,00 and
then proceeded to reconcile this amount
with the receipts for R249
050,00, R169 850,00 and R1 200,00, pointing out that the additional
R100,00 was a part payment for his
fees. The letter also added,
ambiguously, that the 'balance due in respect of the purchase price
appears to have been settled
between the sellers and the purchaser'.
In his evidence accused 9 said that his reference to R420 000,00 was
yet another mistake
and that this was apparent from the words quoted.
These do indeed imply that more was paid by the purchasers than the
sum of the
amounts reflected on the receipts. Nonetheless, what is
unexplained is the attempt to reconcile the R420 000,00 with the
receipts
and it is difficult to imagine that accused 9 could have
performed this exercise without realising that the figure of R420
000,00
was incorrect.
[66] As previously observed, it is
therefore wholly improbable that the agreement, exhibit 'UUU' came to
reflect a purchase price
of R420 000,00 in the circumstances outlined
by accused 9. If, for no other reason, this is so because the
parties could not have
signed exhibit 'UUU' without being aware of
the error. There are two possibilities that arise from this. The
one is that the
parties to the agreement signed it knowing that the
price reflected was not the true purchase price. In other words,
exhibit 'UUU'
was signed on the
same
basis as Sivanathan Chetty and Kasaval say that exhibit ‘Q1’ was
signed. In that event, of course, exhibit 'UUU' would be
no
different from exhibit ‘Q1’ in its attempt to conceal the extent
of the money involved. The only difference would be that
the amount
of R420 000,00 could be reconciled with the receipts that had been
issued by accused 9.
[67] The other possibility, and the one
favoured by counsel for the State, is that exhibit 'UUU' is a
photostat of an agreement
subsequently 'manufactured' by accused 9
from exhibit ‘Q1’ in order to reflect a purchase price
reconcilable with the receipts
referred to. It was contended that
the only new pages of exhibit 'UUU' are the first page, setting forth
the names of the parties,
and the third page, on which the purchase
price is recorded. As to the other pages, they are identical to
exhibit ‘Q1’, says
counsel, save that they have been initialled
or signed by the 'purchaser', Logan Chetty, and then photostatted to
give the appearance
that the original was signed or initialled by
both signatories at the same time. There is much to be said for
counsel's contention.
We have previously remarked on the somewhat
unusual spacing on page 3. In the result all the remaining pages
begin and end with
precisely the same words as in the case of exhibit
‘Q1’. The corrected errors on exhibit ‘Q1’ are repeated on
exhibit
'UUU'. The latter agreement is furthermore dated 21 February
1997 (in accused 9's handwriting) and not 22 February 1997 on which

date, according to accused 9, it was signed. Accused 9's explanation
that it was backdated because 21 February 1997 was the effective

date, is not persuasive. The agreement could, for instance, have
stated that the effective date was 21 February 1997. It is,
however,
unnecessary to decide which of the two possibilities is the correct
one. In either event accused 9 would have been party
to an attempt
to conceal the true purchase price and indeed the identity of the
purchaser who, but for the robbery, would have
been a man of little
means.
[68] As far as the alleged third and final
agreement is concerned, the inference that it did not exist is
overwhelming. In the
first place, it was never produced. If it had
been drafted and signed by both parties on Saturday 22 February 1997
as accused
9 says it was, the obvious thing would have been for
accused 9 to make and keep a copy. It would hardly have taken a
minute and
accused 9 would have been entitled to charge for doing so.
His explanation that he was too busy is hardly plausible. But in
any
event the existence of the third agreement is dependent on the
acceptance of accused 9's evidence that the purchase price of
R420 000,00
reflected in exhibit 'UUU' was a mistake the
signatories failed to observe before signing the agreement. As we
have said, his version
is so improbable that it cannot be accepted.
[69] Finally, it is necessary to refer to
an undertaking signed by accused 9. Fundamental to his version was
that at all times
his role was no more than that of an attorney
acting on behalf of Mayadevan in the ordinary course of his practice;
in other words
that his interest in the transaction was no more than
that of a disinterested attorney. However, at the request of the
sellers
he signed an acknowledgement of debt personally guaranteeing
the payment of the balance of the purchase price in the very
substantial
amount of R800 000,00. An obvious inference that arises
is that he must have been extremely confident that the money would be
forthcoming which, given Mayadevan's initial failure to come up with
the agreed deposit, suggests that accused 9 was aware of its
source.
[70] The explanation given by accused 9 was that he had
agreed with Mayadevan that in the event of him having to pay the R800
000,00
or any part of it, he could take over the night club and that,
said accused 9, was a very attractive proposition. The effect of

this agreement was, of course, that if accused 9 was called upon to
pay the R800 000,00 or any portion of it, Mayadevan and his

co-purchasers would in effect forfeit their entire contribution. But
accused 9's version was that he had no knowledge of the identity
of
the other co-purchasers, let alone whether they had authorised
Mayadevan to enter into such a far-reaching agreement with him
or
not. If this were the case, it is most improbable that accused 9
would have given such an undertaking or entered into the alleged

agreement with Mayadevan unless he knew a great deal more about where
the money was going to come from than he would have the trial
court
believe. In all the circumstances we are satisfied that the case
against accused 9 was proved beyond reasonable doubt.
His appeal
must accordingly fail.
ACCUSED 10
[71] At
the time of the robbery accused 10 lived with her husband, accused 11
(they divorced in September 1996), and their two children
aged 19 and
21 years respectively, in a house at Sea Cow Lake, Durban, where she
was the tenant. It is common cause that two weeks
after the robbery,
on 22 August 1996, a number of policemen entered her house and, with
her co-operation, retrieved from the ceiling,
6 bin bags and a
canvass kitbag containing bank notes amounting in total to just over
R5 million. It is not in dispute that the
money came from the
robbery. It had been brought to her home during the previous evening
by one Rajan Naidoo after a family friend,
Yegan Naidoo, had made
telephonic arrangements with her. Yegan Naidoo, according to
Mayadevan was one of the seven persons who
committed the robbery.
Accused 10 testified, however, that she did not know that Yegan
Naidoo had been involved in the robbery
and that she thus had not
known that the money came from the robbery. Her testimony in this
regard, and indeed on many other aspects,
was rejected by the trial
court as false beyond a reasonable doubt. Hence her conviction as an
accessory after the fact to robbery.[72]
The finding that accused
10 knew that the money found in her house came from the robbery was
not challenged on appeal, correctly
so in our view. Accused 10 was a
poor witness. Mr Naidu, who appeared on her behalf, advanced two
main submissions before us.
The first was based on an alleged
undertaking given by the Deputy Director of Public Prosecutions not
to prosecute accused 10
and members of her family in the event of any
one of them testifying in the trial of Rajan and Yegan Naidoo, who
were charged with
the SBV robbery following their arrest after the
finding of the money in her house. The factual background is the
following.
When the State was about to adduce evidence against
accused 10 her legal representative and that of accused 11 applied
for the
discharge of the two accused on grounds of the alleged
undertaking. The State and the defence then placed before the trial
court
a statement of agreed facts relating to the issue and asked the
court to adjudicate thereon, the defence arguing that the State

should be held to its undertaking. The statement of agreed facts
reads:
‘1. The State
seeks to lead evidence pertaining to the alleged recovery of cash
from
the house of Accused nos. 10 and 11 on Thursday, 22
August 1996. For the purpose of the inside trial pertaining to the
admissibility
of such evidence, it has been agreed between the State
and Accused Nos. 10 and 11 that the following facts are common cause:
1.1 On the evening of 22 August 1996, the police
penetrated the house of Mrs and Mr Rajnarain, Accused 10 and 11,
respectively,
and their family in search of cash believed to be
linked to the R31 million SBV robbery.
1.2 During the course of the search of the house, Supt.
Havenga informed Accused No. 10 that it was the intention of the
police
that Accused No. 10 and her family would not be arrested but
would be used as State witnesses.
1.3 Accused Nos. 10 and 11 and their two children,
Trevor and Tracy were subsequently taken to the police station where
they each
deposed to a “witness statement”.
1.4 The two Accused and their children were all
subpoenaed as State witnesses in the trial of Rajan and Loghandheran
Naidoo which
commenced in June 1997.
1.5 Prior to the commencement of the trial, the two
Accused informed the Deputy Attorney-General, Advocate Gey van
Pittius S.C.,
that certain portions of their witness statements were
factually incorrect. Through their Counsel, Advocate Y Moodley S.C,
they
presented the Deputy Attorney-General with a memorandum setting
out their versions of what had transpired.
1.6 It was agreed between the Deputy Attorney-General
and the legal representatives of the Accused that, provided one or
more of
Accused Nos. 10 and 11 and their two children were to testify
in accordance with the versions set out in their witness statements,

as amended by the abovesaid memorandum, they would not subsequently
be prosecuted in connection with this case, notwithstanding
the
possibility that the Court in the abovementioned matter might refuse
to indemnify any of those of them who testify in terms
of Section 204
of Act 51 of 1977, because of the discrepancies between their
original statements and their anticipated evidence.
The number of
the abovesaid members of the Rajnarain family to be called to testify
was a matter solely within the discretion
of the Attorney-General.
1.7 After the Court in the abovementioned case ruled
against the State in the inside trial relating to the admissibility
of evidence
pertaining to phone taps, the State closed its case.
Consequently neither of the two Accused nor either of their two
children
was ever called as State witness at that trial.
1.8 It may be accepted in favour of the two Accused that
they were willing to testify and had they been called as witnesses,
would
have given evidence in accordance with the agreed facts.’
[73] While admitting the undertaking, the
State argued that it was entitled to prosecute the two accused. As
can be seen from the
statement of agreed facts, the undertaking was
conditional upon accused 10 or any one of her family members giving
evidence in
the trial of Rajan and Yegan Naidoo. None was called as
a witness although accused 10 and 11 were available and willing to
testify.
The trial court found that on the stated facts there was no
obligation on the State to call the two accused or their children as

witnesses and that by not calling any of them it ‘did not breach
the agreement’. The court found it unnecessary to go into
the
question whether or not the accused’s right to a fair trial had
been violated.[74] It was argued before this Court that the
trial
court’s approach constituted a misdirection in that the fairness or
otherwise of the trial was not solely a question whether
or not a
contract had been breached. The trial of accused 10 can only be
regarded as having been fair if it was fair to try her
in the first
place, so the argument proceeded. The conduct of the police and the
nature of the agreement concluded between accused
10 and members of
her family on the one hand and the Deputy Director of Public
Prosecutions on the other had the effect that (a)
the right of
accused 10 not to make incriminating statements against herself was
consciously and deliberately surrendered by her
and (b) her right to
be presumed innocent was compromised. The position on this issue has
been that the State is entitled, in
principle, to later prosecute a
person whom it had treated at first as a witness. But this Court
said the following in
S v Coetzee
1990 (2) SACR 534
(A) at 541 c-d:
‘Sodanige
optrede hou egter inherent sekere gevare vir ‘n beskuldigde in, en
wanneer die Staat so optree moet daar natuurlik
sorg gedra word dat
die beskuldigde, wat voorheen ‘n potensiële getuie was, nie
onbillik benadeel word deur sy rolverandering
nie. So, bv om ‘n
uiterste voorbeeld te gebruik, as hy beïnvloed was om ‘n
verklaring te maak deur ‘n belofte dat hy nie
aangekla sou word nie
maar as getuie gebruik sou word, sal so ‘n verklaring nie later as
getuienis teen hom toelaatbaar wees
nie.’
The
State, in the case of accused 10, did not seek to introduce any
statement made by her and we are consequently not persuaded
that the
trial court misdirected itself in dismissing the application for the
discharge of accused 10 and 11 on the grounds that
it did. [75] A
further issue, however, which is the second argument advanced by Mr
Naidu, is the admissibility of the evidence
of the finding, by the
police, of the stolen money in the ceiling of the home of accused 10.
We proceed to consider that aspect.
[76] When the State sought to
introduce, as evidence against accused 10 and 11, the evidence of the
fact that money was found
in accused 10’s house (the impugned
evidence), their legal representatives objected on the grounds that
such evidence was inadmissible.
The trial court accordingly embarked
on a trial-within-a-trial to determine the issue. Two bases were
raised in support of the
objection. The first was that the police
had gained knowledge of the fact that the money was possibly in the
house of accused
10 by means of having illegally monitored telephone
conversations of accused 10. Her telephone had been ‘tapped’ on
the authority
of a court order or direction obtained in terms of s
2(2) the Interception and Monitoring Prohibition Act 127 of 1992.
Such direction
was obtained by a Captain Van der Vyver of the
Priority Crime Unit, who had been asked to assist in the
investigations. Because
of the magnitude of the case, the
investigating officer, Captain Neville Barnard Eva (Eva), had
enlisted the assistance of members
of the police attached to various
units. The investigations had revealed that cellphones had been used
in the area of the SBV
premises during or around the time of the
robbery. Following upon the securing of information pertaining to
telephone numbers
contacted through the cellphones before, during or
after the robbery, Captain Van der Vyver applied for an order that
certain telephone
lines be monitored.
[77] The State accepted that the order
granting permission to the police to monitor the telephone
conversations of accused 10 was
obtained on false information
contained in the affidavit in support of the application for such
order and that therefore the order
concerned had been illegally
sought and obtained. The subsequent acts of monitoring by the police
had thus been illegal. The
trial court accepted that the illegal
monitoring of the telephone conversations of accused 10 was in breach
of accused 10 and 11’s
right to privacy, but held that excluding
the evidence concerned would bring the administration of justice into
disrepute (s 35(5)
of the Constitution Act 108 of 1996) (the
Constitution).[78] Before us it was submitted that the police would
not have found the
money had they not unlawfully monitored the
telephone conversations of accused 10. It was argued further that
the degree to which
her rights (to privacy) were breached far
outweighs her complicity in the offence. The case of accused 10 is
distinguishable from
that of Rajan and Yegan Naidoo, who were
acquitted following the refusal by McCall J to admit evidence of the
telephone conversations
between Yegan Naidoo and accused 10, by
reason of the fact that the monitoring of the conversations was
unlawful. (Rajan and Yegan
Naidoo were arrested subsequent to the
finding of the money in accused 10’s house and charged with
robbery.) What was found
to be inadmissible in that case was
evidence of what passed between Yegan Naidoo and accused 10, and
which led to the search of
the house of accused 10. By seeking the
admission of the evidence of the conversations, the State intended to
show the association
of the two accused, Rajan and Yegan Naidoo, with
the money found in the house of accused 10. What was sought to be
admitted in
the case of accused 10 in this case is the impugned
evidence of the money, which is real evidence. (We deal with the
concept of
real evidence later in this judgment.) The judgment of
McCall J is reported as
S v Naidoo and Another
1998 (1) SACR 479
(N). The question, however, is whether, because
the impugned evidence was procured as a result of an infringement of
accused 10’s
right to privacy, it should be excluded on the basis
that its admission will be detrimental to the administration of
justice (s 35(5)
of the Constitution). We shall return to this
question later in the judgment.[79] The second ground of objection to
the admissibility
of the evidence sought to be introduced was that
the search in the home of accused 10 was in itself irregular and
illegal because
it was conducted without a search warrant and after
entry into the house had been illegally obtained. Although this
ground was
raised in counsel’s heads of argument, no further
submissions were advanced before us, but it was not abandoned either.
[80]
A third ground of objection raised on behalf of accused 10 was
that because the statement by accused 10 that the money was in the

ceiling constitutes what was conceded by the State to be ‘an
inadmissible confession’, the impugned evidence, which came into

being as a result of the making of the statement, was likewise
inadmissible. The evidence established that after the police had

gained entry into her house accused 10 was interviewed by two senior
officers, Superintendent Werner Havenga (Havenga) and Eva,
in the
kitchen and out of sight of the other members of her family. Accused
10 testified that one of the policemen gave her an
undertaking that
if she told them where the money was she and her family would not be
prosecuted but would be used as State witnesses.
Having satisfied
herself that the two officers were indeed policemen (she was shown an
appointment card by one of them) she obliged
and told them that the
money was in the ceiling. After the money was found she and the rest
of her family were taken to the police
offices where they made
witness statements. At no stage was she warned that she was a
suspect.[81] In cross-examination of accused
10 Mr Steynberg, for the
State, conceded that the undertaking was indeed given by the police.
Both Havenga and Eva, however, testified
that accused 10 was warned
by Havenga ‘in accordance with her rights’, according to Eva, and
‘in terms of the Interim Constitution’,
according to Havenga.
Eva said that Havenga told accused 10 that he was treating her as a
witness together with her family but
that the ultimate decision on
whether or not she would be prosecuted lay with the Attorney-General.
Havenga, on the other hand,
said that he informed accused 10 that if
she co-operated with them there was a possibility that she would be
used as a State witness,
but that the final word rested with the
Attorney-General. It was, however, never put to accused 10 that she
was told that the
undertaking not to prosecute was conditional upon
the final word of the Director of Public Prosecutions
(Attorney-General). That
they told her so is also not contained in
their statements. Havenga explains the omission by saying that it is
because accused
10 was a State witness, while Eva said he did not
think it was necessary to record it.[82] It seems clear, in our view,
that Havenga
never told accused 10 that the undertaking not to
prosecute her and her family was subject to a final decision of the
Director
of Public Prosecutions. Their further conduct supports this
view. Havenga suggested to accused 10 that she would be placed in
a
witness protection programme if she co-operated. He subsequently
arranged for a person from the programme to consult with her,
but she
decided not to participate in it. Although it is accepted that the
final decision whether or not to prosecute a person
is solely that of
the Director of Public Prosecutions, we are satisfied that Havenga
never informed accused 10 of that fact.[83]
The trial court, in any
event, concluded that the evidence of the finding of the money was
admissible. Indeed, as the learned
judge reasoned, s 218(1) of the
Criminal Procedure Act makes provision therefor. It reads:
‘Evidence
may be admitted at criminal proceedings of any fact otherwise
admissible in evidence, notwithstanding that the witness
who gives
evidence of such a fact, discovered such fact, or obtained knowledge
of such fact only in consequence of information
given by an accused
appearing at such proceedings in any confession or statement which by
law is not admissible in evidence against
such accused at such
proceedings, and notwithstanding that the fact was discovered or came
to the knowledge of such witness against
the wish or will of such
accused.’
[84] As has been mentioned above, the
State conceded in the court
a quo
,
and so did counsel for the State in this Court, that evidence of the
contents of accused 10’s statement that led to the discovery
of the
money is inadmissible in view of the fact that accused 10 was induced
by the promise that she would be used as a State witness
and would
not be prosecuted (for any offence, obviously) to say where the money
was. The provisions of s 218(1) of the Criminal
Procedure Act seem
to point to the admissibility of the evidence of the discovery of the
money, unless such evidence can be excluded
on grounds of unfairness
or on grounds that its admission would be detrimental to the
administration of justice. [85] Section
35(5) of the Constitution
provides:
‘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.’
There
is no doubt that the money found in the ceiling of the house of
accused 10 was found as a result of a violation, first, of
her
constitutional right to privacy (s 14 of the Constitution) in that
her private communications were illegally monitored following
the
unlawful tapping of her telephone line and, second, her right to
remain silent and her right against self-incrimination (s
35 of the
Constitution) in that she was induced to make the statement that led
to the finding of the money in the ceiling of her
house. As to the
latter right, the statement by accused 10 was not accompanied by an
exculpatory explanation and thus amounted
to a statement that she had
knowledge of relevant facts which
prima facie
operated to her disadvantage (Cf
S v Sheehama
,
[1991] ZASCA 45
;
1991 (2) SA 860
(A) 879 G-J). Such relevant facts would, for
example, be knowledge of how the money came to be in her house and
that it came from
the robbery.[86] Counsel for accused 10 contended
in this Court that the inclusion of the evidence of the finding of
the money
operated unfairly against accused 10. Her right to a fair
trial was thereby infringed because the evidence was obtained in a
manner
that violated her constitutional rights. Mr Steynberg, on the
other hand, submitted that in the circumstances of this case the

trial court was dealing with real evidence the inclusion of which did
not render the trial of accused 10 unfair.[87] The issue
whether the
admission of real (or derivative) evidence would render a trial
unfair has been the subject of a number of cases in
Canada under s 24
of the Canadian Charter of Rights and Freedoms (the Charter).
Section 24(2) of the Charter, though not in the
same terms as s 35(5)
of the Constitution, provides that where evidence was obtained in a
manner that infringed or denied any rights
or freedoms guaranteed by
the Charter such evidence ‘shall be excluded’ if it is
established that, having regard to all the
circumstances, its
admission would bring the administration of justice into disrepute.
In
R v Collins
(1987),
28 C.R.R. 122
at 137, Lamer J (Dickson C.J.C., Wilson and LaForest JJ
concurring) said:
‘If the admission of the
evidence in some way affects the fairness of the trial, then the
admission of the evidence would
tend
to bring the administration of justice into disrepute and, subject to
a consideration of the other factors, the evidence generally
should
be excluded.’ (Emphasis in original.)
And
further:
‘Real evidence that was obtained in a
manner that violated the
Charter
will rarely operate unfairly for that reason alone. The real
evidence existed irrespective of the violation of the
Charter
and its use does not render the trial unfair.’
[88] In
the later decision of
Thomson Newspapers Ltd
et al v Director of Investigation and Research et al
(1990) 67 DLR (4th) 161 at 256
a-e
,
La Forest J expressed himself in these terms:
‘A
breach of the Charter that forces the eventual accused to create
evidence necessarily has the effect of providing the Crown
with
evidence it would not otherwise have had. It follows that the
strength of its case against the accused is necessarily enhanced
as a
result of the breach. This is the very kind of prejudice that the
right against self-incrimination, as well as rights such
as that to
counsel, are intended to prevent. In contrast, where the effect of a
breach of the Charter is merely to locate or identify
already
existing evidence, the case of the ultimate strength of the Crown’s
case is not necessarily strengthened in this way.
The fact that the
evidence already existed means that it could have been discovered
anyway. Where this is the case, the accused
is not forced to
confront any evidence at trial that he would not have been forced to
confront if his Charter rights had been respected.
In such
circumstances, it would be the exclusion rather than the admission of
evidence that would bring the administration of
justice into
disrepute.’
Mr Steynberg relied on this
passage for his contention that the admission of the evidence of the
finding of the money, being
real evidence, did not render the trial
of accused 10 unfair. However, the Canadian Supreme Court has since
moved to a much stricter
approach to the issue. In
Burlingham
v The Queen
(Indexed as
R
v Burlingham
) (1995) 28 C.R.R. (2d) 244 at
262, Iacobucci J (La Forest, Sopinka, Cory and Major JJ concurring)
said:
‘On the other hand, Lamer J. noted [in
R
v Collins
] that the admission of real
evidence obtained in a manner that violates the
Charter
will rarely operate unfairly for that reason alone. This conclusion
militates against the exclusion of the gun in the case at
bar.
However, I find that, in jurisprudence subsequent to
R
v Collins
, this court has consistently shied
away from the differential treatment of real evidence. For example,
in
R v Ross
(1989), 37
C.R.R. 369
at p. 379, … Lamer C.J.C. emphasized that the
admissibility of evidence under s.24(2) depended ultimately not on
its nature as
real or testimonial, but on whether or not it would
only have been found with the compelled assistance of the accused:
“…
the use of
any evidence
that could not have been obtained but for the participation of the
accused in the construction of the evidence for the purposes
of the
trial would tend to render the trial process unfair.”(Emphasis
added.)These comments are apposite to the case at bar.
Further, I
draw attention to the conclusions of La Forest J. in
R.
v. Colarusso
(1994), 19 C.R.R. (2d) 193 at
p.216, … where it was noted that the mere fact that impugned
evidence is classified as either real
or conscriptive should not in
and of itself be determinative.’
Iacobucci J
goes further at p 263:
‘I conclude my review of
the pertinent jurisprudence with the recent decision of
R.
v. S.(R.J.)
(1995), 26 C.R.R. (2d) 1, ….
In that case it was recognized that, despite the fact that
theoretically the onus rests on the accused
to show that the impugned
evidence would not have been found but for the unconstitutional
conduct, in practice the burden will
often fall on the Crown as it
possesses superior knowledge. It was held at pp.69-70 C.R.R., p.553
S.C.R., that the “but-for”
test will be met by the Crown when it
satisfies the court on a balance of probabilities that the law
enforcement authorities would
have discovered the impugned derivative
evidence regardless of the information arising from the
unconstitutional conduct.’
(See also the
concurring judgment of Sopinka J, especially at p 276.)[89] In that
case (
Burlingham
) the
appellant was charged with murder. The investigators had succeeded
in obtaining from him, in spite of his repeated insistence
to first
consult his legal representative, information regarding the place
where the murder weapon, a gun, could be found. It
was subsequently
retrieved by police divers from the bottom of a frozen river.
Iacobucci J found that ‘the derivative real evidence,
the gun,
would not
have been
found but for the information improperly obtained’ through the
breach of the appellants’ right to counsel (s 10(b)
of the
Charter). (Emphasis in the original.) The result was that a retrial
was ordered with the direction that certain evidence,
inter
alia
the evidence of the finding of the gun
in the river, be excluded. What emerges from this is that evidence
derived (real or derivative
evidence) from conscriptive evidence, ie
self-incriminating evidence obtained through a violation of a Charter
right, will be excluded
on grounds of unfairness if it is found that
but for the conscriptive evidence the derivative evidence would not
have been discovered.
In the present case the information sourced
from the illegal monitoring of accused 10’s telephone line, which
ultimately led
to the discovery of the robbery money in her house,
was not conscriptive evidence.
[90] As to the undertaking not to
prosecute, given to accused 10 by Havenga, it was argued on behalf of
the State that the money
would in any event have been discovered by
the police even without the breach of accused 10’s constitutional
rights. Indeed
that was the evidence tendered by the State before
the trial court. We are prepared to accept that the police, armed
with information
gained from the illegal monitoring, would probably
have searched the house, although they admittedly had no search
warrant, and
would have found the money. From photographs which were
handed in as exhibits, the bags containing the money could be seen
immediately
upon the trap door in the ceiling being opened. The
result is that the admission of the derivative evidence, ie the
impugned evidence,
‘while prejudicial to the [appellant] as
evidence tendered by the [State] usually is’ (
R
v Collins, supra
, at 140) will not render the
trial unfair. [91] This brings us to the second leg of the enquiry,
viz whether the impugned evidence
should in any event be excluded on
grounds that to include it will be detrimental to the administration
of justice. Although the
wording of s 24(2) of the Charter
differs from s 35(5) of the Constitution, it is again useful to
consider the approach of
the Canadian courts to the concept ‘Bringing
the administration of justice into disrepute’. The concept is not
foreign to
our law of evidence. Froneman J, for example, suggested
in
S v Melane
1995
(4) SA 412
(E) at 424 E-G;
1995 (2) SACR 141
(E) at 154
b-d
that in cases of violation of a s 25(2)(a) right guaranteed by the
Interim Constitution – which did not have a provision similar
to s
35(5) of the Constitution - evidence obtained as a result of such
violation should be excluded, unless to do so would bring
the
administration of justice into disrepute.[92] Whether the admission
of evidence will bring the administration of justice in
disrepute
requires a value judgement, which inevitably involves considerations
of the interests of the public. In
R v
Collins
,
supra
,
at 134, Lamer J says that the applicable test is ‘whether
the
admission of evidence
would bring the
administration of justice into disrepute’. (Emphasis in original.)
Although police misconduct in the investigatory
process often has
some effect on the repute of the administration of justice, s 24(2)
is not a remedy for police misconduct, says
Lamer J, requiring the
exclusion of the evidence if, because of this misconduct, the
administration of justice was brought into
disrepute. At p 135 of
the
Collins
judgment
Lamer J reasons that the concept of disrepute necessarily involves
some element of community views and concludes that
‘the
determination of disrepute thus requires the judge to refer to what
he conceives to be the views of the community at large’.

Obviously, the views of the community will change from time to time
and what may have been in the public interest at one point
might not
be at some other point.[93] Although s 35(5) of the Constitution does
not direct a court, as s 24(2) of the Charter
does, to consider
‘all the circumstances’ in determining whether the admission of
evidence will bring the administration of
justice into disrepute, it
appears to us to be logical that all relevant circumstances should be
considered. Lamer J, at p 137
of the
Collins
judgment, lists a number of factors to which the Canadian Courts have
had regard and which are to be considered and balanced in
the
determination of whether the admission of evidence will bring the
administration of justice into disrepute. It is not necessary
to
list those factors here, but some of them we have already considered,
for example, the kind of evidence that was obtained, what

constitutional right was infringed, was such infringement serious or
merely of a technical nature and would the evidence have been

obtained in any event. As to the seriousness of the infringement of
the constitutional right Lamer J suggests (at p 138) that
the
availability of other investigatory techniques and the fact that the
evidence could have been obtained without the infringement
tend to
render the violation of the right more serious. In the present case
the infringement of accused 10’s right to privacy
through the
illegal monitoring was quite serious when looked at from the point of
view of how the direction to monitor was procured.
It certainly was
not merely technical. As has been mentioned above, it was conceded
on behalf of the State before the trial court
that the application
for the direction contained false information. In his testimony
Captain Van der Vyver, on being questioned
on this issue, admitted
‘that I made lots of mistakes in the application for the phone
tapping, and Judge McCall did criticise
me extensively’. The
judicial criticism that he refers to is contained in the judgment of
McCall J on this very issue of the
illegal monitoring of accused 10’s
telephone line in
S v Naidoo and Another,
supra
. In that judgment (at 515g) McCall J
characterised the application for the direction as containing
information ‘some of which
is patently false, and some of which is
downright misleading’. And it matters not, in our view, whether
the officers who did
the actual monitoring, and Eva and Havenga, who
acted on the information gained from the illegal monitoring, were
unaware of the
fact that the direction was procured on false,
misleading information. Captain Van der Vyver was part of the team
of investigators
and in all probability acted, in procuring the
direction, on the instructions of Eva as investigating officer. That
Eva and Havenga
might not have known of the illegality of the
monitoring does not make the infringement less serious. And for his
part, Eva conceded
before the trial court that other means of
investigation were available to them, surveillance of the suspects’
houses being one.
Indeed, he testified that some houses had been
kept under surveillance.
[94] In our view, to allow the impugned
evidence derived as a result of a serious breach of accused 10’s
constitutional right
to privacy might create an incentive for law
enforcement agents to disregard accused persons’ constitutional
rights since, even
in the case of an infringement of constitutional
rights, the end result might be the admission of evidence that,
ordinarily, the
State would not have been able to locate. (Cf
R
v Burlingham, supra
, at 265.) That result –
of creating an incentive for the police to disregard accused persons’
constitutional rights, particularly
in cases like the present, where
a judicial officer is misled – is highly undesirable and would, in
our view, do more harm to
the administration of justice than enhance
it.
[95] The violation of accused 10’s
constitutional rights did not end with the unlawful monitoring of her
private telephone communications.
Subsequently, a team of police
officers, led by Eva and Havenga, forced their way into her house and
thereafter persuaded her
to tell them where the money was hidden,
giving her an undertaking that she would not be prosecuted and would
be used as a State
witness in the event that she gave them the
information they required. They probably sought her assistance
because they realised
that they had no search warrant. We have
mentioned earlier in this judgment (para 68) that whether the
admission of evidence will
bring the administration of justice into
disrepute requires a value judgment, which necessarily involves
considerations of the
interests of the public. [96] What are the
interests of the public? Our country is presently plagued by serious
crime of which
robbery, where large sums of money are stolen, appears
to be too frequent an occurrence. It is therefore desirable in the
public
interest that crime should be detected and the perpetrators
punished. Government Ministers responsible for safety and security

and the justice system, together with leaders in the South African
Police Service, have often commented from public platforms that
the
rampant crime rate in this country could be effectively reduced if
the public was prepared to assist in the process. In the
instant case
the police were investigating what might have been the biggest
robbery in the country ever. They were after the criminals
who had
perpetrated the robbery, of whom Yegan Naidoo would appear to have
been a prime suspect. They required the assistance
of accused 10
whom they knew had spoken to Yegan Naidoo and with her evidence they
were sure to arrest him (which they did) and
possibly others. Can it
ever be in the public interest, in a crime ridden society like ours,
and where members of the public are
urged to assist in combating
crime by reporting it, to charge someone after having given him/her
an undertaking that he or she
would not be charged in the event of
him or her disclosing a fact which, though prejudicial to him or her,
will bring perpetrators
of serious crime to book? We think not. In
our view such conduct would be more harmful to the justice system
than advance it.
And what transpired in accused 10’s house should
not be considered in isolation, as if removed from the original
violation of
accused 10’s right to privacy, ie the illegal
monitoring of her telephone communications. There may well be cases
of serious
infringement of constitutionally guaranteed rights where
the interests of the public would not be served by the exclusion of
evidence
obtained as a result of such infringement. The present is,
however, not one of them. Each case will depend upon its own facts.

[97] Lamer J, in the
Collins
case (at 138), says the question under s 24(2) of the Charter is
whether the system’s repute will be better served by the admission

or the exclusion of the evidence. Our view is that the same applies
under s 35(5) of the Constitution. Although it may cause
concern
that a perpetrator such as accused 10 might go free as a result of
the exclusion of evidence which would have secured her
conviction,
what needs to be born in mind is that the objective of seeking
co-operation from such a person is to facilitate a conviction
for an
even more serious offence. The police, in behaving as they did, ie
charging accused 10 in spite of the undertaking, and
the courts
sanctioning such behaviour, the objective referred to will in future
be well neigh impossible to achieve. To use the
words of s 35(5)
of the Constitution it will be detrimental to the administration of
justice.[98] Accordingly, and considering
what has been said above,
our view is that the derivative evidence sought to be admitted should
be excluded on the grounds that
its inclusion will bring the
administration of justice into disrepute. The evidence of the
finding of the money is the only evidence
against accused 10 and its
exclusion means there is no evidence upon which she could be
convicted. Her appeal should accordingly
succeed.
ACCUSED
14
[99] Accused 14 is an unmarried police
officer who obtained the rank of captain in 1977. At the time of the
trial she had been
a member of the South African Police Service for a
period of 12 years. She admitted that from July 1996 to June 1998
she had had
an affair with accused 13, who was, at the time of the
trial, a captain in the South African Police, stationed at the Cato
Manor
police station. Accused 14 was attached to the Sydenham Police
Station, Durban.[100] The allegations of robbery (the State sought
a
conviction on the competent verdict of being an accessory after the
fact to robbery) and money laundering against accused 14
followed
upon an investigation into her financial status and asset base by the
witness Eric Stephen Burnett (Burnett), a qualified
chartered
accountant and a partner in KPMG, a firm of chartered accountants.
KPMG had received instructions from the South African
Police Service
to provide forensic accounting services to the team involved in the
investigation of the SBV robbery. The name
of accused 14 was amongst
a list of names of persons alleged to have been associated with the
original suspects in the robbery
and whose financial affairs were to
be investigated.[101] Mayadevan testified that following the arrest
of Yegan Naidoo shortly
after the robbery, Sagren Soobramoney Nair,
who was accused 3 and who was convicted on the main count, requested
him to take his
(accused 3’s) share of the money from the robbery
to accused 13 at Cato Manor for safe keeping. Accused 3 had
apparently made
the necessary arrangements with accused 13.
Mayadevan testified further that on one occasion accused 13 informed
him, during a
conversation he had with him, that he (accused 13) had
placed monies in the accounts of family members and accused 14. It
appears
that when he decided to confess his part in the robbery to
the police, Mayadevan also passed on to them the information he had
received from accused 13.
[102] From Burnett’s report it appears (and this is
not in dispute) that at the time of the robbery accused 14’s net
income
after deductions, which included bond repayments, was
approximately R2 500,00 per month. She held a special savings
account with
the Permanent Bank. As at 31 July 1996 the balance in
that account was R9 146,94. It is common cause that accused 14 also
held
the following accounts: a Focus Save account issued on 16 April
1996, with a value of R675,00 as at 22 July 1996; a Blue Book

account issued on 16 February 1995, with a balance of R9 849,32 as at
31 July 1996 and a Perm Term fixed deposit issued on 20 March
1996
with a value of R15 000,00. The Blue Book account matured on 3
February 1997 and the fixed deposit on 20 March 1997.
[103] Burnett’s investigation of accused 14’s
banking transactions revealed that a large number of deposits of
substantial sums
were made into accounts operated by accused 14
during the period August 1996 to January 1998. Most of these were
cash deposits,
many in R50 notes. The evidence tendered by the State
in the trial was that the cash stolen from SBV was in the main in R50
note
denominations. According to Burnett’s report, accused 14
received and deposited funds in the total sum of R396 371,54 in

the period investigated.
[104] Accused 14 conceded, and so did accused 13, that
during the period in question approximately R300 000,00 of the money
deposited
into her banking accounts came from accused 13. This was
effected by way of some ten separate deposits of amounts ranging from

R5 000,00 to R80 000,00. No record was kept of what money
belonged to accused 13. It was simply mixed with accused 14’s
who
kept the interest that accrued. She said that she kept a mental
recollection with accused 13 as to which monies were his.
Some of
the money was placed into fixed period investment accounts. In
evidence accused 14 sought to explain that many of the
deposits that
make up the total of R396 371,54 were either unrelated to
accused 13 or were monies that did not belong to him.
Cash deposits
on 1 November 1996 and 31 October 1997 of R6 500,00 and R5
000,00 respectively were, she said, birthday bonuses.
Two cash
deposits of R5 000,00 and R5 500,00 on 14 August 1996 and 3
April 1997 respectively were said to be contributions
by her mother,
who lived with her, towards the upkeep of the house. Three cash
deposits of R5 000,00 on 21 January 1997, R6 000,00
on 5 March 1997
and R5 000,00 on 11 April 1997 were said to be repayments of a loan
she had made to a colleague. A further deposit
of R10 000,00 by
cheque on 26 November 1996 was, according to her, part payment of a
loan she had made to accused 13 and another
cheque deposit of R5
000,00 on 2 August 1997 was a repayment of a loan by accused 13.
[105] Further cash deposits of amounts received from
accused 13 were made on 7 September 1996, 14 September 1996 and 3
October 1996,
totalling R27 350,00. On 9 December 1996 the sum
of R75 000,00 was deposited by cheque, followed by a cash deposit of
R75
000,00 in R50 notes on 27 December 1996 and a further cash
deposit of R70 000,00 on 20 January 1997. This means that in a space

of five weeks she received a total of R220 000,00 from accused
13 to place into her accounts. On 9 June 1997 she deposited
an
amount of R80 796,56, on 5 November 1997 a cheque for R40 000,00
and on 7 January 1998 a further cheque for R50 000,00.
She
sought to explain the latter amount as a repayment of a loan she had
made to accused 13 on 2 September 1997. Bearing in mind
her
financial status as at August 1996 she did not explain where she
would have received the R50 000,00 that she allegedly
loaned to
accused 13.
[106] Accused 14 testified that when accused 13 asked
her to keep money for him he explained that he wanted to purchase a
house
for his mother and did not want his wife to know about it. He
did not say, however, whether he was going to make a single deposit

of money or several, nor did she ask him. She also never asked him,
as and when he gave her monies to deposit, where the money
came
from. She insisted that at no time did she even suspect that the
money may have had an illegal source. When asked what she
thought
the source of accused 13’s money was she testified that she knew
accused 13 to be a wealthy man who carried large sums
of money in his
wallet, drove expensive cars and dressed differently to other
policemen. She was aware that accused 13 had a milk
formula business
which was a source of income.
[107] Accused 14 acknowledged herself to be an assertive
person who had succeeded in attaining the rank of captain in what was
essentially
a man’s world. Her assertion that she naïvely
believed that accused 13 had acquired such vast sums of money
legitimately was
rejected by the trial court and, in our view,
correctly so. First, accused 13 could have concealed his intentions
from his wife
by simply opening a separate account, or, at best for
accused 14, he would have asked her to open a separate account and
not merely
allowed her to deposit large amounts of money into her own
account and to appropriate the interest for herself. Second, it
would
have become clear to her that the money was not intended for
the purchase of a house when accused 13 requested her, as early as

December 1996, to make out a cheque in favour of the Old Mutual for
R50 000,00. She later issued cheques at the request of accused
13
for substantial amounts which were quite clearly unrelated to the
purchase of a house. On 11 June 1997 she issued a cheque
for R100
000,00 in favour of an attorney, L Naidoo. This was at the time of
the trial of Rajan and Yegan Naidoo and attorney Naidoo
was acting on
their behalf. On 17 July 1997, and at the request of accused 13 she
issued a cheque for R125 000,00 in favour of
the Old Mutual and, on
the same date, a cheque for R25 000,00 payable to accused 16, who was
accused 13’s sister in-law.
[108] Accused 14’s insistence that she never asked
accused 13 where the money came from is highly improbable. It is
similarly
improbable that she would not have suspected that the money
came from an illegal source. Accused 14 was a police women for 12
years and, as has been mentioned, rose through the ranks until the
rank of captain. She simply could not have believed, for example,

that the sale of the milk formula could yield a total of R220 000,00
(three deposits of R75 000,00, R75 000,00 and R70 000,00)
within
a period of five weeks. Her assertion of a naïve belief in accused
13’s innocence is made all the more improbable when
one bears in
mind that the greater amount of money given to her by accused 13 was
in cash. Her lame excuse that accused 13 had
always seemed wealthy
and that his money possibly came from the sale of the milk formula,
which he marketed in his spare time,
is totally unconvincing.
[109] The court
a quo
found, and this was not
disputed in this Court, that the money given to accused 14 by accused
13 was part of the money stolen in
the SBV robbery. It found further
that accused 14 must have asked accused 13, if not right at the start
then at some stage before
she received all of it, where the money
came from. The trial court held further that there can only be one
reason why accused
14 lied on the question and that is that accused
13 must have told her that the money was part of what was stolen in
the robbery.
[110] We agree with the trial court that as a matter of
probability accused 14 must have asked accused 13 what the source of
the
money was. However, we are not persuaded that the only
reasonable inference to be drawn from her denial that she did is that
accused
13 told her that the money was part of what was stolen in the
robbery. It is so that after the arrest of Rajan and Yegan Naidoo

accused 13 became involved in providing funding for their legal
representation. It is also true that at some stage accused 14
came
to know that Yegan Naidoo was accused 13’s cousin, that he had been
charged with the SBV robbery and that accused 13 was
attending court
on Yegan’s appearances on a daily basis. But it does not
necessarily follow that accused 13 told her, nor that
she suspected,
that the money given to her by accused 13 came from the robbery.
Yegan Naidoo’s share from the robbery, or at
least the major
portion of it, had been confiscated by the police (it was found in
the ceiling of accused 10’s house). It follows
that accused 14 was
wrongly convicted of being an accessory after the fact to robbery.
[111] We are prepared to accept, however, that accused
14 must at least have realised that the money came from an illegal
source.
So much was conceded before us by Mr Naidu, who appeared on
her behalf. Mr Naidu also conceded that accused 14 made herself
guilty
of money laundering and/or assisting another to benefit from
the proceeds of crime in contravention of the provisions of the
Proceeds of Crime Act 76 of 1996
. He submitted, however, that
because the trial court had acquitted accused 14 on counts 2, 3 and 4
this Court cannot, in the absence
of an appeal by the State,
substitute the trial court’s verdict with one of guilty.
[112] In its judgment the trial court observed that on
the evidence that had emerged during the trial ‘it would amount to
an unjustified
duplication of charges’ were the accused to be
convicted on counts 2, 3 and 4 in addition to the main count or a
competent verdict.
It appears from the trial court’s judgment that
counsel for the State had indicated in argument that he sought
convictions against
accused 9 to 18 for being accessories after the
fact to robbery and against accused 19 for having contravened
s 28
of
Act 76 of 1996 (count 2). It is for these reasons that the trial
court returned a verdict of not guilty in respect accused
14 (and
others) on counts 2, 3 and 4.
[113] In
R v Kaseke and Another
1968 (2) SA 805
(R, AD), a matter in which the second appellant had been convicted by
a magistrate on counts 1 to 5 on the strength of a confession
plus
evidence
aliunde
confirming the confession or proving that the
offences alleged in the counts had been committed, and acquitted on
counts 6 to 9.
The convictions on counts 1 to 5 were in fact wrong
since there was no evidence against the second appellant to
substantiate those
counts. The confession and evidence
aliunde
related to counts 6 to 9. The Court of Appeal accordingly set aside
the convictions on counts 1 to 5. It was argued on behalf
of the
Crown, however, that it was permissible to substitute for those
convictions which had now been set aside a conviction on
counts 6 to
9. Beadle CJ, with whom Davies AJA concurred, said (at 806H):
‘
This submission amounts to an appeal by
the Crown against the acquittals on these counts and the substitution
of a verdict of guilty
in the place of that of not guilty. In the
absence of clear statutory authority empowering the Court to adopt
such a course, I
cannot see how it can be followed as it cuts across
all the fundamental principles related to the doctrine of
autrefois
acquit
.’
The Court of Appeal accordingly refused to set aside the
magistrate’s verdict of an acquittal on counts 6 to 9.
[114] The powers of a court of appeal are derived from s
22 of the Supreme Court Act 59 of 1959 and s 322 of the Criminal
Procedure
Act 51 of 1979. Section 22 of the former reads:
‘
The appellate division or a provincial division, or a
local division having appeal jurisdiction shall have power –
(a) …
(b) to confirm, amend or set aside the judgment or order
which is the subject of the appeal
and to give any judgment or
make any order which the circumstances may require.’ (Emphasis
added.)
It is clear from this section that the
power to confirm, amend or set aside a judgment or order can only be
exercised in respect
of a judgment or order which is the subject of
an appeal. In the instant case the order acquitting accused 14 on
counts 2, 3 and
4 is not the subject of an appeal before us. Cf
Rex
v Motala
1927 AD 118.
[115] Section 322(1) of the Criminal
Procedure Act is in the following terms â€“
‘
In the case of an appeal against a conviction or of
any question of law reserved, the court of appeal may –
(a) allow the appeal if it thinks that the judgment of
the trial court should be set aside on the ground of a wrong decision
of
any question of law or that on any ground there was a failure of
justice; or
(b) give such judgment as ought to have been given at
the trial or impose such punishment as ought to have been imposed at
the trial;
or
(c) make such other order as justice may require.’
The subsection clearly deals with the powers a court of
appeal may exercise in the instance of an appeal against a conviction
or
where a question of law has been reserved for its consideration.
It does not give a court of appeal the power to alter an acquittal

order or to substitute it with a finding of guilty. Mr Steynberg’s
submission that we do so cannot be entertained.
[116] We accordingly make the following order:
(a) Condonation is granted to accused 7 (4th appellant)
for the late filing of his application for leave to appeal. His
application
for leave to appeal succeeds and such leave is granted.
(b) The appeals of accused 7, 10 and 14 succeed and
their convictions and sentences are set aside.
(c) The appeal of accused 9 is dismissed.
L
MPATI DP
N J MOTATA AJA
SCOTT JA/…
SCOTT JA:
[1] I have had the advantage of reading in draft form
the judgment of my brothers Mpati and Motata. I agree that the
appeals of
accused 7 and 14 must be upheld and the appeal of accused
9 dismissed. I regret, however, that I am unable to agree that the
appeal
of accused 10 must be upheld. In my view she was correctly
convicted. As this is a minority judgment I shall state the reasons

for my conclusion as briefly as possible.
[2] On behalf of accused 10 it was argued that the State
was precluded from prosecuting her by reason of an agreement
concluded
between her counsel and the Director of Public
Prosecutions. It was also argued that by reason of an ‘undertaking’
previously
made by the police to use her as a State witness, her
subsequent trial was unfair. In my view neither contention has merit
and
I agree with the conclusion reached by Mpati DP and Motata AJA in
so far as these are concerned. Subject to these contentions, however,

it was common cause in this Court that whether accused 10 was
correctly convicted or not depended solely on the admissibility of

the evidence that on 22 August 1996, ie about two weeks after the
robbery, some R5m in cash was found concealed in the roof of
her
house. Following a trial within a trial the Court
a quo
ruled
that the evidence was admissible. In this Court the correctness of
this ruling was attacked on two grounds. The first was
that the money
was discovered in consequence of an inadmissible statement made by
accused 10. The second was that the discovery
of the money was as a
result of information gleaned by the police from the unlawful tapping
of accused 10’s telephone line and
that as such it constituted
inadmissible ‘derivative evidence’. A third ground was raised in
counsel’s heads of argument,
but not pursued. This was that the
money had been discovered in the course of a search conducted without
a search warrant. The
evidence established, however, that the police
had reason to believe that the money or other goods, including
possibly firearms,
taken in the robbery were about to be removed from
accused 10’s house and that any delay would have defeated the
object of the
search. In the event, the operation was supervised by a
senior policeman, Superintendent Havenga with the knowledge and
approval
of his superior, Senior Superintendent Booysen. It was they
who took the decision that the matter was sufficiently urgent to
justify
proceeding without a warrant. In passing, it is perhaps also
worthy of note that both, by virtue of their rank, would ordinarily

be entitled to issue search warrants. In all the circumstances
counsel was in my view fully justified in not pursuing the point
and
it need not be considered further. I shall deal with each of the
remaining grounds in turn.
[3] It was not in dispute that at about 9.30 pm on the
night in question a group comprising some 12 policemen, led by
Superintendent
Havenga and the investigating officer, Captain Eva,
‘penetrated’ the house of accused 10. This involved breaking open
the front
door suddenly and without warning. The reason for this,
they said, was that not only did they suspect that the goods
concealed
in the house included firearms but that a few days
previously a colleague, Captain Claasen, had been shot at through a
door on
which he had knocked when attempting to arrest a suspect.
After ensuring that the occupants were unarmed Havenga and Eva spoke
to accused 10 in the kitchen. What was said by the policemen was
disputed. According to accused 10 they told her they were there
to
pick up the money and they assured her that if she gave them the
money she would not be charged but would be used as a State
witness.
She said she thereupon told them that the money was hidden in the
roof. According to Havenga and Eva, the former, in the
presence of
the latter, informed accused 10 of her rights in terms of the Interim
Constitution but then went on to explain that
it was their intention
to use her as a State witness rather than charge her. He explained,
however, that whether she was charged
or not ultimately depended on
the decision of the Attorney General. Accused 10, they said,
immediately indicated her willingness
to cooperate and told them
where the money was hidden. I pause to observe that Havenga sought
her assistance not, as has been
suggested, because he had no search
warrant, but for the obvious reason that he wished to use her as a
witness to obtain a conviction
against the persons he believed to be
the main culprits. The Court
a quo
accepted the version of the
policemen and rejected that of accused 10. It is true that neither
Havenga nor Eva made mention in
their statements of Havenga having
warned accused 10 of her rights, but given the nature and extent of
the events culminating in
the discovery of the cash traversed in
their statements, the omission of this detail is, in my view, of
little significance. Accused
10, on the other hand, was clearly a
poor witness. Her evidence as to how the police had behaved was not
only at variance with
her husband’s evidence, but in important
respects was shown to have been false by a video made at the time and
subsequently viewed
by the Court
a quo
. I can see no
justification for interfering with the trial Court’s finding. On
either version, however, what was said by accused
10 was inadmissible
as it was made in pursuance of an undertaking, albeit conditional,
that she would be used as a State witness.
This was common cause.
[4] It was argued on behalf of accused 10 that by reason
of the undertaking not only was the evidence of her disclosure
rendered
inadmissible but so was the evidence of the discovery of the
money.
Section 218(1)
of the
Criminal Procedure Act 51 of 1977
reads
as follows;
‘
(1) Evidence may be admitted at criminal proceedings
of any fact otherwise admissible in evidence, notwithstanding that
the witness
who gives evidence of such fact, discovered such fact or
obtained knowledge of such fact only in consequence of information
given
by an accused appearing at such proceedings in any confession
or statement which by law is not admissible in evidence against such

accused at such proceedings, and notwithstanding that the fact was
discovered or came to the knowledge of such witness against
the wish
or will of such accused.’
Two observations need to be made. The first is that the
section permits the proof of the discovery of what is sometimes
referred
to as real evidence, but not proof of the link between that
discovery and the accused. (
CF R v Tebetha
1959 (2) SA 337
(A)
at 343A-B.) In other words, the ambit of the section is confined to
evidence which is obtained derivatively as a result of
information
given by the accused. In the present case the State sought to prove
only the discovery of the money in the roof. Evidence
of that
discovery, and no more, is clearly evidence contemplated in
s 218(1)
and rendered admissible by its provisions. The second observation is
that the section does no more than afford a court a discretion
to
admit such evidence. It follows that the constitutionality or
otherwise of the section does not arise. In each case it will
be for
the court to ensure that the evidence tendered will meet the
requirements of the Constitution. The essential inquiry will
be
whether the evidence, notwithstanding its derivative nature, would
involve a violation of any of the accused’s rights in the
Bill of
Rights and, if so, whether that evidence should nonetheless be
admitted. In the context of counsel’s first ground of
objection it
would appear on the facts that accused 10’s right to a fair trial
was the only such right that could possibly be
jeopardized by the
admission of the evidence of the discovery of the money in the roof.
If the right was not violated, that of
course would be the end of the
inquiry and the evidence would be admissible. But whether the right
was violated or not is a question
which I shall deal with more fully
in the context of the unlawful tapping of her telephone line. All
that need be said at this
stage is that both Eva and Havenga had
reason to believe that money taken in the robbery was concealed in
accused 10’s house
and it was clearly their intention to search for
it if this proved necessary. Eva testified that when carrying out a
search of
this nature it was standard practice to look in the roof in
the event of there being a trap door in the ceiling and that they
therefore
would have found the money whether accused 10 told them
where it was or not. There is nothing improbable about this evidence.
Indeed,
I would have thought that the roof would be an obvious place
to look. Eva’s evidence in this regard was, in any event, not
challenged
in cross-examination and I can see no basis for rejecting
it. (Compare the facts in
Burlingham v The Queen
(1995) 28 CRR
(2
nd
) 244 referred to in more detail below.) In these
circumstances, and for reasons which will become apparent, the fact
of accused
10’s disclosure of where the money was hidden would
clearly not result in proof of its subsequent discovery rendering the
trial
unfair. In the event, the money was found with tags still
attached identifying it as having come from the SBV.
[5] I turn now to the second ground. It is common cause
that the telephone line of accused 10 was tapped shortly after the
robbery
following the granting of a direction in terms of s 2(2)(c)
of the Interception and Monitoring Prohibition Act 127 of 1992
authorising
the police to do so. The application was made by a
captain Van der Vyver. It was said in evidence to have contained
‘serious
inaccuracies’ and for this reason to have been declared
invalid by the Court which tried Logandheran and Rajan Naidoo. (See
S
v Naidoo and Another
1998 (1) SACR 479
(N).) That trial was held
sometime before the trial which is the subject of the present appeal.
No attempt was made in the Court
a quo
to challenge the
correctness of this ruling; it was simply accepted as being correct
and the full extent of the ‘inaccuracies’
was not explored in
evidence. Indeed, the trial proceeded on the basis that the direction
was invalid and that the tapping of accused
10’s telephone
constituted a violation of her right to privacy in terms of s 14 of
the Constitution. In the
Naidoo
case, the State sought to rely
on evidence as to the content of the telephone conversations
unlawfully monitored. That evidence
was held to be inadmissible. I
should add that following the judgment, the State closed its case and
both accused were acquitted.
In the Court
a quo
they were
referred to in evidence, as Yegan and Rajan respectively and were
heavily implicated in the commission of the robbery.
As far as
accused 10 is concerned, however, the State did not seek to rely on
evidence as to what was said in the course of a monitored
telephone
conversation; it sought merely to rely on the evidence of the
discovery of the money concealed above the ceiling in accused
10’s
house. That evidence, of course, constituted derivative evidence as
Eva and Havenga had learned that the money or other
goods taken at
the time of the robbery were being kept at accused 10’s house by
listening to a tape recording of a monitored
telephone conversation.
It was not in dispute that Eva and Havenga had at all times acted in
the
bona fide
belief that the direction authorising the
tapping of accused 10’s telephone line had been properly sought and
was valid.
[6] Subject to certain notable exceptions, the general
approach adopted in South Africa prior to 1994 was that relevant
evidence
was admissible regardless of whether it was illegally or
improperly obtained. In the United States the courts went to the
other
extreme; subject only to the so-called ‘reasonable mistake’
exception, evidence obtained in violation of the constitution is

excluded. The Interim Constitution contained no express provisions
dealing with the admissibility of evidence unconstitutionally

obtained. Generally the courts adopted a flexible approach, applying
neither an absolute exclusionary nor inclusionary rule. In
some cases
the emphasis was placed on the Court’s discretion to admit such
evidence. In others, the emphasis was placed on the
requirement of a
fair trial. In yet others, it was suggested that in each case the
‘two-stage approach’ embodied in s 33(1)
of the Interim
Constitution had to be applied. (For a useful resumé of these cases
see
Naidoo
’s case,
supra
at 491b – 498b). However,
this difference of approach is no longer relevant. The new
Constitution deals expressly with the admissibility
of evidence
unconstitutionally obtained. Section 35(5) reads:
‘
Evidence obtained in a manner that violates any right
in the Bill of Rights must be excluded if the admission of that
evidence would
render the trial unfair or otherwise detrimental to
the administration of justice.’
In adopting the approach they did, the drafters of the
Constitution appear to have adopted a
via media
between the
extreme approach adopted in the USA on the one hand and that formerly
adopted in South Africa on the other. In doing
so they have largely
followed the example of Ireland, Australia, New Zealand and
particularly Canada. (See generally
Fedics Group (Pty) Ltd and
Another v Murphy and Others
1998 (2) SA 617
(C) at 634B-635F.)
Section 24(2) of the Canadian Charter requires evidence obtained in a
manner that infringed guaranteed rights
to be excluded if its
admission ‘would bring the administration of justice into
disrepute’. It has been construed as meaning
that the
administration of justice would be brought into disrepute if the
admission of the evidence in question would render the
trial unfair.
See
R v Jacay
(1989) 38 CRR 290
at 298. It follows that
Canadian decisions can provide a useful guide when interpreting s
35(5) of our Constitution. Nonetheless,
the greatest caution must be
exercised when transporting those decisions to the South African
context. (See in this regard the
remarks of Ackermann J in
Ferreira
v Levin NO and Others
;
Vryenhoek and Others v Powell NO and
Others
1996 (1) SA 984
(CC) at 1065B-D (para 133).) It should
also be borne in mind that by reason of the wide powers of the
Canadian Supreme court to
order a retrial, a decision by that Court
to exclude evidence is less likely to result in the acquittal of a
guilty person than
a similar exclusion in South Africa.
[7] In the present case the real evidence, that is to
say that the money was hidden in accused 10’s roof, existed quite
independently
of any infringement of the Bill of Rights. As noted by
Martland J in
The Queen v Wray
(1970) 11 DLR (3d) 673 at 691,
there is a clear distinction between unfairness in the method of
obtaining evidence and unfairness
in the actual trial. The former
does not necessarily result in the latter. Where the infringement
results in the creation of evidence
which would not otherwise exist,
eg a self incriminatory statement or, as it is some times called,
conscriptive evidence, it is
generally accepted that the admission of
such evidence will affect the fairness of the trial. The reason, of
course, is that without
the infringement the evidence would not have
come into existence. But where, as in the present case, the
infringement results in
the discovery of a fact, ie the presence of
the money in the roof, which would have existed whether there was an
infringement or
not, the impact on the fairness of the trial, if any,
is less obvious. In
Collins v The Queen
(1987) 38 DLR (4
th
)
508 at 526 Lamer J said:
‘
Real evidence that was obtained in a manner that
violated the Charter will rarely operate unfairly for that reason
alone. The real
evidence existed irrespective of the violation of the
Charter and its use does not render the trial unfair. However, the
situation
is very different with respect to cases where, after a
violation of the Charter, the accused is conscripted against himself
through
a confession or other evidence emanating from him. The use of
such evidence would render the trial unfair, for it did not exist

prior to the violation and it strikes at one of the fundamental
tenets of a fair trial, the right against self-incrimination.’
At first blush this would seem self evident so that
whether such evidence was admissible or not would depend on the
second leg of
the inquiry, ie whether its admission would be
detrimental to the administration of justice. Subsequently, however,
the Canadian
Supreme Court has adopted a stricter approach with
regard to the admission of evidence affecting the fairness of the
trial. In
Burlingham v The Queen
(1995) 28 CRR (2
nd
)
244 evidence of the discovery of the murder weapon at the bottom of a
frozen river was excluded on the basis that its discovery
resulted
from a compelled disclosure made by the accused in circumstances
involving a breach of the Charter. Iacobucci J, with
whom the
majority of the court concurred, expressed the view that the mere
fact that impugned evidence is classified as either
real or
conscriptive should not in and of itself be determinative and that
whether independently ‘existing evidence’ affected
the fairness
of the trial or not depended on whether it would have been found
without the compelled assistance of the accused (at
262 to 263). In
the
Burlingham
case the murder weapon would clearly not have
been discovered without such assistance. It was accordingly held that
evidence of
its discovery would render the trial unfair.
[8] A rigid application of this approach could lead to
some startling results. I would imagine, for example, that most fair
minded
people, certainly in South Africa with its high crime rate,
would baulk at the idea of a murderer being acquitted because
evidence
of the discovery of the victim’s concealed body would
render the trial unfair. In
S v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA
642
CC it was said at 652A-D that the right to a fair trial ‘embraces
a concept of substantive fairness’ and that it is for the
criminal
courts hearing criminal trials or appeals ‘to give content’ to
the notions of basic fairness and justice which underpin
a fair
trial. With regard, in particular, to derivative evidence arising
from compelled self-incrimination, Ackermann J, in the
context of the
interim Constitution, had the following to say in
Ferreira v Levin
NO and Others
;
Vryenhoek v Powell NO and Others, supra,
at para 153:
‘
A compulsion to give self-incriminating evidence,
coupled with only a direct use immunity along the lines indicated
above, and subject
to a judicial discretion to exclude derivative
evidence at the criminal trial, would not negate the essential
content of …..
the s 25(3) right to a fair trial. …… As far as
s 25(3) is concerned, the trial Judge is obliged to ensure a “fair
trial”,
if necessary by his or her discretion to exclude, in the
appropriate case, derivative evidence. Ultimately this is a question
of
fairness to the accused and is an issue which has to be decided on
the facts of each case. The trial Judge is the person best placed
to
take that decision. The development of the law of evidence in this
regard is a matter for the Supreme Court. The essential content
of
the right is therefore not even touched.’
(See also
Key v Attorney-General, Cape Provincial
Division, and Another
1996 (4) 187 (CC) at 196A-C (para 13).) It
follows that the Constitutional Court has refrained from laying down
hard and fast rules
as to the effect of derivative evidence on the
fairness of a criminal trial.
[9] Reverting to the
Burlington
decision, its
rationale appears to have been that if conscriptive evidence renders
a trial unfair, evidence derived from it should
likewise render the
trial unfair. The reasoning being presumably that because the former
only comes into existence by reason of
the infringement, the latter
being derived from it, should similarly be seen as affecting the
fairness of the trial. But implicit
in this reasoning is the
requirement that the original infringement involves the creation of
evidence that would otherwise not
have existed, ie an infringement
involving self-incrimination. If it does not, then evidence derived
from it similarly will not
affect the fairness of the trial. Whether
in such circumstances the derivative evidence is to be excluded or
not, will then depend
on the answer to the second leg of the inquiry,
ie whether its admission would be detrimental to the administration
of justice.
Subsequently, in
R v Stillman
(1997) 42 CRR (2
nd
)
189 a distinction was drawn between conscriptive and non-conscriptive
evidence. At 219 Cory J said the following:
‘
If the accused was not compelled to participate in
the creation or discovery of the evidence (ie, the evidence existed
independently
of the
Charter
breach in a form useable by the
state), the evidence will be classified as non-conscriptive. The
admission of evidence which falls
into this category will, as stated
in
Collins
,
supra
, rarely operate to render the trial
unfair. If the evidence has been classified as non-conscriptive the
court should move on to
consider the second and third of the
Collins
factors, namely, the seriousness of the
Charter
violation and
the effect of the exclusion on the repute of the administration of
justice.’
However, Cory J went on to include in the category of
conscriptive evidence, evidence which was real evidence in the sense
that
it had an independent existence but which, as he put it, came
into existence ‘in a useable form’ in breach of the Canadian
Charter. The issue in that case was whether evidence relating to the
analysis of hair samples and teeth impressions forcibly taken

rendered the trial unfair. The admission of real evidence, depending
on the circumstances, may well have a detrimental effect on
the
administration of justice. But save in circumstances involving some
form of compulsion or, on the strength of
Burlingham
’s case,
when derived from an infringement giving rise to self-incriminatory
evidence which would not otherwise have existed,
it is difficult to
see how real evidence having an independent existence can ever be
said to render the trial unfair. (
Cf
S v M
2002 (2)
SACR 411
(SCA) at 432 (para 31).) The real evidence admitted by the
Court
a quo
in the present case was the discovery of the money
concealed in the roof. That discovery would not have been made but
for the monitoring
of the telephone conversation. But the telephone
conversation would have taken place whether it was monitored or not.
It was not
created by the infringement, nor was there any question of
compulsion. A conversation in such circumstances may result in a form

of` self-incrimination, but no more so than any other conduct of an
accused subsequent to the commission of the offence which may
point
to the latter’s guilt. To hold that the derivative evidence, ie the
discovery of the money in the roof, would render the
trial unfair in
such circumstances would be to extend the application of the
reasoning in the
Burlingham
case simply too far. In any event,
such an approach, if adopted as an invariable rule, would be in
conflict with the decisions
of the Constitutional Court referred to
in para 124 above. I am satisfied therefore that the admission of the
evidence of the discovery
of the money in the roof did not in any way
render accused 10’s trial unfair.
[10] I turn to the second leg of the inquiry, namely
whether the evidence would be detrimental to the administration of
justice.
This involves essentially a value judgment. In
S v Mphala
and Another
1998 (1) SACR 654
(W) at 657g-h, Cloete J formulated
the approach to be adopted as follows:
‘
So far as the administration of justice is concerned,
there must be a balance between, on the one hand, respect
(particularly by
law enforcement agencies) for the Bill of Rights
and, on the other, respect (particularly by the man in the street)
for the judicial
process. Overemphasis of the former would lead to
acquittals on what would be perceived by the public as
technicalities, whilst
overemphasis of the latter would lead at best
to a dilution of the Bill of Rights and at worst to its provisions
being negated.’
In
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC) at 430I -432C (paras 87 - 88) Chaskalson P warned of the dangers
of relying on public opinion. That was in the context of
the
constitutionality of the death penalty. It seems to me, however, that
the very nature of the second leg of the inquiry postulated
in s
35(5) of the Constitution contemplates a reference to public opinion.
It must, at the least, therefore constitute an important
element of
the inquiry. In
R v Collins
,
supra
, at 524 the test
adopted was that of ‘the reasonable man, dispassionate and fully
apprised of the circumstances of the case.’
Although the inquiry in
Canada is somewhat different,
ie
whether the admission of the
infringing evidence ‘would bring the administration of justice into
disrepute’, the test adopted
strikes me as more apt than a simple
reference to public opinion, subject as it frequently is to ‘the
shifting winds of passion’.
The only refinement I would add is that
the reference must be understood as not to an individual but to the
reasonable and dispassionate
members of society.
[11] In some cases the admission of derivative evidence,
however relevant and vital for ascertaining the truth, would be
undeniably
detrimental to the administration of justice,
eg
derivative evidence obtained as a result of torture. At the other end
of the scale the refusal to admit derivative evidence on
the grounds
of some technical infringement of little consequence, would be no
less detrimental to the administration of justice.
As always, the
difficulty lies in the grey area between these two extremes. The
monitoring of a private telephone call is a serious
infringement of
the right to privacy. Nonetheless, in the interest of solving serious
crime or protecting the security of the State,
the need to monitor
telephone communications in limited circumstances is recognised not
only in South Africa, (see the Interception
and Monitoring
Prohibition Act 127 of 1992) but also in countries such as the United
States and Canada (see
Naidoo
’s case,
supra
, at
503b-d).
[12] The robbery in the instant case was one of the
biggest, if not the biggest, ever committed in South Africa. It was
highly organised
and involved a daring plan to penetrate a series of
security barriers which most would regard as impregnable. In the
event, over
R31 million was taken. The manner in which the robbers
gained access to the money gave rise to a suspicion that they had
enjoyed
the assistance of certain employees of the SBV. But more was
required than mere suspicion to bring the culprits to book. One lead

which presented itself was the observation by employees at the SBV
that certain of the robbers had used mobile telephones in the
course
of the robbery. By reason of the lateness of the hour and the area in
which these mobile telephones were used, the police
were able to
ascertain the identity of the subscribers from the service provider.
(The admissibility of this evidence was challenged
in the Court
a
quo
, but not in this Court.) Once this was known and other
information obtained, the next step was to apply for a direction
authorising
the interception of certain telecommunication lines in
terms of s 2(2) of the Interception and Monitoring Prohibition Act.
Because,
no doubt, of the magnitude of the crime a number of senior
policemen were engaged to help solve it, with different policemen
being
allocated to different tasks.
[13] The task of attending to the direction referred to
above was allocated to Captain Van der Vyver of the Crime
Intelligence Unit.
He readily conceded in evidence that his affidavit
contained a number of ‘mistakes’ and that he had been severely
criticised
by the judge in the
Naidoo
case,
supra
. He
insisted, however, that he had not consciously intended to mislead
the judge to whom the application was made and pointed out
that the
judge in the
Naidoo
case accepted this to be so. It would seem
therefore that the thrust of the criticism directed at his affidavit
related essentially
to the use of imprecise language and poor
draftsmanship rather than guile. This was illustrated in the course
of Van der Vyver’s
cross-examination in the Court below. One of his
‘mistakes’ was put to him by counsel who presumably singled it
out as being
one of the more serious ‘mistakes’ contained in the
affidavit. It was this: information to the effect that the money was
to
be moved out of the province was stated in the affidavit to be
‘reliable information from a reliable source’; the alleged
‘reliability’,
however, was based on the fact that tip-offs to
the same effect had been received from more than one anonymous
source. In other
words, the one corroborated the other. ‘Reliability’
in this context is, of course, largely a question of degree. What is
regarded
as reliable by one might not be regarded as reliable by
another. Had the affidavit set out with precision the true nature of
the
source rather than contain the somewhat vague and non-specific
phrase ‘reliable information from a reliable source’, there could

be no criticism. But had it done so, I am inclined to think that it
would not have made any difference to the outcome of the application.
[14] Be all that as it may, neither Eva nor Havenga
played any part in this aspect of the investigation; neither had
sight of the
application and the affidavits made in support of it
until shortly before the trial of the two Naidoos. At all times while
listening
to the tape recordings of the telephone conversations and
acting on the information obtained, they were
bona fide
in
their belief that a valid monitoring order had been granted
authorising them to proceed as they did. Given the magnitude and
the
circumstances of the robbery, that belief can not be categorised as
unreasonable.
[15] As a result of the action taken by Eva and Havenga
over R5 million of the stolen money was recovered. This does not mean
that
the end justified the means. But it does show that the need for
the police to have acted swiftly and expeditiously was justified.
It
is no doubt true that once the identity of the subscribers was known
the police could have placed the suspects under surveillance
or
searched their homes rather than apply for a direction to monitor
their telephone calls. But whether the former course would
have
produced results is doubtful. It is unlikely that a series of
house-searches would have helped. After the first, the robbers
and
their accomplices would soon have become aware of what the police
were about. Even if the police had the resources to implement
a
simultaneous search of the houses of all the suspects, it would have
been difficult to organise such an operation without the
suspects
becoming aware of it. The investigating officer realised very soon
that information was being leaked from the ranks of
the police to the
suspects. Indeed, it was for this reason that the unit that
‘penetrated’ the house of accused 10 on the 22
August 1996
assembled at a rugby stadium rather than at the police station. It is
true that apart from accused 10, and for that
matter the two Naidoos,
the arrest and conviction of the robbers and their accomplices was
not brought about as a result of information
gleaned from the
telephone monitoring. But their arrest was largely fortuitous. Long
after the acquittal of the two Naidoos one
of the robbers, Mayadevan,
was arrested on some other charge. While in custody he ultimately
decided to make a statement in which
he disclosed his part, and that
of the others, in the robbery. It was largely this, coupled with a
forensic examination of the
financial affairs of some of the
suspects, that resulted in a successful prosecution. But for the
fortuitous event referred to
above, the robbers and those who
subsequently helped to conceal their crime would probably have
escaped scot-free.
[16] To sum up, therefore, the monitoring of the
telephone calls in breach of the Interception and Monitoring
Prohibition Act was
a serious violation of accused 10’s right to
privacy and the inaccuracies contained in the application for a
direction in terms
of that Act are deserving of censure. On the other
hand, Eva and Havenga acted in the
bona fide
and reasonable
belief that they were authorised to do what they did. At the time,
the following up on the use of the mobile phones
and the tapping of
the lines, if perhaps not the only possible course, was certainly the
most expeditious course to solve one of
the most successful and
daring robberies in South Africa. Unlike the
Naidoo
case, the
evidence sought to be adduced was not the content of what was said
but the subsequent discovery of the money. The fact
that the money
was concealed in the roof is a fact that existed independently of the
violation and was not created by it. The admission
of the evidence
did not affect the fairness of the trial. Although accused 10 was in
effect charged with the crime of being an
accessory after the fact
rather than with participation in the robbery itself, her crime
remains a serious one. The evidence in
question was essential to
substantiate the charge. It was common cause that without it, the
conviction could not stand; with it,
the conviction was correct and
the appeal had to fail. This means in effect that if the evidence
were excluded a guilty person
would go free.
[17] Whether the admission of the evidence and the
resultant conviction of accused 10 would be detrimental to the
administration
of justice involves first, I think, an inquiry whether
an acquittal would be likely to bring about a loss of respect for the
judicial
process in the eyes of reasonable and dispassionate members
of society and, conversely, whether a conviction would be likely to

result in a loss of respect for the Bill of Rights. This, of course,
involves a weighing up of the various factors referred to
above. But
these cannot simply be considered in isolation. They must, I think,
be looked at in the light of the high crime rate
in South Africa and
in particular the prevalence of armed robberies, many of which result
in no arrests. (
Cf Ferreira v Levin and Others
,
supra
at 1077D.) In all the circumstances, it seems to me that the esteem
with which the Bill of Rights is held, or ought to be held,
is
unlikely to be lowered in the eyes of those members of society to
which I have referred in the event of a conviction. On the
contrary,
it is more likely that the exclusion of the evidence and a resultant
acquittal would result in a loss of respect for
not only the judicial
process but the Bill of Rights itself. Finally, I can see no basis in
the circumstances of the present case
for departing from what I
perceive to be the way in which reasonable and dispassionate members
of society would see the administration
of justice being affected by
the admission or otherwise of the evidence in question.
[18] It follows that in my view the evidence of the
discovery of the money in accused 10’s roof was correctly admitted.
It follows,
too, that I would dismiss accused 10’s appeal.
D
G SCOTT
JUDGE OF APPEAL