Savoi and Others v National Director of Public Prosecutions and Another (CCT 71/13) [2014] ZACC 5; 2014 (5) BCLR 606 (CC); 2014 (1) SACR 545 (CC); 2014 (5) SA 317 (CC) (20 March 2014)

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[2014] ZACC 5
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Savoi and Others v National Director of Public Prosecutions and Another (CCT 71/13) [2014] ZACC 5; 2014 (5) BCLR 606 (CC); 2014 (1) SACR 545 (CC); 2014 (5) SA 317 (CC) (20 March 2014)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 71/13
In
the matter between:
GASTON
SAVOI
...........................................................................................
First
Applicant
INTAKA
HOLDINGS (PTY)
LTD
.............................................................
Second
Applicant
FERNANDO
PRADERI
................................................................................
Third Applicant
and
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS
.........................................................................................
First Respondent
MINISTER
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
...........,.....................................
Second
Respondent
Neutral
citation:
Savoi and Others v
National Director of Public Prosecutions and Another
[2014] ZACC 5
Coram:
Moseneke ACJ, Skweyiya ADCJ, Cameron J,
Dambuza AJ, Froneman J, Jafta J, Madlanga J,
Mhlantla AJ,
Nkabinde J and Zondo J
Heard
on:
11 November 2013
Decided
on:
20 March 2014
ORDER
On
application for confirmation of a declaration of constitutional
invalidity and appeal against the order of the
KwaZulu-Natal
High Court, Pietermaritzburg (Madondo J
):
1.
Leave to appeal and cross-appeal is
granted.
2.
The applicants’ appeal is dismissed.
3.
The applicants’ challenge to the
constitutional validity of—
(a)
the definitions of “pattern of racketeering activity” and
“enterprise” in section 1 of the Prevention
of Organised
Crime Act 121 of 1998 (the Act);
(b)
section 2(1)(a), (b), (c), (d), (e), (f) and (g) of the Act;
(c)
section 2(2) of the Act; and
(d)
Chapter 2 of the Act,fails.
4.
The respondents’ cross-appeal is
upheld.
5.
The High Court’s order of
constitutional invalidity is not confirmed.
6.
No order is made as to costs.
JUDGMENT
MADLANGA J
(
Moseneke ACJ, Skweyiya ADCJ,
Cameron J, Dambuza AJ, Froneman J, Jafta J,
Mhlantla AJ, Nkabinde J
and Zondo J concurring
):
Introduction
[1]
This
application concerns the Prevention of Organised Crime Act
[1]
(POCA), about which Jafta J remarked as follows in
Elran
:
“
At
the outset we must remind ourselves of the nature of the legislation
we are concerned with.  POCA was enacted in pursuit
of
legitimate and important government purposes of combating serious
organised crime and preventing criminals from benefiting from
the
proceeds of their crimes.”
[2]
[2]
The
KwaZulu-Natal High Court, Pietermaritzburg (High Court) declared
section 2(1)(a)(ii), (b)(ii), (c)(ii), and (f)
[3]
of POCA constitutionally invalid only to the extent that each of the
paragraphs of the subsection contains the words “ought

reasonably to have known”.  This is an application to
confirm that declaration,
[4]
coupled with what is, in essence, an application for leave to appeal
to the extent that the High Court refused to make other declarations

of constitutional invalidity that the applicants
[5]
sought.
[6]
Stated broadly,
the applicants’ challenge is that the impugned provisions
[7]
are void for vagueness; overbroad; retrospective; and violate the
fair trial rights of an accused contained in section 35 of the

Constitution.  The respondents
[8]
oppose the confirmation of the declaration of constitutional
invalidity and seek leave to cross-appeal the part of the High
Court’s
order that declared part of section 2(1) of POCA
constitutionally invalid.
Background
[3]
The applicants are charged with
various offences which include racketeering, fraud, corruption and
money laundering before the KwaZulu˗Natal
High Court and in the
Northern Cape.  The charges relate to alleged unlawful conduct
in connection with tenders for the procurement
of water purification
plants, gas generation systems and dialysis machines.
[4]
The prosecution has been stayed
pending the finalisation of the applicants’ constitutional
challenge.  In that challenge
the applicants sought –
before the High Court – an order declaring the definitions of
“pattern of racketeering
activity” and “enterprise”
in section 1 and the entire Chapter 2 of POCA unconstitutional and
invalid on the
grounds that—
(a)
the
definition of “pattern of racketeering activity”
[9]
in section 1 is void for vagueness and thus unconstitutional;
(b)
the
definition of “enterprise”
[10]
in section 1 of POCA is overbroad and unconstitutional;
[11]
(c)
section 2(1)(a), (b), (c), (d), (e), (f),
and (g) of POCA, which is predicated on the definitions of “pattern
of racketeering
activity” and “enterprise”, is
consequently void for vagueness and constitutionally invalid;
(d)
section
2(2) of POCA is unconstitutional and invalid because it violates the
fair trial rights of an accused in section 35 of the

Constitution;
[12]
and
(e)
Chapter 2 of POCA is unconstitutional in
its entirety because it operates retrospectively in violation of
section 35(3)(l) of the
Constitution and the rule of law.
[5]
The High Court did not uphold a
single one of these challenges.  What it did instead was to
declare paragraphs (a)(ii), (b)(ii),
(c)(ii) and (f) of section 2(1)
of POCA unconstitutional and invalid to the extent only that they
contained the words “ought
reasonably to have known” in
each of the paragraphs.  The effect of this declaration was that
these words should be
struck out.  Let me pause and emphasise
that the applicants had not asked for this.  Then followed the
confirmation proceedings
and the applications for leave to appeal and
cross-appeal.
[6]
In
their submissions in this Court
[13]
the respondents repeatedly bemoaned the fact that the applicants
brought this challenge without indicating, by reference to the

charges they are facing, how the impugned provisions are
constitutionally invalid: once armed with the indictment the
applicants
simply rushed to the High Court.  The respondents
contend that this makes the application abstract.
[7]
The issues that emerge from all this
are—
(a)
the abstract nature of the application;
(b)
the definitional challenge;
(c)
the procedural challenge;
(d)
retrospectivity; and
(e)
the High Court’s declaration of
invalidity.
Leave
to appeal and cross-appeal
[8]
Before
dealing with the issues, let me dispose of the two applications for
leave.  Both relate to obvious constitutional issues
of import.
From what follows it will become clear that an interpretation of POCA
is vital.  The question whether leave
to appeal should be
granted depends upon whether doing so is in the interests of
justice.
[14]
I take the
view that it is in the interests of justice to grant both
applications for leave.  The basis for this view
will be
apparent as I deal with the issues, which I proceed to do.
Abstract
nature of the application
[9]
The
respondents characterise this application as an abstract challenge
because the applicants elected not to place a particular
set of facts
before the Court.  Whatever the true nature of this application,
there is no question that the applicants do
have standing.  In
Ferreira
[15]
Chaskalson P for the majority said the following:
“
In
the present case the applicants allege that section 417(2)(b) is
inconsistent with section 25(3) of the Constitution.  This
is a
matter which this Court has jurisdiction to enquire into, and it can
do so in the present case if the applicants have standing
to seek
such an order from it.
Ordinarily
a person whose rights are directly affected by an invalid law in a
manner adverse to such person, has standing to challenge
the validity
of that law in the courts.
There can be no question that the applicants have such an interest in
the present case.  Their right to refuse to answer
questions
that incriminate them is in issue and they seek to vindicate that
right by challenging the only obstacle to their assertion
of it.
It was argued, however, that this does not apply to the present
applicants because section 7(4) of the Constitution
limits
constitutional challenges to persons whose constitutional rights have
been impaired or threatened.  And, so the argument
went, this
could occur only if they are charged with a criminal offence and the
evidence given by them at the enquiry is tendered
against them at the
criminal trial.”
[16]
(Emphasis added and footnote omitted.)
[10]
He went on to say:
“
Whilst
it is important that this Court should not be required to deal with
abstract or hypothetical issues, and should devote its
scarce
resources to issues that are properly before it, I can see no good
reason for adopting a narrow approach to the issue of
standing in
constitutional cases.  On the contrary, it is my view that we
should rather adopt a broad approach to standing.
This would be
consistent with the mandate given to this Court to uphold the
Constitution and would serve to ensure that constitutional
rights
enjoy the full measure of the protection to which they are
entitled.”
[17]
[11]
The same applies to this case; the
applicants are entitled to challenge the constitutional validity of
the Act under which they
are currently charged.  The impugned
provisions are pertinent to the impending criminal proceedings.  The
applicants
contend, amongst others, that the definitions of the very
offences that they are charged with are so vague as to be
unintelligible.
Assuming for a moment that there is substance
in that, it would be unfair to expect the applicants to plead to
charges the
inner and outer contours of which they have no idea.
[12]
The broadly framed provisions on
standing are an indication that the Constitution is consciously
expansive so as to promote, rather
than unduly restrict, the
protection of constitutional rights.  Unless an applicant’s
claim to standing is truly unmeritorious,
courts should be slow to
shut the door on them. In my view, the present matter deserves to be
entertained.
[13]
So, the applicants plainly have
standing to bring this challenge.  This does not, however, make
it irrelevant that this challenge
is brought in the abstract.  Courts
generally treat abstract challenges with disfavour.  And rightly
so.  Will hearsay,
similar facts or evidence of previous
convictions be led at the applicants’ trial?  At this
stage we simply do not know.
Abstract challenges ask courts to
peer into the future, and in doing so they stretch the limits of
judicial competence.  For
that reason, the applicants in this
case bear a heavy burden – that of showing that the provisions
they seek to impugn are
constitutionally unsound merely on their
face.  The analysis that follows demonstrates just how heavy
that burden is.
Definitional
challenge
[14]
This
challenge relates to the definitions of “pattern of
racketeering activity”
[18]
and “enterprise”
[19]
in section 1 of POCA.  By extension it also relates to
section 2(1)(a) to (g) of POCA which, in creating certain
offences,
relies on those definitions.  The challenge must be
viewed in context.  Part of that context is the purpose of POCA.
In
Mohamed
NO
[20]
this Court stated the purpose thus:
“
The
Act’s overall purpose can be gathered from its long title and
preamble and summarised as follows: the rapid growth of
organised
crime, money laundering, criminal gang activities and racketeering
threatens the rights of all in the Republic, presents
a danger to
public order, safety and stability, and threatens economic stability.
This is also a serious international problem
and has been
identified as an international security threat.  South African
common and statutory law fail to deal adequately
with this problem
because of its rapid escalation and because it is often impossible to
bring the leaders of organised crime to
book, in view of the fact
that they invariably ensure that they are far removed from the overt
criminal activity involved.
The law has also failed to keep
pace with international measures aimed at dealing effectively with
organised crime, money laundering
and criminal gang activities. Hence
the need for the measures embodied in the Act.”
[21]
[15]
POCA seeks to ensure that the
criminal justice system reaches as far and wide as possible in order
to deal with the scourge of organised
crime in as many of its
manifestations as possible.  The question is whether it does so
in a manner that is constitutionally
impermissible.  Insofar as
it relates to “pattern of racketeering activity” the
contention is that the definition
is void for vagueness.  The
definition of “enterprise” is said to be overbroad and,
therefore, unconstitutional.
The applicants make other related
contentions.
[16]
In
Affordable
Medicines
[22]
Ngcobo J said:
“
The
doctrine of vagueness is founded on the rule of law, which . . . is a
foundational value of our constitutional democracy.
It requires
that laws must be written in a clear and accessible manner.
What is required is reasonable certainty and not
perfect lucidity.
The doctrine of vagueness does not require absolute certainty of
laws.  The law must indicate with
reasonable certainty to those
who are bound by it what is required of them so that they may
regulate their conduct accordingly.”
[23]
(Footnotes omitted.)
[17]
There
is some intrinsic worth in laws being framed in general terms.  On
this the Supreme Court of Canada said that “laws
that are
framed in general terms may be better suited to the achievement of
their objectives”.
[24]
[18]
The
applicants argue that the factors that affect the requirements for
establishing a pattern of racketeering activity and the underlying

predicate offences are so numerous and varied that the entire concept
of a “pattern of racketeering” is rendered vague.

Let us look at those factors.  Planning may be discrete as to
the individual offences referred to in the definition.
That is,
each offence is planned as an individual offence.  Likewise,
there may be individualised, planned participation in
more than one
of the mentioned offences.  But in the definition the focus of
“planned” is not just in participation
or involvement in
the individual offences; it is in the fact that the participation and
involvement must be ongoing, continuous
or repeated.  There must
be interconnectedness between the offences with the result that they
must form a sequence.
They all have to be part of an elaborate
plan.  In
S
v Eyssen
[25]
the Supreme Court of Appeal held that “‘planned’ . . . qualifies
all three” (that is,
“ongoing, continuous or repeated”).
There must be forward planning that there will be participation or
involvement
in the offences referred to in Schedule 1.
[19]
A useful treatment of “pattern”
is to be found in
Eyssen
:
“
The
relevant meaning of ‘pattern’ is given in the Oxford
English Dictionary as ‘an order or form discernible in
things,
actions, ideas, situations, etc.  Frequently with
of
as
pattern
of behaviour
=
behaviour
pattern
.’
. . .  In my view, neither unrelated instances of proscribed
behaviour nor an accidental coincidence between them
constitute a
‘pattern’ and the word ‘planned’ makes this
clear.”
[26]
[20]
The
participation must be in an offence specified in Schedule 1.  Unless
there is something the matter with what is contained
in the Schedule,
this too seems clear enough.  The applicants refer to the fact
that, amongst others, Schedule 1 lists “offences
relating to
coinage”
[27]
and “any
offence relating to exchange control”,
[28]
and complain that these offences are so obscure as to render the
Schedule vague.  What the rule of law requires is reasonable

certainty, not absolute or perfect lucidity.
[29]
In a different but, in my view, apt context
[30]
the Appellate Division in
De
Blom
[31]
quotes the following with approval from De Wet and Swanepoel:
[32]
“
I
wish to agree with the view that knowledge of wrongfulness is an
elementum
essentiale
of intention.  A person only acts
dolo
malo
when he acts unlawfully with full knowledge that he is doing so.
This does not mean the wrongdoer must know that he is contravening

section W of Act X of 19YZ, or that the wrongdoer must know that what
he intends doing is punishable with this or that punishment,
but only
that he must be aware of the fact that what he intends doing is
unlawful.
This
does also not mean that the wrongdoer must know for sure that what he
intends doing is unlawful, but only that he must
have realised that
what he intends doing could
possibly
be unlawful and that he has reconciled himself with this
possibility.”
[33]
(Emphasis in original.)
[21]
Offences
relating to coinage
[34]
and
exchange control
[35]
do exist
and I do not understand the applicants to suggest otherwise.
That they may be hard to find, as the applicants suggest,
is neither
here nor there.  The question is whether, in accordance with the
proposition by De Wet and Swanepoel, the applicants
must be aware of
the existence of offences.  It is interesting to note that in
their affidavits the applicants do not touch
on this issue.  Surely,
at the very least, most reasonably informed South Africans are aware
that they cannot stash R50 million
into a suitcase and take it out of
the country without official sanction and that they cannot mint their
own current coins.  Without
substantiation on affidavit this
complaint is stillborn.  There is nothing so obscure with items
21 and 26 of Schedule 1 as
to be vague.
[22]
The
applicants make the further point that the offences listed in
Schedule 1 are numerous and varied.  In particular –
they
add – item 33 refers to “any offence the punishment
wherefore may be a period of imprisonment exceeding one year
without
the option of a fine”.  They then argue that the list is
so wide as to extend to “ordinary” or “garden

variety” commercial crime which, by whatever stretch of
imagination, cannot fall under what POCA is about, ie organised
crime.
[36]
And on this
the constitutional attack, raised in written and oral argument, is
that POCA is overbroad and because of this,
admits of prosecutorial
abuse,
[37]
which gives rise to
an unfair trial in violation of section 35 of the Constitution.
In the affidavits
[38]
the
definitional challenge, insofar as it relates to “pattern of
racketeering activity”, is founded on the rule of
law, ie the
void for vagueness argument.
[23]
The answer to the pleaded challenge
is that there is simply no vagueness.  There is reasonable
certainty on what Schedule 1
is referring to.  That the list may
possibly incorporate offences which, when viewed individually, may
not be expected to
fall under the sort of notions that readily come
to mind when one thinks of organised crime, does not necessarily
translate to
vagueness.  As I seek to demonstrate immediately
below, the applicants’ contention ignores the
modus
operandi
(mode of operation) of
organised crime.  The argument must fail.  Whether or not
the expansive reach of the Schedule may
found some other
constitutionally cognisable cause of action is not before us.
[24]
As the respondents argued, there is
some inherent value in the concept of a “pattern of
racketeering activity” and its
utilisation in criminal
prosecutions instead of framing indictments with respect to one or
more of the offences listed in Schedule
1.  That is so because
it is a feature of organised crime that its organisational reach is
wide and its tentacles stretch
into many areas of commercial and
governmental activity.  What the concept of “pattern of
racketeering activity”
seeks to prohibit are the connections
between conduct that might otherwise seem disparate but are in fact
connected through the
orchestrated activities of an organised
criminal enterprise.
[25]
The respondents add –
correctly – that targeting specific offences for exclusion from
the Schedule will fail to reach
the true nature of criminal activity
engaged in by criminal syndicates, both as to its scale and those who
are ultimately responsible
for it.  Criminal syndicates work in
a complex web-like manner.  They operate in different areas of
economic activity;
utilise different agents and organisations; and
thereby commit various offences − some relatively minor at face
value −
over time, in complex combination.  It is the
diversity of criminal activity, situated in complex organisational
structures,
occurring over time, where the lines of authority are
deliberately obscured, that renders legislation in the nature of POCA
a necessity.
The concept of a “pattern of racketeering
activity” is thus tailored to meet the multifarious ways in
which organised
crime manifests itself.
[26]
To
illustrate by reference to what, on the face of it, may be viewed as
relatively minor individual offences: common assaults in
the form of
threats of violence
[39]
or
actual application of force may be the order of the day in the
organised criminality of a criminal syndicate.  A ready
example
is where an organisation that deals in drugs on a large scale
protects its turf and gains new turf – to use the colloquialism

– to sustain and increase its sales by requiring its henchmen
to force competitors into submission by means of threats of
violence
and actual violence amounting to no more than common assault.
Quite conceivably, these offences might fall under
the catch-all
item 33 of Schedule 1.  This would fit the definition of
“pattern of racketeering activity”
perfectly.  I
give this example to show that it is idle to attack the definition by
isolating individual offences, forming
an opinion on how relatively
minor they are individually and concluding that they are, therefore,
unsuited to the notion of organised
crime and “pattern of
racketeering activity”.  That is shutting one’s eyes
to how organised crime works.
[27]
In short, what may appear to be
“ordinary” or “garden variety” commercial
criminality may, in fact, be very
much part of organised crime.
And that is a question of fact.
[28]
In
further support of the vagueness argument, the applicants placed
strong reliance on the concurring judgment of Scalia J in the
United
States Supreme Court case of
HJ
Inc. v Northwestern Bell Telephone
.
[40]
In that matter he held that the majority’s definition of
“pattern” in “pattern of racketeering activity”

in RICO
[41]
is vague.
The problem with this is that RICO’s definition of “pattern
of racketeering activity” differs
markedly from that of
POCA.
[42]
RICO
says nothing about “planned, ongoing, continuous or repeated”
participation in the offences concerned.  To
a significant
extent, the differences of opinion between his judgment and the
majority related exactly to that Court’s attempt
to grapple
with something RICO has not provided for, which POCA has.
Therefore, this criticism of the RICO definition is
unhelpful.
[29]
Coming
to the unfair trial component of the definitional challenge, it
cannot succeed purely because it was not pleaded.  It
was raised
for the first time in the applicants’ written submissions.  It
was not raised even in the affidavit filed
in support of the
application before this Court.  The dismissal of the argument in
this fashion is not technical.  A
fair-trial right challenge,
being based on the Bill of Rights, would have involved a two-stage
analysis,
[43]
and the
respondents would have had to be alerted that this was the challenge.
That is so because at the second stage –
the
justification stage – they are entitled to place before court
evidence to justify the limitation at issue.
[44]
Because the challenge is founded on the rule of law, which does not
entail this two-stage analysis, the respondents were
effectively
denied an opportunity to place necessary evidence before court.
[30]
Relative to “enterprise”,
the applicants complain that the definition is so all encompassing
that it is overbroad.
It is true that the definition covers a
wide spectrum.  On how broad the definition is, Cloete JA says:
“
It
is difficult to envisage a wider definition.  A single person is
covered.  So it seems is every other type of connection
between
persons known to the law or existing in fact; those which the
Legislature has not included specifically would be incorporated
by
the introductory word ‘include’.”
[45]
[31]
Placing
reliance on the judgment of Mokgoro J in
Case
,
[46]
the applicants then contend that the definition of “enterprise”
and section 2(1), to the extent that some offences
created by it are
pegged on that definition, are unconstitutional.  This argument
is misconceived.  In our constitutional
jurisprudence
overbreadth is not a self-standing ground of statutory constitutional
invalidity.  It comes into the equation
in the justification
analysis in terms of section 36(1) of the Constitution
[47]
once a law of general application has been found to limit a right in
the Bill of Rights.  It is interesting to note that the
very
paragraphs in
Case
that the applicants rely on are, in so many words, dealing with
justification under section 33 of the interim Constitution, the

equivalent of the present section 36.
[32]
Whether some other constitutional
attack based on the wide sweep of the definition – properly
framed – is not feasible
is something else altogether.
And I should not be heard to suggest that it is feasible.  For
obvious reasons, I say
nothing more on the subject.
[33]
In sum, the entire definitional
challenge must fail.
Procedural
challenge
[34]
This attack targets section 2(2) of
POCA, which provides:
“
The
court may hear evidence, including evidence with regard to hearsay,
similar facts or previous convictions, relating to offences

contemplated in subsection (1), notwithstanding that such evidence
might otherwise be inadmissible,
provided
that such evidence would not render a trial unfair
.”
(Emphasis added.)
[35]
Ordinarily
hearsay evidence, similar fact evidence and evidence of previous
convictions is inadmissible. This is as a result of
exclusionary
rules that I deal with below.  Besides these three types of
evidence, there are several others that are also
generally
inadmissible.  More on the others later.  Suffice it to say
for now, the relevance of these other categories
is that the three
mentioned specifically in section 2(2) do not constitute a
closed list of the “otherwise inadmissible
evidence” to
which the section refers.
[48]
[36]
Apparently
because of an assumption that the admission of any evidence that is
subject to an exclusionary rule would of necessity
render a trial
unfair, the applicants contend that section 2(2) of POCA infringes
the right to a fair trial contained in section 35(3)
of the
Constitution.  For reasons that will become clear later, I must
quote the sum total of this challenge as set out in
the founding
affidavit filed at the High Court.
[49]
If, in all instances, the admission of evidence that is subject to an
exclusionary rule would always lead to an unfair trial,
the premise
on which the applicants proceed is on solid ground.
[50]
The question is: is that true in all instances?  If it is not,
the entire substratum of the argument is gone.
[37]
I
answer the question by first dealing with the three categories of
evidence mentioned in section 2(2).  Although on a proper

reading of the complaint it seems that the applicants take issue only
with these categories,
[51]
for
completeness I do deal with other types of inadmissible evidence
later.  I have alluded to the reasons for so doing: section
2(2)
is about more than just the three mentioned categories.
To
answer the question, it is necessary to look at the creation of the
exclusionary rules, the rationale for each and why each has

exceptions.  In it I draw heavily from English law because it is
the main source of our law of evidence.
[52]
Hearsay
[38]
The
law’s aversion to the admission of hearsay is its general
unreliability.
[53]
In
Ndhlovu
,
[54]
Cameron JA said:
“
Not
only is hearsay evidence
– that is, evidence of the statement by a person other than a
witness which is relied on to prove what the statement asserts
–
not
subject to the reliability checks applied to the first-hand testimony
(which diminishes its substantive value)
,
but its reception exposes the party opposing its proof to the
procedural unfairness of not being able to counter effectively
inferences that may be drawn from it.”
[55]
(Emphasis added and footnotes omitted.)
[39]
Despite
this rationale for the exclusion of hearsay, quite early on there was
unhappiness with it.  The hearsay rule “led
to the
exclusion of much reliable evidence”.
[56]
Some judicial critics even labelled the rule as technical and
absurd.
[57]
It is not
surprising that, on an ad hoc basis, exceptions to the rule were
created.
[58]
From the
historical account that Lord Reid gives,
[59]
it is apparent that this happened over time.
[40]
This
case by case creation of exceptions to the hearsay rule was finally
pronounced to be at an end in
Myers
.
[60]
In South Africa the death knell was sounded by
Vulcan
Rubber Works.
[61]
If, as we have seen, hearsay was excluded because of its general
unreliability and the unfairness it visited upon the party
against
whom it was tendered, the fact that the common law saw it fit to make
possible the admissibility of certain types of hearsay
evidence –
through the exceptions – must mean that hearsay thus admissible
was found reliable and not objectionable
like that hit by the
exclusionary rule.
[41]
Why all this historical material?
The applicants submit that “[t]he
right to a fair trial is immediately compromised
by
permitting the admission of otherwise inadmissible evidence”
and that “[h]earsay evidence, similar fact
evidence and evidence of previous convictions is ordinarily
inadmissible for good
reason: such evidence is inherently unreliable,
prejudicial or unfair”.  In
Myers
,
Lord Reid did not say that the reason there could no longer be new
exceptions to the hearsay rule was because the fountain whence
the
exceptions existing up to that point had been drawn had gone dry,
with the result that no exceptions worthy of recognition
could
possibly ever come out of it again.  What he did say was that he
was averse to the piecemeal introduction of exceptions
by the court
as this would result in uncertainty, which is undesirable.  Here
are his words:
“
If
we are to extend the law it must be by the development and
application of fundamental principles.  We cannot introduce
arbitrary conditions or limitations: that must be left to
legislation.  And if we do in effect change the law, we ought in

my opinion only to do that in cases where our decision will produce
some finality or certainty.  If we disregard technicalities
in
this case and seek to apply principle and common sense, there are a
number of other parts of the existing law of hearsay susceptible
of
similar treatment, and we shall probably have a series of appeals in
cases where the existing technical limitations produce
an unjust
result.  If we are to give a wide interpretation to our judicial
functions questions of policy cannot be wholly
excluded, and it seems
to me to be against public policy to produce uncertainty.  The
only satisfactory solution is by legislation
following on a wide
survey of the whole field, and I think that such a survey is
overdue.  A policy of make do and mend is
no longer adequate.
The most powerful argument of those who support the strict doctrine
of precedent is that if it is relaxed
judges will be tempted to
encroach on the proper field of the legislature, and this case to my
mind offers a strong temptation
to do that which ought to be
resisted.”
[62]
[42]
From what Lord Reid says, the very
facts of
Myers
were clamant that the evidence be admitted. That much is clear from
the last sentence of the quotation where, in essence, he says
that
the case offers a strong temptation to depart from precedent and
admit otherwise inadmissible hearsay.  He went further
and
implicitly accepted the reliability of the contested evidence:
“
At
the end of their judgment the Court of Criminal Appeal [the court
below] gave a different reason.  ‘In our view the

admission of such evidence does not infringe the hearsay rule because
its probative value does not depend upon the credit of an

unidentified person but rather on the circumstances in which the
record is maintained
and
the inherent probability that it will be correct rather than
incorrect.’  That, if I may say so, is undeniable as
a
matter of common sense
.”
[63]
(Emphasis added.)
[43]
The
general unreliability of hearsay notwithstanding, Tapper
[64]
and Zeffertt and Paizes
[65]
explicitly make the point that hearsay falling outside of the
exceptions to the hearsay rule may, in certain instances, be
reliable.
Zeffertt and Paizes say:
“
Hearsay
could not be received if it did not fall within the corners of a
recognised common-law or statutory exception.  The
fact that an
item of hearsay evidence was highly relevant,
or
indeed reliable
,
did not alter this fact.  Yet the primary reason for the
exclusion of hearsay was its
general
unreliability – the fact that it rested for its evidential
value on the untested memory, perception, sincerity and narrative

capacity of a declarant or actor who was not subjected to the oath,
cross-examination or any of the other procedural devices to
which our
adversary system of trial procedure subjects a witness giving
original evidence.
Where
in a specific case these objections were overcome the rationale for
the exclusion disappeared.
In
the absence of a recognised exception, however, the evidence had to
be excluded.”
[66]
(Footnote omitted and emphasis added, except for “general”,
which is emphasised in the original.)
[44]
That it must be so – that is,
there must still be categories of hearsay evidence not falling within
the recognised exceptions,
which are nevertheless reliable and thus
deserving of admission – is quite understandable.  I do
not read the cases
and other learning on the subject to say that when
Myers
finally
drew the curtain, thus shutting out the possibility of new
court-created exceptions, this was because no new, worthy exceptions

could be found.  The justification given aside, it cannot be
gainsaid that the curtain was drawn at an arbitrary point: the

creation of new exceptions could easily have been halted earlier or
later or, as will be observed from the Canadian position below,
not
halted at all.  This is illustrated by the words of Lord
Blackburn in
Sturla v Freccia
:
“
[U]ndoubtedly
the law is that, as a general rule, hearsay evidence is not
admissible.  But to that a great many exceptions
have been
introduced.
I
do not say that if we were but beginning to make the law, we should
be able to say exactly why so much should be admitted and
no more
”.
[67]
(Emphasis added.)
[45]
Canadian
courts refused to follow Lord Reid.  They opted to continue
finding new exceptions to the hearsay rule on a principled

basis.
[68]
This
buttresses the point that outside of the recognised exceptions to the
hearsay rule there are other categories of hearsay
the admission of
which will not necessarily lead to unfair trials.  In the
Canadian case of
R
v Khan
the
Court held:
[69]
“
The
hearsay rule has traditionally been regarded as an absolute rule,
subject to various categories of exceptions. . . .  While
this
approach has provided a degree of certainty to the law on hearsay, it
has frequently proved unduly inflexible in dealing with
new
situations and new needs in the law.  This has resulted in
courts in recent years on occasion adopting a more flexible
approach,
rooted in the principle and the policy underlying the hearsay rule
rather than the strictures of traditional exceptions.”
[46]
Adverting
to the applicants’ complaints, it cannot be correct to say,
without more, that all hearsay not admissible under
the exceptions is
of necessity unreliable and that its admission would result in
unfairness.  This is not to say hearsay evidence
is without
dangers.  Quite the contrary.
[70]
Just as some hearsay evidence not falling within the recognised
exceptions may not be objectionable, some may be.  Admitting

objectionable hearsay in criminal proceedings may well result in
unfairness to an accused, resulting in a violation of the
section 35(3)
fair trial right.  It must be as a result of
this reality that a filter in the form of the proviso has been
appended to section 2(2)
of POCA.
[47]
The
section serves a twin purpose.  First, it effectively does away
with the hearsay rule on charges under section 2(1) of
POCA and,
indeed, other exclusionary rules.  In this respect this section
differs from section 3(1) of the Law of Evidence
Amendment Act,
[71]
which retains the exclusionary rule
[72]
but permits the admission of hearsay evidence only under the
circumstances set out in paragraphs (a) to (c) of the section.
[73]
[48]
Second, section 2(2) insists that
hearsay should not be admitted if doing so would render the trial
unfair.  In the light of
the copious discussion above, I see
nothing unconstitutional with this.  Any unconstitutionality
that there might be would
be a function of the improper admission of
hearsay by the court concerned; that is, a failure to use the filter
in a constitutionally
compliant manner.  As mentioned earlier,
the applicants have not placed before the Court a specific set of
facts, but have
brought an abstract challenge.  Therefore the
question whether the section 2(2) proviso has been applied
constitutionally
does not arise.
[49]
Needless
to say, it would be ill-advised to attempt to anticipate instances
where the admission of hearsay would be so unfair as
to infringe an
accused’s fair trial right.  That is something best left
to a trial court.  There issues like, to
mention but a few, the
nature of the evidence, its reliability or lack of it, its probative
value and prejudice to the accused
[74]
would have to be considered.
Similar
fact evidence
[50]
In
South Africa the admission of similar fact evidence is surrounded by
some degree of confusion;
[75]
but perhaps less so in recent times.  At the centre of this
confusion is
Makin
v Attorney-General for New South Wales
.
[76]
Similar fact evidence is inadmissible because it is inherently
prejudicial.
[77]
[51]
Makin
is
one of three major English cases on similar fact evidence.  The
other two are
DPP
v Boardman
[78]
and
DPP
v P
.
[79]
The legal principle that
Makin
is famous for goes:
“
It
is undoubtedly not competent for the prosecution to adduce evidence
tending to [show] that the accused has been guilty of criminal
acts
other than those covered by the indictment, for the purpose of
leading to the conclusion that the accused is a person likely
from
his criminal conduct or character to have committed the offence for
which he is being tried.  On the other hand, the
mere fact that
the evidence adduced tends to [show] the commission of other crimes
does not render it inadmissible if it be relevant
to an issue before
the jury, and it may be so relevant if it bears upon the question
whether the acts alleged to constitute the
crime charged in the
indictment were designed or accidental, or to rebut a defence which
would otherwise be open to the accused.”
[80]
[52]
What
the first part of this formulation says is that, if all that evidence
of similar facts shows is proclivity of a particular
kind, it is not
admissible regardless of the probative value of that disposition.
It is not readily apparent why it was that
propensity in and of
itself might not, in a given set of circumstances, be sufficiently
relevant to an issue before a trial court.
Presumably because
of its reference to design, accident and rebuttal of a defence, the
Makin
formulation came to be understood as having laid down rigid
categories in which similar fact evidence would be relevant and
admissible;
[81]
the converse
being the inadmissibility of similar facts not falling within those
categories.
[53]
The
House of Lords decision in
Boardman
[82]
is credited with having relaxed the stereotypical approach to the
admission of similar fact evidence.
[83]
Lord Wilberforce said:
[84]
“
The
basic principle must be that the admission of similar fact evidence
(of the kind now in question) is exceptional and requires
a strong
degree of probative force.  This probative force is derived, if
at all, from the circumstance that the facts testified
to by the
several witnesses bear to each other such a striking similarity that
they must, when judged by experience and common
sense, either all be
true, or have arisen from a cause common to the witnesses or from
pure coincidence.  The jury may, therefore,
properly be asked to
judge whether the right conclusion is that all are true, so that each
story is supported by the other(s).
I
use the words ‘a cause common to the witnesses’ to
include not only . . . the possibility that
the
witnesses may have invented a story in concert but also the
possibility that a similar story may have arisen by a process of

infection from media of publicity or simply from fashion.”
[85]
[54]
A
major and – I would add – welcome relaxation of the
English law on similar fact evidence came with
DPP
v P
.
[86]
In a unanimous judgment the House of Lords – expressly
overruling
Boardman
on this point – held that “it is not appropriate to
single out ‘striking similarity’ as an essential element

in every case in allowing evidence of an offence against one victim
to be heard in connection with an allegation against another”.
[87]
“
I
would deduce the essential feature of evidence which is to be
admitted is that its probative force in support of the allegation

that an accused person committed a crime is sufficiently great to
make it just to admit the evidence, notwithstanding that it is

prejudicial to the accused in tending to show that he was guilty of
another crime.  Such probative force may be derived from

striking similarities in the evidence about the manner in which the
crime was committed and the authorities provide illustrations
of that
of which
Reg v Straffen
[1952] 2 Q.B. 911
and
Rex v Smith
(1915) 11 C.r. App. R 229, provide notable examples.  But
restricting the circumstances in which there is sufficient
probative
force to overcome prejudice of evidence relating to another crime to
cases in which there is some striking similarity
between them is to
restrict the operation of the principle in a way which gives too much
effect to a particular manner of stating
it, and is not justified in
principle.  Hume on Crimes,
3 ed
.
(1844), vol. II, p. 384, said long ago:
‘
The
aptitude and coherence of the several circumstances often as fully
confirm the truth of the story, as if all the witnesses were
deponing
to the same facts.’
Once
the principle is recognised, that what has to be assessed is the
probative force of the evidence in question, the infinite
variety of
circumstances in which the question arises, demonstrates that there
is no single manner in which this can be achieved.
Whether the
evidence has sufficient probative value to outweigh its prejudicial
effect must in each case be a question of degree.”
[88]
This
is a salutary proposition.
[55]
What
is the position in South Africa?  It is not necessary to track
the historical development.  I refer only to two decisions:
S
v D
[89]
and
S v
Nduna
.
[90]
In
S
v D
the
Appellate Division quoted with approval the passage in
Boardman
[91]
that says the probative force of similar fact evidence is derived
from a “striking similarity” of the facts testified
to by
the several witnesses.
[92]
The insistence on striking similarity may lead to sophistry and
technicality and raise more questions than provide answers.
[93]
The real question should be whether, when looked at in its totality,
evidence of similar facts “has sufficient probative
value to
outweigh its prejudicial effects”;
[94]
and that is a matter of degree in each case.
[56]
S
v D
,
which was rejected in the Zimbabwean case of
S
v Banana
,
[95]
appears to be still law in South Africa.  And so is the more
recent Supreme Court of Appeal judgment in
Nduna
.
[96]
In
Nduna
the Supreme Court of Appeal, although relying in the main on
R
v Katz
[97]
and
R
v Matthews
,
[98]
followed the
Makin
formulation and the category based admission that seems to have come
after
Makin
.
The category in
Nduna
was the accused’s
modus
operandi
in committing acts of robbery
.
[57]
Kruger says:
“
If
in certain circumstances it appears that evidence of a tendency is
highly relevant, the question is then not whether the evidence

indicates a tendency but what the relative evidential value of that
evidence is.  In
S
v Banana
2000 (2) SACR 1
(Z) Gubbay CJ pointed out that the reformulation by
Lord Mackay in
R
v P
[1991] 3 All ER 337
(HL) of the test for admission of similar facts
emphasises that the test concerns the evidential value of the
evidence.  Answering
the test is thus a question of logic and
sound common sense, not of legal philosophy.  Whether the
evidence has sufficient
evidential value to overshadow its negative
effects depends on the particular facts of each case and, of course,
on the court’s
balanced value judgement.”
[99]
[58]
I will make no attempt at suggesting
what the ideal development of the law on similar fact evidence should
ultimately be.
That is not called for in this case.  That
said, in my view, the debate above adequately demonstrates that in
South Africa
there is still ample room for a less restrictive
approach to the admission of similar facts.
[59]
What emerges from this is that not
all similar fact evidence that is inadmissible according to South
African law would automatically
render a trial unfair if admitted.
Previous
convictions
[60]
In
terms of section 211 of the Criminal Procedure Act
[100]
evidence of previous convictions is admissible only under certain
specified circumstances and section 2(2) of POCA is not

covered.
[101]
The
language of section 2(2) declares admissible evidence of previous
convictions that would otherwise be inadmissible in
terms of
section 211.  Is this constitutionally impermissible in
terms of section 35(3) of the Constitution?  I
think not.
[61]
The
rationale for the restriction on admissibility of evidence of
previous convictions is that it is prejudicial to an accused to

divulge her previous convictions.
[102]
[62]
Evidence of previous convictions
might be used where it would serve as relevant similar facts. Thus
the debate and conclusion on
similar fact evidence finds application
here as well. Kruger does make the connection with similar fact
evidence:
“
It
is logical that the doctrine of similar facts . . . will encroach on
[section 211] because the doctrine makes previous offences,

irrespective of whether there was a conviction or not, admissible on
the basis of their relevance to the facts in dispute.”
[103]
Other
categories of inadmissible evidence
[63]
To
recapitulate, in addition to the three specified types of evidence,
section 2(2) of POCA provides for the admissibility
of other
categories of otherwise inadmissible evidence.
[104]
[64]
From a treatment of the other three
types of evidence, there has been a distillation of a principle. This
is that it is misconceived
to suggest that under all circumstances
the admission of otherwise inadmissible evidence would automatically
result in a trial
being unfair in violation of section 35(3) of the
Constitution. This principle seems applicable in respect of other
categories
of inadmissible evidence.
Other
issues on procedural challenge
[65]
There are two more strings to the
applicants’ bow.  Firstly, they argue that, because there
is no way of knowing in advance
what criteria govern the
admissibility of otherwise inadmissible hearsay, an accused cannot
anticipate or guard against the inherent
prejudice.  That is
because the section is silent on the criteria. Secondly, they contend
that the admission of the evidence
is dependent on the discretion of
both the prosecutor and presiding judge with no guidelines on the
exercise of that discretion.
[66]
At first blush – but no
further – the first argument appears sound.  If the want
of criteria were constitutionally
objectionable, the Constitution
would set criteria for instances where courts have to pass a value
judgment on an issue.
Well, an example of an instance where
there are no criteria and yet courts are expected, should the need
arise, to make a judgment
call is section 35(5) of the Constitution.
The section 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 be detrimental to the administration of
justice.”
[67]
This
section does not give an indication of circumstances where the
admission of what I will loosely call unconstitutionally obtained

evidence would render a trial unfair or be detrimental to the
administration of justice.  Also, we know on authority
[105]
that what is itemised in section 35(3)(a) to (o) does not constitute
a closed list: the right to a fair trial is wider.  If
one uses
what is itemised as a mirror to help guide one on what is unfair,
beyond that mirror – that is, outside the list
– one
cannot anticipate what more would render a trial unfair.  The
judgment call in each of these instances will turn
on what is before
court.  Is this objectionable?
[106]
I believe not.  This leads me to the conclusion that there is
simply no unfairness or prejudice to an accused arising
from the lack
of guidelines in section 35(5).  Albeit sourced from an ordinary
Act of Parliament, section 2(2) of POCA is
analogous on the issue
complained of.  In principle I do not see why the position
should be any different.  Whether or
not the admission of
otherwise inadmissible evidence will render a trial unfair is
something to be determined by the trial court
based on the material
before it.
[68]
The public interest may also have to
come into the equation when considering what is fair.  In
King
the Supreme
Court of Appeal held:
“
There
is no such thing as perfect justice . . . .  Fairness is not a
one-way street conferring an unlimited right on an accused
to demand
the most favourable possible treatment but also requires fairness to
the public as represented by the state.  This
does not mean that
the accused’s right should be subordinated to the public’s
interest in the protection and suppression
of crime; however, the
purpose of the fair trial provision is not to make it impracticable
to conduct a prosecution.  The
fair trial right does not mean a
predilection for technical niceties and ingenious legal stratagems,
or to encourage preliminary
litigation – a pervasive feature of
white collar crime cases in this country.  To the contrary:
courts should within
the confines of fairness actively discourage
preliminary litigation.  Courts should further be aware that
persons facing serious
charges – and especially minimum
sentences – have little inclination to co operate in a
process that may lead
to their conviction and ‘any new
procedure can offer opportunities capable of exploitation to obstruct
and delay.’
One can add the tendency of such accused,
instead of confronting the charge, of attacking the prosecution.”
[107]
(Footnotes
omitted.)
[69]
The
second argument referred to in [65] above is totally misconceived.
Judicial officers are not administrative functionaries.
[108]
The judgment call expected of them in terms of section 2(2) of
POCA lies at the heartland of judicial function.  Any
judicial
officer worth her salt should be perfectly placed to make the
necessary value judgment.  In this context, the reference
to an
exercise of discretion by a prosecutor is misplaced.  What a
prosecutor does is to decide on the arsenal to be deployed.
In
the line up there may be evidence in respect of which the prosecutor
intends invoking section 2(2) of POCA.  It is the
trial court
that will either admit or reject that evidence.
[70]
The unfairness of a trial is a
notion so wide that it would be an exercise in futility to try to
contain it within four corners.
It is a matter to be determined
by the court when that issue arises.  On that, the court may be
proactive because it has a
duty to protect an accused from being
subjected to an unfair trial.  Likewise, the accused may alert
the court to possible
unfairness.  Axiomatically, it would be
inadvisable to attempt to suggest instances where the admission of
evidence in terms
of section 2(2) of POCA might render a trial
unfair.  That is especially so in a case like the present, where
– as shown
in footnote 49 above – the challenge is
scantily framed and does not relate to any specific evidence led or
sought to be
led at a trial.
[71]
Since
it
is
pre-eminently the function of the trial court to decide on the
admissibility of evidence, including a decision whether the admission

of evidence of a particular type would render a trial unfair,
[109]
that issue should only receive the attention of this Court if a
constitutional issue pertaining to the performance of that function

is raised.
[110]
[72]
In the end, I remain unswayed:
section 2(2) of POCA does not limit the right to a fair trial.
Retrospectivity
[73]
Section
35(3)(l) of the Constitution guarantees the right of an accused
person “not to be convicted for an act or omission
that was not
an offence under either national or international law at the time it
was committed”.  Although expressed
as a fair trial right,
this right forms part of the principle of legality
[111]
which, in turn, is a sub-set of the rule of law.
[112]
In criminal law, long before the Constitution, this found
articulation in the maxim
nullum
crimen, nulla poena sine lege
(no
crime, no punishment without law).
[113]
[74]
In
National
Director of Public Prosecutions v Basson
[114]
Nugent JA states that a “statute is said to operate
retrospectively if it creates consequences for conduct only after
that
conduct has occurred”.  The issue for determination
arises from the definition of “pattern of racketeering
activity”
in section 1 of POCA.
[115]
The offences created by section 2(1)(a) to (g) of POCA are predicated
on a “pattern of racketeering activity”.
From the
definition one or more of the offences that constitute the component
parts of the “pattern of racketeering activity”
may have
occurred before the commencement of POCA.  It is to this that
the challenge relates.
[75]
To understand the true content of
the section 35(3)(l) right, it is necessary to consider its
rationale.  Central to the rule
against retrospectivity is the
need to forewarn people that conduct of a particular kind is
proscribed and punishable criminally.
With that forewarning,
they are in a position so to order their lives that they do not fall
foul of the proscription.  This
observation was made as far back
as the 18th century by Blackstone:
“
There
is still a more unreasonable method than this, which is called making
of laws
ex
post facto
;
when after an action is committed, the legislator then for the first
time declares it to have been a crime, and inflicts a punishment
upon
the person who has committed it; here it is impossible that the party
could foresee that an action, innocent when it was done,
should be
afterwards converted to guilt by a subsequent law; he had therefore
no cause to abstain from it; and all punishment for
not abstaining
must of consequence be cruel and unjust.  All laws should be
therefore made to commence
in
futuro
,
and be notified before their commencement; which is implied in the
term ‘prescribed’.”
[116]
(Emphasis added.)
[76]
In
similar vein, in
National
Director of Public Prosecutions v Carolus and Others
,
[117]
the Supreme Court of Appeal held that individuals should be afforded
an opportunity to know what the law is in order to conduct
themselves
accordingly.  If a statute creates a criminal offence
retrospectively, there is, as Blackstone said centuries ago,
an
element of intrinsic cruelty in it,
[118]
which in my view, may not only implicate the section 35(3)(l) right,
but possibly even the rights protected in section 12(1)(a)
and (e)
of the Constitution.
[77]
So
deeply rooted is the principle against retrospectivity that there has
always been a presumption of ancient origin against the
retrospective
operation of laws.  Some legal historians find evidence of it in
Greek law.
[119]
In
Roman law it manifested itself by way of several prohibitions in the
Corpus
Juris Civilis
.
[120]
[78]
In
pre-constitutional South Africa the notion of retrospectivity served
no more than as a tool of interpretation: laws were presumed
not to
have been meant to operate retrospectively.
[121]
Nothing stood in the way of Parliament – in accordance with the
principle of parliamentary supremacy, which we were
subject to –
to enact laws that operated retrospectively.
[122]
Converting a general principle of interpretation into a fundamental
right signifies the intrinsic worth the framers of the
Constitution
saw in not having criminal laws that operate retrospectively.
[79]
Chapter 2 of POCA creates various
offences in section 2(1).  Those are predicated, not on complete
offences that predate POCA
and for which an accused could now be
convicted under that Act, but rather on a “pattern of
racketeering activity”.
A “pattern of racketeering
activity” requires at least two offences listed in Schedule 1,
one of which may predate
POCA but the other not.  The second
offence must have taken place within 10 years (excluding any period
of imprisonment) of
the first.  Thus there can be no conviction
under POCA based only on offences that predate POCA.  The
question is: does
this render Chapter 2 of POCA retrospective and
thus unconstitutional?
[80]
Keeping in mind what I see as
central to the rule against retrospectivity, no criminal sanction
flows, without more, from acts that
predate POCA.  For a
conviction to attach there must be an act that postdates the coming
into operation of POCA.  When
POCA came into effect, all were
forewarned that if, after it came into operation, we commit an act
that, in combination with one
that predates POCA, completes the
circle of racketeering activity, we will be guilty in terms of
section 2(1) of POCA.
A person that completes the circle
does so with their eyes wide open: they must live with that choice.
The inherent injustice,
unfairness and cruelty, which make a criminal
offence created retrospectively constitutionally impermissible, are
simply not there.
[81]
Section 2(1) in my view criminalises
current conduct.  The current conduct contemplated by those
sections relates to the “pattern
of racketeering activity”.
That pattern must manifest itself post the coming into operation of
POCA.  That is
what is criminalised in those sections; not
individual offences committed pre-POCA or even a pattern of
racketeering activity that
predates POCA.  That is in my view
the clear meaning of the sections.
[82]
Organised crime works like modern
business and even organises its structures like those of business
entities.  Just as a particular
business operates in a
particular fashion, so does an entity involved in organised crime: it
will have a particular mode of operation
and that will be ongoing.
Of course, like business, it may diversify or abandon the current
category of activities and embark
on something new altogether.
As business becomes sophisticated, so do operations of organised
crime.  Cameron J in
Elran
said:
“
The
second reason POCA-like legislation is indispensable is the intricacy
and complexity of modern law-breaking.  No longer
is economic
crime committed only through romantically imaginable methods like
piracy, highway robbery and smuggled contraband.
All that, if
not past, is now of comparatively lesser importance.  Most
modern crime is committed through infinitely more
sophisticated means
– indirect and electronic.  More importantly even, it is
then concealed through those same means”.
[123]
[83]
I
see nothing offensive to constitutionalism or criminal justice if the
law were to peer over the shoulder and look at past conduct
to
determine whether, in conjunction with present conduct, it evinces a
pattern of criminality; in particular, a pattern of racketeering

activity.  That will be a current – not past –
pattern.  There is nothing retrospective about that, at least

not in the sense envisaged in section 35(3)(l) of the Constitution.
It is to this current, planned, ongoing, continuous criminality
that
the section 2(1) offences relate and the criminal sanction attaches.
To suggest otherwise would be but maudlin benevolence
to
criminality.  And that approach would be deleterious to our
relatively nascent democracy.
[124]
[84]
Yes, people facing criminal charges,
not least the guilty, have a constitutionally guaranteed right to a
fair trial: it behoves
this Court and others to guard it jealously.
But here there is simply no right under threat.  Without doubt,
the retrospectivity
challenge must fail.
High
Court’s order of invalidity
[85]
When declaring section 2(1)(a)(ii),
(b)(ii), (c)(ii) and (f) of POCA unconstitutional only to the extent
that it contains the words
“ought reasonably to have known”,
the High Court reasoned: first, the words expose an accused “to
conviction
for an offence he had not committed” and “the
possibility of punishing an unintended, insensible or unconscious
conduct”;
and second, these words are vague and
unintelligible.  The High Court correctly identified the words
to signify that the fault
(
mens rea
)
element is negligence.
[86]
The
general rule of our common law is that criminal liability does not
attach if there is no fault or blameworthy state of mind.
[125]
This is expressed by the maxim:
actus
non facit reum nisi mens sit rea
(an act is not unlawful unless there is a guilty mind).
[126]
The fault element may take the form of either intention or
negligence.
[127]
This
is true of both common law and statutory offences.
[128]
Thus a statute creating a criminal offence cannot be invalidated
simply on the ground that it identifies negligence for the
fault
element.  That is a choice that lies within the purview of the
Legislature’s competence, and Parliament must be
given the
necessary leeway.  Of course, that does not mean the Legislature
is given free rein to choose the negligence standard
as it pleases
and under whatever circumstances: not in a constitutional democracy
like ours.  Pronouncing both on the need
for flexibility and the
constitutional curb, O’Regan J said in
Coetzee
:
“
[T]he
appropriate form of culpability may well be affected by the nature of
criminal prohibition as well as other factors.  In
addition, it
should be borne in mind that significant leeway ought to be afforded
to the Legislature to determine the appropriate
level of culpability
that should attach to any particular unlawful conduct to render it
criminal.  It is only when the Legislature
has clearly abandoned
any requirement of culpability, or when it has established a level of
culpability manifestly inappropriate
to the unlawful conduct or
potential sentence in question, that a provision may be subject to
successful constitutional challenge.”
[129]
It
was not on any of the bases mentioned in the last sentence by O’Regan
J that the High Court invalidated part of section
2(1).
[87]
Nothing was placed before the High
Court suggesting that the negligence standard was not suited to the
offences concerned.
Therefore, there are no grounds upon which
we can conclude that the negligence standard provided for in
section 2(1) is not
constitutionally compliant.  In fact,
the High Court made the order of invalidity of its own motion.
Needless to say,
no evidence had been proffered by any of the parties
on the issue.  To put it bluntly, the order of constitutional
invalidity
was made on a case the respondents were never called upon
to meet.
[88]
What
remains is whether the phrase “ought reasonably to have known”
is unintelligible and vague as the High Court found.
This
language classically captures the idea of negligence.  The
measure for negligence is the so-called objective reasonableness

standard.  That explains the use of “reasonably” in
the phrase.  Negligence is determined by asking whether
a
reasonable person in the same circumstances would have acted in the
same way.
[130]
To add,
“[n]egligence can thus be said to be the failure to act as the
reasonable man or woman would have acted”,
[131]
the so-called objective test.
[89]
My view of the meaning of the
contested phrase is reinforced by the provisions of section 1(3) of
POCA which reads:
“
For
purposes of this Act a person ought reasonably to have known or
suspected a fact, the conclusions that he or she ought to have

reached are those which would have been reached by a reasonably
diligent and vigilant person having both—
(a)
the general knowledge, skill, training and experience that may
reasonably be expected of a person in his or her position; and
(b)
the general knowledge, skill, training and experience that he or she
in fact has.”
[90]
Paragraph
(b) of this section does bring in an element of subjectivity.
In my view this is more consonant with the interests
of justice than
the purely objective test for negligence.  In its traditional
formulation the objective test ignores the individual
attributes of
people: their level of education; background; personal beliefs –
religious and otherwise; idiosyncrasies; fears;
and so on.  It
has been argued that there is a potential for injustice when a
completely objective criterion of negligence
is applied.
[132]
On this the words of Hefer JA in
S
v Melk
bear repetition:
[133]
“
The
question is: by whom are [publications which are identifiable as
prohibited] supposed to be identifiable?  If the so-called

objective test of negligence is applied, as it generally is, the
court hearing a case brought for an alleged contravention of
section 56(1)(c) will be called upon to answer this question
according to its own objective assessment of the reasonableness
of
the accused’s failure to identify the publication; and in doing
so, it will not take the accused’s personal capabilities
into
account (
S v Ngubane
1985 (3) SA 677
(A) at 687); the unsophisticated and uneducated
shepherd will be treated no differently from the professor and no
heed will be
taken of the ‘widely differing standards of
culture, education and social awareness of the various groups of
persons to whom,
as citizens of South Africa, this Act applies’.”
[91]
I am cognisant of the reality that
in a setting more familiar to the shepherd, a higher standard of
reasonableness may be expected
of the shepherd than the professor if,
for example, the professor is a complete stranger to the shepherd’s
rustic lifestyle
and that lifestyle is what is at issue.  All
that this is about is infusing an element of subjectivity to the pure
objective
test; a recognition of individual frailties and
shortcomings; and, indeed, even positive attributes.  That is
what section 2(1)(a)(ii),
(b)(ii), (c)(ii) and (f) seeks to
achieve: the objective criterion of negligence tempered with a
measure of subjectivity.
That is quite plain and I fail to see
the unintelligibility that the High Court saw.  Nor is there
anything constitutionally
objectionable with this formulation.
[92]
In the result, the respondents’
cross-appeal on this issue must succeed with the consequence that the
High Court’s order
of invalidity cannot be confirmed.
Costs
[93]
In
accordance with the general rule that an unsuccessful litigant in
constitutional litigation should not be ordered to pay costs,
[134]
a costs order against the unsuccessful applicants is uncalled for in
these proceedings.  There has been no suggestion that
this
application “is frivolous or vexatious, or in any other way
manifestly inappropriate” with the result that the
applicants
should not be “immunise[d] . . . against an
adverse costs award”.
[135]
Moreover, the applicants’ underlying grievance relates to
the criminal prosecution against them, making it generally

inappropriate to mulct them in costs.
Order
[94]
The following order is made:
1.
Leave to appeal and cross-appeal is
granted.
2.
The applicants’ appeal is dismissed.
3.
The applicants’ challenge to the
constitutional validity of—
(a)
the definitions of “pattern of racketeering activity” and
“enterprise” in section 1 of the Prevention
of Organised
Crime Act 121 of 1998 (the Act);
(b)
section 2(1)(a), (b), (c), (d), (e), (f) and (g) of the Act;
(c)
section 2(2) of the Act; and
(d)
Chapter 2 of the Act,
fails.
4.
The respondents’ cross-appeal is
upheld.
5.
The High Court’s order of
constitutional invalidity is not confirmed.
6.
No order is made as to costs.
For
the Applicants:
Advocate
G Marcus SC, Advocate
K Kemp SC
,
Advocate
M du Plessis and
Advocate
S Pudifin-Jones
instructed
by
Edward Nathan Sonnenbergs.
For
the Respondents:
Advocate
D Unterhalter SC,
Advocate
R Naidu,
Advocate
L Sisilana and
Advocate
C Sibiya
instructed
by the State Attorney.
[1]
121
of 1998.
[2]
National
Director of Public Prosecutions v Elran
[2013]
ZACC 2
;
2013 (1) SACR 429
(CC);
2013 (4) BCLR 379
(CC) (
Elran
)
at para 22.
[3]
The
High Court’s order refers to section 2(1)(f)(ii).  This
is a patent error as section 2(f) does not have any subparagraph.
[4]
In
terms of section 167(5) of the Constitution: for an order of
constitutional invalidity of an Act of Parliament, a provincial
Act
or conduct of the President to have force, it must first be
confirmed by this Court.
[5]
The
first applicant is the chairman of various companies in the Intaka
group of companies (Intaka Group).  The second applicant
is
Intaka Holdings (Pty) Ltd.  The third applicant is Fernando
Praderi, an employee of the Intaka Group.
[6]
The
applicants assert that they are seeking a variation of the High
Court’s order, to the extent that they did not succeed,
and
are asking for leave to appeal in the alternative.  As I do not
see the substantive difference, I will simply treat
the application
as one for leave to appeal.
[7]
The
definitions of “pattern of racketeering activity” and
“enterprise” in section 1 of POCA; section 2(1)(a),

(b), (c), (d), (e), (f) and (g) of POCA which is premised on these
definitions; Chapter 2 of POCA in its entirety; and section
2(2) of
POCA.  The exact nature of the challenge in respect of each of
these provisions is set out below.
[8]
The
first respondent is the National Director of Public Prosecutions,
cited in his official capacity.  The second respondent
is the
Minister of Justice and Constitutional Development.  He too is
cited in his official capacity and as the Minister
responsible for
POCA.
[9]
In
terms of section 1 of POCA a “pattern of racketeering
activity” means—
“
the
planned, ongoing, continuous or repeated participation or
involvement in any offence referred to in Schedule 1 and includes
at
least two offences referred to in Schedule 1, of which one of the
offences occurred after the commencement of this Act and
the last
offence occurred within 10 years (excluding any period of
imprisonment) after the commission of such prior offence referred
to
in Schedule 1”.
[10]
Section
1 of POCA provides that “enterprise” includes—
“
any
individual, partnership, corporation, association, or other juristic
person or legal entity, and any union or group of individuals

associated in fact, although not a juristic person or legal entity”.
[11]
The
applicants refer to the challenges listed in (a) and (b)
collectively as the “definitional challenge”.
[12]
The
applicants call this the “procedural challenge”.
[13]
Written
and oral.
[14]
Everfresh
Market Virginia
(
Pty
)
Ltd
v Shoprite Checkers (Pty) Ltd
[2011] ZACC 30
;
2012 (1) SA 256
(CC);
2012 (3) BCLR 219
(CC) at para
17 and
Albutt
v Centre for the Study of Violence and Reconciliation and Others
[2010] ZACC 4
;
2010 (3) SA 293
(CC);
2010 (5) BCLR 391
(CC) at para
20.
[15]
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
[1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC).
[16]
Id
at para 162.
[17]
Id
at para 165.
[18]
Above
n 9.
[19]
Above
n 10.
[20]
National
Director
of Public Prosecutions and Another v Mohamed NO and Others
[2002]
ZACC 9
;
2002 (4) SA 843
(CC);
2002 (9) BCLR 970
(CC) (
Mohamed
NO
).
[21]
Id
at para 14.
[22]
Affordable
Medicines Trust and Others v Minister of Health and Others
[2005]
ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) (
Affordable
Medicines
).
[23]
Id
at para 108.
[24]
R
v Nova Scotia Pharmaceutical Society
(1992)
93 D.L.R (4th) 36; (S.C.C.) ((1992) 10 C.R.R (2d) 34) at 58 quoted
with approval by Ngcobo J in
Affordable
Medicines
above n 22 at para 108.
[25]
[2008]
ZASCA 97
;
2009 (1) SACR 406
(SCA) at para 8.
[26]
Id.
[27]
Item
21.
[28]
Item
26.
[29]
Affordable
Medicines
above
n 22 at para 108.
[30]
There
the context was
mens
rea
(state
of mind) where ignorance of the law was asserted.
[31]
S
v De Blom
1977
(3) SA 513
(A) at 530A-B.
[32]
Strafreg
3
ed (LexisNexis Butterworths, Durban 1992) at 140.
[33]
The
translation comes from
De
Blom
above
n 31 at 530A.  The original Afrikaans version reads:
“
Met
die opvatting dat wederregtelikheidsbewussyn
elementum
essentiale
van opset is, wil ek
saamstem.  ’n Mens handel slegs dan
dolo
malo
wanneer hy hom willens en wetens
in stryd met die regsorde stel.  Dit wil nie sê dat die
dader moet weet dat hy art.
W van Wet X van 19YZ oortree nie,
of dat die dader moet weet dat wat hy voornemens is om te doen met
hierdie of daardie strawwe
strafbaar is nie, maar slegs dat hy bewus
daarvan moet wees dat wat hy wil doen
regtens
ongeoorloof is.  Dit wil ook nie
sê dat die dader
seker
moet wees dat wat hy wil doen wederregtelik is nie, maar slegs dat
hy hom die voorstelling gemaak het dat wat hy wil doen
moontlik
regtens ongeoorloof kan wees, en hy
hom met hierdie moontlikheid versoen.”  (Emphasis in
original.)
“
Elementum
essentiale
” means “essential
element”.  Literally “
dolo
malo
” means “with bad
intention” but in context it means “with unlawful
intention”.
[34]
In
terms of the
South African Reserve Bank Act 90 of 1989
it is an
offence to copy or counterfeit any South African banknote or coin.
Section 2 of the Prevention of Counterfeiting
of Currency Act 16 of
1965 lists a range of offences relating to current coins and
banknotes.
[35]
Regulation
22 of the Exchange Control Regulations as promulgated by Government
Notice R1111 of 1 December 1961 reads:
“
Every
person who contravenes or fails to comply with any provision of
these regulations, or contravenes or fails to comply with
the terms
of any notice or order or direction issued or any permission or
exemption granted under these regulations, or who obstructs
any
person in the execution of any power or function assigned to him by
or under these regulations, or who makes any incorrect
statement in
any declaration made or return rendered for the purposes of these
regulations (unless he proves that he did not
know, and could not by
the exercise of a reasonable degree of care have ascertained, that
the statement was incorrect) or refuses
or neglects to furnish any
information which he is required to furnish under these regulations,
shall be guilty of an offence”.
[36]
Offences
itemised in Schedule 1 are: 1. murder; 2. rape; 3. kidnapping; 4.
arson; 5. public violence; 6. robbery; 7. assault
with intent
to do grievous bodily harm; 8. indecent assault; 9. the statutory
offence of (a) unlawful carnal intercourse
with a girl under a
specified age, (b) committing an immoral or indecent act with a girl
or a boy under a specified age, (c)
soliciting or enticing such girl
or boy to the commission of an immoral or indecent act; 10. any
offence under any legislation
dealing with gambling, gaming or
lotteries; 11. contravention of section 20(1) of the Sexual
Offences Act 23 of 1957; 12.
any offence contemplated in section
1(1) of the Corruption Act 94 of 1992; 13. extortion; 14.
childstealing; 15. breaking or
entering any premises whether under
the common law or a statutory provision, with intent to commit an
offence; 16. malicious
injury to property; 17. theft,
whether under the common law or a statutory provision; 18. any
offence under section 36 or
37 of the General Law Amendment Act 62
of 1955; 19. fraud; 20. forgery or uttering a forged document
knowing it to have been
forged; 21. offences relating to coinage;
22. any offence referred to in
section 13
of the
Drugs and Drug
Trafficking Act 140 of 1992
; 23. any offence relating to the dealing
in or smuggling of ammunition, firearms, explosives or armament and
the unlawful possession
of such firearms, explosives or armament;
24. any offence in contravention of section 36 of the Arms and
Ammunition Act
75 of 1969; 25. dealing in, being in possession of or
conveying endangered, scarce and protected game or plants or parts
or remains
thereof in contravention of a statute or provincial
ordinance; 26. any offence relating to exchange control; 27. any
offence
under any law relating to the illicit dealing in or
possession of precious metals or precious stones; 28. any offence
contemplated
in
sections 1(1)
and
1A
(1) of the
Intimidation Act 72
of 1982
; 29. defeating or obstructing the course of justice; 30.
perjury; 31. subornation of perjury; 32. any offence referred to in

Chapter 3 or 4 of this Act; 33. any offence the punishment wherefore
may be a period of imprisonment exceeding one year without
the
option of a fine; and 34. any conspiracy, incitement or attempt to
commit any offence referred to in this Schedule.
[37]
Part
of the argument is articulated thus:
“
The
crimes with which the applicants have been charged do not come close
to fitting the model of organised crime which, on the
respondents’
version, POCA was specifically designed to combat.  None of the
‘special features’ of organised
crime referred to by the
respondents to justify the wide ambit of POCA is present in the
indictments with which the applicants
have been charged.  This
fact points squarely to the defects in POCA, which is overbroad such
that it can cover both organised
and non-organised criminal
activity, and be used by the prosecuting authorities as a pressure
tool in respect of one activity
(alleged non organised criminal
activity) that has nothing to do with the purpose of POCA (the fight
against organised crime).
The
effect of the aforegoing is that excessive enforcement discretion is
delegated to the executive branch through the [National
Director of
Public Prosecutions], and through POCA an accused is at a material
risk of having racketeering charges selectively
and erroneously
applied (or not applied) in a manner which is motivated by personal
and/or political predilections of police
and prosecutors.
POCA, then, may simply be used as an arbitrary tool for negotiation
by the prosecution, and as a penalty-enhancer
in order to encourage
the accused to plead guilty to the predicate offences in violation
of the accused’s fair trial rights
in section 35 of the
Constitution.  It thus allows, for example, a joinder of
accused persons where no such joinder would
probably be
permissible.  Such accused is then caught up in a lengthy,
costly and massive criminal trial, the bulk of which
is in relation
to subject matter that has nothing to do with him.”
[38]
Founding,
supplementary and replying affidavits.
[39]
Snyman
Criminal
Law
5
ed (LexisNexis, Durban 2008) at 455:
“
Assault
consists in any unlawful and intentional act or omission—
(a)
which results in another person’s bodily integrity being
directly or indirectly impaired, or
(b)
which inspires a belief in another person that such impairment of
her bodily integrity is immediately to take place
.”
(Emphasis added.)
[40]
[1989] USSC 141
;
492
U.S. 229
(1989).
[41]
RICO,
legislation from the United States of America, the Racketeer
Influenced and Corrupt Organisations 18 U.S.C. §§

1961-1968.
[42]
RICO
provides that “‘pattern of racketeering activity’
requires at least two acts of racketeering activity,
one of which
occurred after the effective date of this chapter and the last of
which occurred within ten years (excluding any
period of
imprisonment) after the commission of a prior act of racketeering
activity”.  RICO then defines “racketeering

activity” to mean a number of specified offences.
[43]
Ferreira
above
n 15 at para 82.
[44]
S
v Makwanyane and Another
[1995]
ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 102.
[45]
Eyssen
above
n 25 at para 6.
[46]
Case
and Another v Minister of Safety and Security and Others; Curtis v
Minister of Safety and Security and Others
[1996]
ZACC 7
;
1996 (3) SA 617
(CC);
1996 (5) BCLR 609
(CC) (
Case
)
at paras 49-50.
[47]
Section
36(1) reads:
“
The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation
is reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors, including—
(a)
the nature of the right;
(b)
the importance of the purpose of the limitation;
(c)
the nature and extent of the limitation;
(d)
the relation between the limitation and its purpose; and
(e)
less restrictive means to achieve the purpose.”
[48]
The
list is not exhaustive because of the use of the word “including”
in the section.  On the general rule on
the use of “including”
in a statute, see
Minister
of Health and Another v New Clicks South Africa (Pty) Ltd and Others
[2005] ZACC 14
;
2006 (8) BCLR 872
(CC);
2006 (2) SA 311
(CC) at para
455.
[49]
The
relevant paragraphs of the founding affidavit read:
“
70.
Section 2(2) of POCA allows for hearsay, similar fact evidence or
evidence relating to the previous convictions of an accused
person
to be admitted in a prosecution under POCA ‘
notwithstanding
that such evidence might otherwise be inadmissible, provided that
such evidence would not render a trial unfair.
’
71.
I am informed that the laws of evidence in criminal matters have
developed in order to safeguard the fair trial rights of
the
accused, first under the common law and more recently under the
Constitution.  Evidence that is excluded in criminal
trials (be
it hearsay, similar fact evidence or evidence relating to previous
convictions) is excluded by the Court on the ground
that the
admission of such evidence would render the trial unfair.  Whenever
evidence is admitted under section 2(2) of
POCA which is contrary to
the law of evidence in criminal trials, it will
a
fortiori
render the trial unfair, in violation of an accused’s
rights under section 35 of the Constitution.”  (Emphasis

in original.)
[50]
That,
of course, would be subject to a justification analysis in terms of
section 36 of the Constitution.
[51]
Paragraphs
70 and 71 of the founding affidavit above n 49.
[52]
Schwikkard
and Van der Merwe
Principles
of Evidence
3 ed (Juta & Co Ltd, Cape Town 2009) at 24-7.  Section 42
of the Civil Proceedings Evidence Act 25 of 1965 reads:
“
The
law of evidence including the law relating to the competency,
compellability, examination and cross-examination of witnesses
which
was in force in respect of civil proceedings on the thirtieth day of
May, 1961, shall apply in any case not provided for
by this Act or
any other law.”
In
relation to criminal law, the Criminal Procedure Act 56 of 1955
generally retained the reference to the law of evidence as
it stood
on 30 May 1961 (Schwikkard and Van der Merwe above at 26-7).
On what the law was as at the mentioned date, in
S v Desai
1997 (1) SACR 38
(WLD) at 43G, Flemming DJP stated that our law of
evidence “is essentially a part of the law which is tied to
the law of
England.  (That, of course, does not exclude
different developments at a date subsequent to the end of the
statutory tying
of our law of evidence to that of the law of
England.)”  The “statutory tying of our law of
evidence”
can only be a reference to the law of evidence as at
30 May 1961 as provided for in the Acts referred to.
Likewise,
in Schwikkard and Van der Merwe at 26 the point is made
that the reference to the law as at 30 May 1961 was a circuitous way

of referring to the law of England; circuitous because of the
perceived inappropriateness of the direct reference – in

parliamentary Acts of the then new Republic – to the laws of
another country.  For completeness, I might mention that
30 May
1961 is the date South Africa ceased to be a colony of Britain and
became a Republic.
[53]
Zeffertt
and Paizes
The
South African Law of Evidence
2 ed (LexisNexis, Durban 2009) at 386.
[54]
S
v Ndhlovu and Others
[2002]
ZASCA 70; 2002 (2) SACR 325 (SCA).
[55]
Id
at para 13.  See also
S
v Molimi
[2008]
ZACC 2
;
2008 (3) SA 608
(CC);
2008 (5) BCLR 451
(CC) at fn 65.
[56]
Tapper
Cross
& Tapper on Evidence
12
ed (Oxford University Press, New York 2010) at 551.
[57]
See
Myers
v Director of Public Prosecutions
[1965]
AC 1001
at 1019G.  In
Jones
v Metcalfe
[1967] 3 All E.R. 205 at 208A-B Lord Diplock expressed himself
in similar terms, going so far as to say that the hearsay
rule “has
little to do with common sense”.  In
Ndhlovu
above n 54 at para 15, the following appears:
“
[The
Law of Evidence Amendment Act 45 of 1988
] was thus designed to
create a general framework to regulate the admission of hearsay
evidence that would supersede the
excessive
rigidity and inflexibility – and occasional absurdity –
of the common law position
.”
(Emphasis added.)
[58]
Tapper
above n 56 at 551.
[59]
Myers
above
n 57 at 1019G-1022B.
[60]
Id
at 1023D-E.
[61]
Vulcan
Rubber Works (Pty) Ltd v South African Railways and Harbours
1958
(3) SA 285
(A) at 296F-297B.  See also
Ndhlovu
above
n 54 at para 13.
[62]
Myers
above
n 57 at 1021F-1022B.
[63]
Id.
[64]
Tapper
above n 56 at 551 and 557.
[65]
Zeffertt
and Paizes above n 53 at 386.
[66]
Id.
[67]
(1880)
5 App Cas 623
HL at 640, quoted in
Myers
above n 57 at 1020G-1021A.
[68]
See
for example
R
v Khelawon
2006 CSC 57
;
[2006]
S.C.R. 787
;
[2006] 2 R.C.S. 787
;
R
v Mapara
2005 SCC 23
;
[2005]
1 S.C.R. 358
;
[2005] 1 R.C.S. 358
; and
R
v Khan
[1990] 2 S.C.R. 531; [1990] 2 R.C.S. 531.
[69]
Above
n 68 at 540f-i.  See also
Ares
v Venner
[1970]
S.C.R. 608.
[70]
Ndhlovu
above
n 54 at para 13.
[71]
45
of 1988.
[72]
Ndhlovu
above
n 54 at para 14.
[73]
Section
3(1)
provides:
“
Subject
to the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings,
unless—
(a)
each party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
(b)
the person upon whose credibility the probative value of such
evidence depends, himself testifies at such proceedings; or
(c)
the court, having regard to—
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi)
any prejudice to a party which the admission of such evidence might
entail; and
(vii)
any other factor which should in the opinion of the court be taken
into account,
is
of the opinion that such evidence should be admitted in the
interests of justice.”
[74]
By
“prejudice” I am not referring to the fact that the
hearsay evidence in issue may tend to incriminate an accused.

I am referring to prejudice that inheres in evidence of a hearsay
nature.
[75]
Writing
more than three decades ago on similar fact evidence, in
“
Similar-fact
Evidence in Criminal Proceedings”
(1977) 94
SALJ
399
at 399,
Zeffertt
expressed himself thus:
“
To
write on similar-fact evidence, were one untrammelled by authority,
would seem less like blundering into a minefield or, to
use the
metaphor of Wigmore, into a ‘vast morass of authority’
where it is ‘hopeless to reconcile the precedents’.

Wigmore said that at least 37 years ago.  Since then the
precedents have burgeoned, the morass has deepened, its paths
have
become more tortuous, slippery and false.  To use another
metaphor – from Lord Hailsham’s speech in
DPP
v Boardman
– one is ‘constrained
. . . to traverse the pitted battlefield of “similar fact”
evidence’.”
(Footnotes omitted.)
[76]
[1894]
AC 57.
[77]
Paizes
“A Different Approach to Similar Facts” in Visser (ed)
Essays
in Honour of Ellison Kahn
(Juta
& Co Ltd, Cape Town 1989) 238 at 247 – of course,
disregarding the references to prejudice attendant to jury trials.
[78]
[1975]
AC 421.
[79]
[1991]
2 AC 447.
[80]
Makin
above n 76 at 65.
[81]
Schwikkard
and Van der Merwe above n 52 at 74 and Zeffertt and Paizes above n
53 at 277.  Examples of the categories are
“system”,
“innocent association”, and “issue of identity”.
[82]
Above
n 78.  On laudatory commentary about the case, see Hoffmann
“Similar facts after
Boardman
”
(1975) 91
LQR
193.
[83]
Some
of the Law Lords, in making their propositions, affirm the
correctness of Lord Herschell’s words in
Makin
:
Lord Morris at 438F-441D; Lord Hailsham at 450H-453E; and Lord
Salmon at 461C-G.  Thus these Law Lords imported into
Boardman
whatever may have been questionable in the
Makin
rule.  In fact, what the exact
ratio
decidendi
of
Boardman
is, is not without ambiguity.  It is worth noting that two of
the Law Lords – Lord Wilberforce and Lord Cross –
do not
make any reference to
Makin
.
[84]
In
the interests of brevity, I have deliberately refrained from
referring to all the speeches of the other Law Lords.  Suffice

it to say that it is difficult to discern the
ratio
decidendi
of the judgment.  I refer to this one speech because of its
reference to the concept of “striking similarity”,
the
significance of which will become apparent when I deal with the
prevailing position in South Africa.
[85]
Boardman
above
n 78 at 444D-F.
[86]
Above
n 79.
[87]
Id
at 460D.
[88]
Id
at 460E-461A.
[89]
1991
(2) SACR 543 (A).
[90]
[2010]
ZASCA 120; 2011 (1) SACR 115 (SCA).
[91]
Above
n 78 at 444D-E.
[92]
S
v D
above
n 89 at
546E-F.
S
v D
does
not refer to
DPP
v P
which overruled
Boardman
on this aspect.  Perhaps the reason is that
DPP v P
had been decided merely three months to the day prior to the
delivery of
S v D
.
[93]
To
illustrate how unhelpful the notion of striking similarity may be,
let us take the facts of
R
v D
1958
(4) SA 364
(A).  This case involved sexual intercourse across
the colour line in contravention of section 1 of the Immorality Act
5
of 1927.
The
common features of the testimony of the women were that in each case
the woman testified that she had been employed as a domestic
helper
by the man’s wife; that the man had come to the kitchen at
05:30 still in his pyjamas and dressing-gown; that he
had suggested
intercourse; and that intercourse had taken place in the pantry
while his wife was still asleep.  Would the
similarity not have
been striking enough if, instead of always being in pyjamas, the
accused was clad differently on each occasion?
What about if
the women had testified that the sexual encounters had taken place
at times ranging from the early morning to the
afternoon and at
different places in the house, and not just the pantry?  This
immediately shows us that the idea of striking
similarity confounds
rather than illuminates the issue.
[94]
DPP
v P
above
n 79 at 461A.
[95]
2000
(2) SACR 1
(Z) at paras 8-10.
[96]
Above
n 90.
[97]
1946
AD 71.
[98]
R
v Matthews
and
Others
1960
(1) SA 752 (A).
[99]
Kruger
Hiemstra’s
Criminal Procedure
Issue
1 (LexisNexis, Durban 2013) at
24–14.
[100]
51
of 1977.
[101]
Section
211 reads:
“
Except
where otherwise expressly provided by this Act or the
Child Justice
Act 2008
, or except where the fact of a previous conviction is an
element of any offence with which an accused is charged, evidence
shall
not be admissible at criminal proceedings in respect of any
offence to prove that an accused at such proceedings had previously

been convicted of any offence, whether in the Republic or elsewhere,
and no accused, if called as a witness, shall be asked whether
he or
she has been so convicted.”
[102]
Hiemstra’s
Criminal Procedure
above
n 99 at
24–19.
[103]
Id.
[104]
Examples
of other categories of inadmissible evidence are previous
self-consistent statements; opinion evidence; evidence of character;

facts discovered by means of inadmissible confession; and confession
against another.
[105]
S
v Zuma and Others
[1995]
ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC) at para 16
states:
“
The
right to a fair trial conferred by that provision is broader than
the list of specific rights set out in . . . the sub-section.”
[106]
I
consciously refrain from saying “constitutionally
objectionable” because the absence of guidelines is in the
Constitution
itself.
[107]
National
Director of Public Prosecutions v King
[2010]
ZASCA 8
;
2010 (7) BCLR 656
(SCA) at para 5, which this Court
recently quoted in
Estate
Agency Affairs Board v Auction Alliance (Pty) Ltd and Others
[2014]
ZACC 3 at para 71.
[108]
Dawood
and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and
Another v
Minister of Home Affairs and Others
[2000]
ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC) at para 46
reads:
“
There
is, however, a difference between requiring a court or tribunal in
exercising a discretion to interpret legislation in a
manner that is
consistent with the Constitution and conferring a broad discretion
upon an official, who may be quite untrained
in law and
constitutional interpretation, and expecting that official, in the
absence of direct guidance, to exercise the discretion
in a manner
consistent with the provisions of the Bill of Rights.  Officials
are often extremely busy and have to respond
quickly and efficiently
to many requests or applications.  The nature of their work
does not permit considered reflection
on the scope of constitutional
rights or the circumstances in which a limitation of such rights is
justifiable.  It is true
that as employees of the state they
bear a constitutional obligation to seek to promote the Bill of
Rights as well.  But
it is important to interpret that
obligation within the context of the role that administrative
officials play in the framework
of government, which is different
from that played by judicial officers.”  (Footnote
omitted.)
[109]
In
De
Vries v The State
[2011]
ZASCA 162
;
2012 (1) SACR 186
(SCA) at para 52, the Court held that a
trained judicial officer is able to restrict the effect of otherwise
inadmissible evidence
to charges in respect of which it is
admissible and also to exclude it from consideration in respect of
charges in which it is
not.
[110]
See
Ferreira
above n 15 at para 14.
[111]
Burchell
South
African Criminal Law and Procedure Volume I: General Principles of
Criminal Law
4 ed (Juta & Co Ltd, Cape Town 2011) at 34 says:
“
In
its simplest form, the principle of legality proclaims that
punishment may only be inflicted for contraventions of a clearly

defined crime created by a law that was in force before the
contravention.”
See
also Snyman above n 39 at 36.
[112]
In
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998]
ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1458
(CC) at para 56
Chaskalson P stated:
“
The
rule of law − to the extent at least that it expresses this
principle of legality − is generally understood to
be a
fundamental principle of constitutional law.”
[113]
Burchell
above n 111 at 34-5; Snyman above n 39 at 36;
Director
of Public Prosecutions, Western Cape Minister of Justice v Prins
[2012]
ZASCA 106
;
2012 (2) SACR 183
(SCA) at paras 7-8.
[114]
[2001]
ZASCA 111
;
2002 (1) SA 419
(SCA) at para 1.
[115]
See
above n 9 for the definition.
[116]
Quoted
by Sampford in
Retrospectivity
and the Rule of Law
(Oxford University Press, New York 2006) at 13, quoting Bailey
Revolution
to Reconstruction: A Biography of William Blackstone
(
1723–1780
).
The more unreasonable method alluded to by Blackstone at the
beginning of the quotation is a ploy attributed to Caligula,
a Roman
Emperor.  He is reported to have written laws “in a very
small character and hung them above high pillars
the more
effectually to ensnare people.”  (See Sampford at 11.)
[117]
[1999]
ZASCA 101
;
2000 (1) SA 1127
(SCA) at para 36.
[118]
Sampford
above n 116 at 11.
[119]
Id
at 10.
[120]
See
Smead “The Rule against Retroactive Legislation: A Basic
Principle of Jurisprudence” (1935-36) 20
Minnesota
Law Review
775.
[121]
Genrec
Mei
(
Pty
)
Ltd
v
Industrial Council for the Iron, Steel, Engineering, Metallurgical
Industry and Others
[1994] ZASCA 143
;
1995 (1) SA 563
(A) at 572E:
“
It
is settled law that there is a strong presumption against
retrospectivity of a statute, and that hence its operation should
be
construed as prospective only unless the Legislature clearly
expressed a contrary intention.”
See
also
S v Mhlungu
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995
(7) BCLR 793
(CC) at para 37.
[122]
See
Executive
Council of the Western Cape Legislature and Others v President of
the Republic of South Africa and Others
[1995] ZACC 8
;
1995 (4) SA 877
(CC);
1995 (10) BCLR 1289
(CC) at
para 52.
[123]
Elran
above
n 2 at para 67.
[124]
In
Mohamed
NO
above
n 20 at para 15, Ackermann J noted that the problems POCA targets
“make a severe impact on the young South African
democracy”.
[125]
S
v Coetzee and Others
[1997]
ZACC 2
;
1997 (3) SA 527
(CC);
1997 (4) BCLR 437
(CC) (
Coetzee
)
at paras 162 and 176.
[126]
Burchell
above n 111 at 54 and Snyman above n 39 at 152.
[127]
Coetzee
above
n 125 at para 177.
[128]
Burchell
above n 111 at 55.
[129]
Above
n 125 at para 177.
[130]
Burchell
above n 111 at 423 and Snyman above n 39 at 208.
[131]
Burchell
above n 111 at 423.
[132]
Id
at 433.
[133]
[1987]
ZASCA 148
;
1988 (4) SA 561
(A) at 578E-G.
[134]
Biowatch
Trust v Registrar, Genetic Resources, and Others
[2009]
ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) (
Biowatch
)
at paras 21-3 and
Affordable
Medicines
above
n 22 at para 138.
[135]
Biowatch
above
134 at para 24.