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[2019] ZASCA 22
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Viljoen v S (663/2018) [2019] ZASCA 22 (27 March 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
No: 663/2018
In
the matter between:
NICO
VILJOEN
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Viljoen v S
(663/18)
[2019] ZASCA 22
(27 March 2019)
Coram:
Navsa AP, Van Der Merwe and Schippers JJA
Heard:
14 March 2019
Delivered:
27 March 2019
Summary:
Criminal Law and Procedure
–
purchasing
unpolished diamonds in contravention of s 20 of the Diamonds Act 56
of 1956 – admissibility of evidence –
whether police trap
went beyond providing an opportunity to commit offences –
s
252A(1)
of the
Criminal Procedure Act 51 of 1977
– evidence
admissible – appeal dismissed.
ORDER
On appeal from:
Northern Cape Division of the High Court, Kimberley
(Lacock and Williams JJ sitting as court of appeal):
The appeal is dismissed.
JUDGMENT
Schippers
JA (Navsa AP and Van Der Merwe JA concurring):
[1]
The appellant was convicted in the Port Nolloth
Regional Court on three counts of purchasing unpolished diamonds, in
contravention
of s 20 of the Diamonds Act 56 of 1956. Counts 1
to 3 were taken together for the purpose of sentence and he was
sentenced
to three years’ direct imprisonment; and a fine of
R160 000 or three years’ imprisonment, wholly suspended for a
period
of four years on condition that he was not found guilty of a
contravention of s 20 of the Diamonds Act, committed during the
period
of suspension.
[2]
An appeal to the Northern Cape Division,
Kimberley, against the appellant’s conviction was dismissed,
but his appeal against
sentence resulted in a reduction of the
sentence of three years’ direct imprisonment to 12 months’
direct imprisonment.
In June 2012, prior to the coming into force of
the
Superior Courts Act 10 of 2013
, the court a quo granted the
appellant leave to appeal to this court.
[3]
The material facts can be shortly stated. In May
2004 the police launched a project known as Operation 2081 to stem
the illicit
trade in unpolished diamonds in the Western Cape, Gauteng
and the Northern Cape. To that end they made use of traps and
undercover
operations authorised by the Director of Public
Prosecutions under s 252A of the Criminal Procedure Act 51 of 1977
(the CPA). When
the operation was terminated in September 2006, 31
unpolished State diamonds with a value of some R600 000 had been
sold to
identified suspects and 17 persons had been arrested,
including the appellant.
[4]
The appellant bought unpolished diamonds from
Inspector Leon Ferris (Ferris), a police trap, on three occasions at
Scotia Inn, a
hotel in Port Nolloth (the hotel), owned by the
appellant. These sales were digitally recorded on audio-visual
equipment.
The recordings were viewed by the
trial court. The defence did not dispute the contents of the
recordings and agreed that they were
a true version of what took
place.
[5]
The appellant’s co-accused, Ms Esmeralda
Losper (Losper), who introduced him to Ferris, was present only
during the first
sale on 21 July 2005. Before they went to the hotel,
Ferris handed Losper an unpolished diamond (valued at R19 735,
which
Ferris was instructed to sell at a minimum price of R10 000)
at her work. She examined it and asked what the price was. Ferris
replied R20 000. She arranged to meet the appellant at the hotel
where he paid Ferris R12 000 for the diamond, after
he had told
Ferris that it contained a flaw. Ferris paid Losper a ‘commission’
of R1000 for the introduction. As they
left the hotel, the appellant
told Ferris to contact him or Losper if he had more diamonds. On 18
August 2005 Ferris offered two
unpolished diamonds to the appellant
for R27 000. Ferris was instructed to sell them for not less
than R13 000. They
settled on a price of R20 000 after the
appellant
‛
showed
’
Ferris
that the diamonds were flawed. The third sale was concluded on 2
November 2005. Ferris offered an unpolished diamond for
sale at
R29 000 (he was instructed to sell it for not less than
R15 000). The appellant paid R25 000 for the diamond,
after he
pointed out what he said were certain defects in its colour and
quality.
[6]
Subsequently, the appellant was arrested and
pleaded not guilty to the charges. He alleged that, contrary to the
provisions of s
252A of the CPA, the conduct of Ferris went beyond
providing an opportunity to commit the offences, on the following
grounds. Ferris
had an inappropriate love relationship with Losper in
order to mislead her and get close to the appellant. The police
trap’s
offer to sell the diamonds was an irresistible
temptation. The sales were concluded rapidly and the appellant had no
opportunity
to reflect upon or withdraw from them.
[7]
Ferris denied all this in the ensuing
trial-within-a-trial to determine the admissibility of his evidence.
He was subjected to detailed
cross-examination. Neither the appellant
nor Losper testified, nor presented any evidence to contradict
Ferris’ version.
The magistrate found that the appellant’s
allegations were without foundation and ruled that Ferris’
evidence was admissible.
Subsequently, both the appellant and Losper
closed their cases without adducing any evidence.
[8]
Before us the appellant’s attorney
submitted that the State had failed to prove that Ferris went no
further than creating
an opportunity to commit the offences. It was
submitted that the evidence against the appellant was obtained
improperly and unfairly,
which rendered the trial unfair. A further
ground of appeal, namely that the State had not proved that the items
which the appellant
purchased were indeed unpolished diamonds, was
abandoned, and rightly so.
[9]
Section 252A(1) of the CPA reads:
‘
Any
law enforcement officer, official of the State or any other person
authorised thereto for such purpose (hereinafter referred
to in this
section as an official or his or her agent) may make use of a trap or
engage in an undercover operation in order to
detect, investigate or
uncover the commission of an offence, or to prevent the commission of
any offence, and the evidence so obtained
shall be admissible if that
conduct does not go beyond providing an opportunity to commit an
offence: Provided that where the conduct
goes beyond providing an
opportunity to commit an offence a court may admit evidence so
obtained subject to subsection (3).’
[10]
In
Kotzè
,
[1]
this court said:
‘
The section lays
down two approaches to the admissibility of evidence obtained as a
result of the use of a trap. Evidence is automatically
admissible if
the conduct of the person concerned goes no further than providing an
opportunity to commit the offence. If the conduct
goes beyond that
the court must enquire into the methods by which the evidence was
obtained and the impact that its admission would
have on the fairness
of the trial and the administration of justice in order to determine
whether it should be admitted.’
[11]
A court is
obliged to consider the factors listed in s 252A(2)
[2]
in considering whether conduct goes beyond providing an opportunity
to commit an offence, which is a factual inquiry.
[3]
These factors must be considered holistically and weighed
cumulatively.
[4]
[12]
When the applicable factors are considered in the
light of the evidence, it cannot be said that Ferris’ conduct
went beyond
providing an opportunity to commit the offences. Ferris
did not contact the appellant to do the first deal. In March 2005
Losper
told Ferris that she knew that he was a diamond smuggler,
asked him to bring her unpolished diamonds and said that her buyers
were
the Viljoen’s of the hotel. She arranged the first
transaction that led Ferris to the appellant. For these reasons, the
allegation
that Ferris had an inappropriate relationship with Losper
which he exploited in order to entrap the appellant, has no merit. In
any event, it is insupportable on the evidence.
[13]
After the first sale, the appellant himself
invited Ferris to do more deals, and the second and third sales took
place pursuant
to that invitation. The recordings of the transactions
showed that both the appellant and Losper did not hesitate to
participate
in the offences; on the contrary they did so eagerly. The
undisputed evidence was that the appellant was greedy (‘uitgevreet’)
for diamonds. During each sale, which was concluded in an apparently
calm and relaxed environment, the appellant left the room
to examine
the diamonds, returned and pointed out flaws in the diamonds to
Ferris. Then the price was negotiated. There was time
for
conversation – the appellant asked Ferris where he lived and
worked and even whether he was a police officer.
[14]
The contention that the transactions were
concluded rapidly, that the appellant had no time for reflection or
to withdraw from them
and that this translated into the transactions
falling foul of the relevant provisions of the CPA, has no
foundation. Ferris testified
that when the appellant left the room to
examine the diamonds, he could have telephoned the police. He
could also have withdrawn
from the second sale when he met Ferris at
a bank before they went to the hotel. That evidence was not
contradicted. And the appellant
concluded the second and third sales
despite his suspicion that Ferris was a police officer.
[15]
The evidence shows that the appellant was
well-informed concerning sales of unpolished diamonds, particularly
as regards colour,
flaws, quality and price. The submission that
Ferris induced the appellant to buy the diamonds because they were
sold below their
market value, has no merit. This was not a case
where the trap fixed a low price to induce a sale. Instead, in each
sale the asking
price was close to the market value of the diamond.
In the first sale the asking price was R20 000 and the market value
of the
diamond, R19 735. In the second sale the asking price was
R27 000 and the diamonds were sold for R20 000. In the
third sale the asking price was R29 000 and the appellant paid
R25 000. And in the second and third sales the appellant
paid
prices way above the minimum that Ferris was allowed to accept for
the diamonds.
[16]
For these
reasons, the appeal against conviction must fail. Regarding sentence,
it is trite that the inquiry in an appeal against
sentence is not
whether the sentence was right or wrong, but whether the court in
imposing it exercised its discretion properly
and judicially.
[5]
Based on the evidence, the court a quo concluded that direct
imprisonment was the only appropriate sentence as illicit diamond
transactions remained serious offences in the Northern Cape, and it
was extremely difficult to apprehend offenders. That conclusion
and
the resultant sentence cannot be faulted.
[17]
In the result the appeal is dismissed.
_______________________
A
Schippers
Judge
of Appeal
APPEARANCES
For
Appellant: W Booth
William
Booth Attorneys-at-Law, Claremont
Hanno
Bekker Attorneys, Bloemfontein
For
Respondent: J J Cloete
Director
of Public Prosecutions, Kimberley
Director
of Public Prosecutions, Bloemfontein
[1]
S v Kotzè
2010 (1) SACR 100
para 23.
[2]
Section 252A(2)
of the
Criminal Procedure Act 51 of 1977
reads:
‘
(2) In considering the
question whether the conduct goes beyond providing an opportunity to
commit an offence, the court shall
have regard to the following
factors:
(a)
Whether, prior to the
setting of a trap or the use of an undercover operation, approval,
if it was required, was obtained from
the attorney-general to engage
such investigation methods and the extent to which the instructions
guidelines issued by the attorney-general
were adhered to;
(b)
the nature of the
offence under investigation, including–
(i) whether the security of the
State, the safety of the public, the maintenance of public order or
the national economy is seriously
threatened thereby;
(ii) the prevalence of the offence in
the area concerned; and
(iii) the seriousness of such
offence;
(c)
the availability of
other techniques for the detection, investigation or uncovering of
the commission of the offence or the prevention
thereof in the
particular circumstances of the case and in the area concerned;
(d)
whether an average
person who was in the position of the accused, would have been
induced into the commission of an offence by
the kind of conduct
employed by the official or his or her agent concerned;
(e)
the degree of
persistence and number of attempts made by the official or his or
her agent before the accused succumbed and committed
the offence;
(f)
the type of
inducement used, including the degree of deceit, trickery,
misrepresentation or reward;
(g)
the timing of the
conduct, in particular whether the official or his or her agent
instigated the commission of the offence or
became involved in an
existing unlawful activity;
(h)
whether the conduct
involved an exploitation of human characteristics such as emotions,
sympathy or friendship or an exploitation
of the accused's personal,
professional or economic circumstances in order to increase the
probability of the commission of the
offence;
(i)
whether the
official or his or her agent has exploited a particular
vulnerability of the accused such as a mental handicap or
a
substance addiction;
(j)
the proportionality
between the involvement of the official or his or her agent as
compared to that of the accused, including
an assessment of the
extent of the harm caused or risked by the official or his or her
agent as compared to that of the accused,
and the commission of any
illegal acts by the official or his or her agent;
(k)
any threats,
implied or expressed, by the official or his or her agent against
the accused;
(l)
whether, before the
trap was set or the undercover operation was used, there existed any
suspicion, entertained upon reasonable
grounds, that the accused had
committed an offence similar to that to which the charge relates;
(m)
whether the
official or his or her agent acted in good or bad faith; or
(n)
any other factor
which in the opinion of the court has a bearing on the question.’
[3]
Kotzè
fn 1 para 25.
[4]
Kotzè
fn 1 para 27.
[5]
S v Pillay
1977 (4) SA 531
(A) at 535E-F, affirmed in
Mpofu
v Minister for Justice and Constitutional Development
2013 (2) SACR 407
(CC) para 42.