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[2014] ZAWCHC 211
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Roodman v S (A596/13) [2014] ZAWCHC 211 (23 October 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case Number: A596/13
DATE: 23 OCTOBER 2014
In the matter between:
JUAN
ROODMAN
....................................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
DELIVERED ON 23 OCTOBER 2014
BOQWANA, J
Introduction
[1] The appellant appeared before the
Regional Court in Blue Downs having been charged with one count of
contravention of Regulation
36(1) (b) alternatively Regulation 36(1)
(a) of the Regulations in terms of the
Marine Living Resources Act
No. 18 of 1998
, together with one Raymond Puma (‘Raymond’),
who passed away during the course of the trial. The appellant was
accused
2. He was convicted and sentenced to:
1.1 a fine of R20 000.00 or 12 months
imprisonment; and
1.2 to 18 months imprisonment suspended
for 5 years on the following conditions:
1.1.2 Correctional supervision for 18
months with the following:
(a) House arrest;
(b) Community Service;
(c) Attending treatment programmes;
(d) Submission to monitoring by the
Commissioner of Correctional Services.
[2] The appellant was granted leave to
appeal against his conviction by the magistrate.
Background facts
[3] The charge against appellant
concerned an incident that occurred on or about 26 February 2006 at
or near Joostenbergvlakte where
the appellant was accused of being
involved, as part of a syndicate, in transportation and/or possession
of abalone that had been
shucked and not in a whole state to the
total of 190.6 kg, without an appropriate valid permit.
[4] During November 2005, the
Directorate of Special Operations (‘DSO’) conducted an
undercover operation in terms of
section 252A
of the
Criminal
Procedure Act, 51 of 1977
(‘CPA’), at premises in Betty’s
Bay pursuant to the receipt of information from an unnamed source
about illegal
abalone activities that were conducted at a
smallholding in San Souci in Sir Lowry Pass Village in Somerset West.
[5] On 2 December 2005, Harry Evans
(‘Evans’), who later became a state witness, and his son,
Brendan, were caught whilst
attempting to collect the abalone stored
on the premises. It became apparent from the questioning of Evans by
the DSO that Evans
and Brendan, were merely middlemen and the bigger
role players involved in the syndicate were two Chinese men by the
names of Zimming
Yuan (known as David) and Long Cai Wu (known as
Jason). Another big role player, who was an ‘associate’
of the two
Chinese men, was one Denver Langenhoven (‘Langenhoven’),
who had a cooling facility, in Woodstock and handled all the
export
administration, packaging and freezing of the abalone. The abalone
would after processing and packaging be exported to Hong
Kong.
[6] Evans and his son offered to assist
the DSO in their investigations. Evans agreed to be used as an agent.
One Paul Rossouw (‘Rossouw’)
also agreed to be used as a
DSO agent to accompany Evans in all the deals in order to corroborate
Evans as a witness at the later
stage. The purpose of Evans and
Rossouw acting as agents was to identify the providers of the abalone
as well as anybody else
who might be involved in the illegal
activities of the syndicate. They had to also identity the modus
operandi of the syndicate.
[7] Evans testified that he worked as
an employee of David. His job was to obtain abalone from the
suppliers and process it. These
suppliers were all introduced to him
by Jason. The abalone received from the suppliers was illegal. The
abalone processing involved
washing, cooking, drying, sorting and
packing it according to sizes. The dried abalone was then transported
to Johannesburg.
[8] Rossouw testified that during the
six months period that he and Evans worked undercover he observed
four different scenarios
on how the syndicate operated. The first
scenario was that on instructions of David they would rent premises
to receive shucked
abalone from the supplier. They had premises in
Betty Bay for a couple of months and thereafter in Okavango
Industrial area in
Brackenfell. Suppliers would buy abalone at the
premises. In the second scenario the abalone would be collected from
the suppliers.
They would meet the suppliers at the predetermined
location to fetch abalone loaded in a vehicle. On the third scenario
they
would transfer the abalone from the supplier’s vehicle to
their own vehicle. With regard to the fourth scenario he and Evans
would hand over the vehicle to the suppliers and wait for the
supplier, who would collect the abalone and bring it back to them.
They would then take the abalone to Langenhoven’s factory in
Woodstock for processing, packaging and exportation.
[9] Evans testified that, on 23
February 2006, whilst he was in his office at the workshop, he
received a telephone call from David
just after 10:00 in the morning.
David gave him a name and number of a person who would contact him.
Shortly thereafter he received
a telephone call from the person and
number that David informed him about. The person identified himself
as Raymond. Raymond informed
him that they needed to make
arrangements for Evans to fetch the abalone from him (Raymond). The
person told him to meet him at
Southern Lodge in Victoria Street in
Plumstead at approximately 12:00 midday. After the conversation with
Raymond, Evans telephoned
the Investigating Officer, Johannes Jacobus
Strydom (‘Strydom’), informing him about his arrangements
with Raymond.
He then left with Rossouw, his co-agent, to meet
Raymond in Plumstead. They were driving in a Toyota Hilux Bakkie
which belonged
to the DSO. The Bakkie did not have a canopy. At the
back of the bakkie was a blue plastic canvas. When they arrived at
their
destination they met a person who introduced himself as
Raymond. Evans explained to Raymond that they had to place the
abalone
in the middle of the canvas and he must fold the sides over
the abalone like an envelope so that there would be no liquid
leakages
from the bakkie. At that stage he did not know whether the
abalone was frozen or fresh. Rossouw who was driving gave the keys of
the bakkie to Raymond. Raymond drove off with the bakkie, whilst
Evans and Rossouw waited. He then saw Strydom. At that moment,
Raymond came back and parked the bakkie behind Strydom, i.e. where he
had picked it up in the first instance. Evans could see that
there
was something underneath the canvas. Raymond gave the keys back to
Rossouw and left. They opened the blue canvass they could
see that it
was shucked abalone. Evans never had contact with Raymond again. This
background is important, although it did not
involve the appellant
but his employer, the late Raymond. The incident that directly
involves the appellant is the one I deal
with below.
[10] On 26 February 2006, on his way
from the factory to his house, Evans received a telephone call from
Raymond again from the
same cell number as before. Raymond wanted
arrangements to be made for Evans to fetch abalone from him. Evans
told Raymond to phone
David, his employer, first so that David could
be made aware of the deal and make arrangements for payment for the
abalone. Evans
phoned Strydom to inform him about the transaction
that was to take place. He then phoned Rossouw his co-agent and
arranged to
meet him. David then phoned Evans after which Raymond
phoned Evans again. Raymond told Evans that his employees would meet
Evans
at the Joostenbergvlakte turn-off at 18:00. He told him that
they would be driving a BMW. In the meanwhile Evans met Rossouw at
Engen Garage in Okavango. Raymond called again to enquire if they
were near the meeting place. Rossouw drove the bakkie to
Joostenbergvlakte
whilst Evans followed with the Mercedes Sprinter
bus that he was driving.
[11] They saw the BMW. Rossouw parked
the bakkie in front of the BMW with the cars facing each other. Evans
parked behind Rossouw.
Evans phoned Raymond again to inform him that
they had arrived at the meeting place. Evans could see that there
were two white
people sitting in the front seats of the BMW. Evans
got out of the bakkie, went to the BMW, by the driver’s window,
and introduced
himself. The driver of the BMW confirmed that he was
working for Raymond. Evans bent down to look at the person’s
face. At
the time of the conversation he was standing next to
driver’s door and was about 30cm from that person. While they
were talking,
the person was looking at him. The driver of the BMW
then told Evans to follow him to a safe place where they could swop
vehicles.
Evans then advised the driver that Rossouw would follow and
he would remain behind to keep watch. He did not look at the
passenger’s
face, but noticed that both gentlemen in the BMW
were quite tall and were sitting quite high in the car. He noted the
colour of
the BMW as metallic and the registration number as CF
42444. The vehicle had MAG wheels on. He also noticed the vehicle
parked
outside the court building during the trial, with the same
colour and registration number. Rossouw followed the BMW with the
bakkie
and Evans got left behind. The BMW and the bakkie went out of
his sight and Evans waited next to the road at the Joostenbergvlakte
turn-off. At this point the bakkie came back driven by the two people
who were in the BMW. He observed that the same person who
drove the
BMW also drove the bakkie. The two people drove away. A while later,
he saw in his rear view mirror the bakkie coming
towards his
direction. The bakkie turned left into the road where the bakkie and
BMW had been driven to swop vehicles. A little
while later, the
bakkie came back being driven by Rossouw. He could see folded blue
canvass at the back of the bakkie and he could
see that there was
something beneath.
[12] Raymond phoned again to say that
one of his employees left their cell phone in the bakkie. He took the
phone to Joostenbergvlakte
turn-off, where they had met with
Raymond’s employees. He saw the BMW again and the same people
that he had seen earlier
were seated in the BMW in front. He went to
the driver’s side again and then bent down to give him the cell
phone. The driver
thanked him. At that stage he made sure that he
made the right observations of the person. The driver had a scar on
his forehead.
The scar was not very noticeable if one was far away.
One had to be near to see it. It was a small mark. He was glad for
the second
opportunity because his job was to identify people. The
bakkie had plastic bags containing fresh Abalone weighing 190.6 kg.
Samples
were taken and placed into forensic bags. The abalone was
then processed. Meanwhile Langehoven advised Evans not to bring
abalone
to the processing plant in Woodstock because the police were
busy in the street. It was however later processed at Woodstock.
Rossouw corroborated Evans in material
respects. There is no need to repeat all his evidence except where
material, such as in
the aspect of identification, which I deal with
below.
[13] When Rossouw followed the BMW with
the bakkie for the purposes of swopping cars, he parked opposite the
Cape Garden Centre.
No other people were present except him and the
two occupants of the BMW vehicle. The men in the BMW got out of the
vehicle. Rossouw
got out of the bakkie also and the three stood
behind the bakkie. That is when Rossouw gave the driver of the BMW a
first clear
look. He concentrated on the driver because he was the
more active of the two men. The driver was only a metre away from
him when
he made these observations and it was still light. He
observed that the driver was a tall white male with dark curlish
hair. He
observed the driver for about a minute and a half to two
minutes because they were in close proximity. The suspects left with
the
bakkie and he remained with the BMW. Whilst in the BMW he began
to look for evidence. He found a driver’s licence containing
the name, initials and ID number of the driver and made a note of the
licence disc. He learnt that the driver’s name was
F J Roodman.
He saw the face of the white man in the photograph in the driver’s
licence whom he identified as the same man
who was the driver and to
whom had just spoken. He gave the picture in the driver’s
licence a good look during the five to
ten minutes he spent in the
BMW waiting for the two men to return just to confirm his
observations a second time. Upon the return
of the two gentlemen with
the bakkie, Rossouw double-checked the identity of the driver with
the photo he had just seen. The same
person who drove the BMW also
drove the bakkie. When he got out of the bakkie, Rossouw looked at
his face and walked close alongside
the bakkie right up to the
driver. He observed the driver on their return for at least two
minutes and was sure that the person
who drove the BMW was the same
as the one on the driver’s licence. He also confirmed the
registration numbers and colour
of the BMW. He further confirmed that
the two men came back with the load of abalone at the back of the
bakkie.
[14] The magistrate concluded that
Evans and Rossouw were very impressive witnesses who gave a clear and
coherent account of the
events they observed. He found that each of
them had the opportunity to view the faces of the appellant and his
co-accused, Raymond.
He found that both witnesses were not shaken
under cross-examination and their evidence accorded with the
probabilities and their
version was the one to be preferred.
[15] The appellant primarily raises
three main grounds of appeal, being that: the state failed to present
evidence that the principal
parties, i.e. David and Raymond, were not
in possession of a permit; that the appellant was not properly
identified and the magistrate
erred in failing to appreciate the wide
ranging material differences between the evidence of Evans and
Rossouw; and finally, that
the magistrate did not properly consider
the appellant’s alibi and other relevant evidence.
Evaluation
Identification
[16] The appellant put his identity in
issue. It is trite that evidence of identification should be treated
with caution. In S v
Mthetwa 1972(3) SA 766 (A) at 768A the Court
said the following:
‘Because of the fallibility of
human observation, evidence of identification is approached by the
Courts with some caution.
It is not enough for the identifying
witness to be honest: the reliability of his observation must also be
tested. This depends
on various factors, such as lighting,
visibility, and eyesight; the proximity of the witness; his
opportunity for observation,
both as to time and situation; the
extent of his prior knowledge of the accused; the mobility of the
scene; corroboration; suggestibility;
the accused’s face,
voice, build, gait, and dress; the result of identification parades,
if any; and, of course, the evidence
by or on behalf of the accused.
The list is not exhaustive. These factors, or such of them as are
applicable in a particular case,
are not individually decisive, but
must be weighed one against the other, in the light of the totality
of the evidence, and the
probabilities..’
[17] In the present matter, the
witnesses testified that when they made observations it was still
light. They both identified the
driver of the BMW as a tall white man
and saw him at close proximity. Evidence is clear that they both had
sufficient opportunity
to look at his face on two occasions. Evans,
whilst talking to the driver, bent down to observe him and noticed a
scar the second
time around. Rossouw not only saw the face but he
compared the person he had just seen with the person in the
photograph of the
driver’s licence. He had enough time to study
the driver’s licence and to have a second look in order to make
sure
that the person in the picture and the driver were one and the
same person. This is not a case where the perpetrator quickly
vanished
from the scene without his face being noticed. The
witnesses had plenty of time to look at the appellant.
[18] It could not simply be
coincidental that the BMW that belonged to the appellant’s
family was identified in the incident,
his driver’s licence was
found in the vehicle, with the person in the photograph looking like
the driver of the BMW on that
day, the very same vehicle was spotted
outside the court building during the trial and Raymond happened to
be known by the appellant
as a friend. The appellant lived in
Joostenbergvlakte, his house is approximately five minutes from where
the driver of the BMW
was identified on 26 February 2006 by Evans and
Rossouw. The cell phone records also strengthened the state’
version, albeit
recording contact between Raymond and Evans.
[19] The fact that Evans and Rossouw
had no dealings with the appellant prior to the incident does not
weaken the state’s
case. The features observed on the scene
such as the scar were also observed in Court. The witnesses also had
sufficient time
to observe the identity of the driver. The appellant
also confirmed that he had a scar. The magistrate was correct in his
finding
that dock identification is not inadmissible, but that it
should be considered together with other evidence. In the totality of
all the evidence the identification of the appellant by Rossouw and
Evans was reliable.
[20] The magistrate did not give
elaborate reasons as to why he found that Evans and Rossouw were the
most impressive witnesses,
save to mention that they gave clear and
coherent account of what they observed. This however does not give
rise to a misdirection.
The approach to be adopted by the court of
appeal on the appeals based on fact is well known. In R v Dhlumayo
and another
1948 (2) SA 677
(A) at 706, Davis AJA stated:
‘8. Where there has been no
misdirection on fact by the trial Judge, the presumption is that his
conclusion is correct; the
appellate court will only reverse it where
it is convinced that it is wrong.
9. In such a case, if the appellate
court is merely left in doubt as to the correctness of the
conclusion, then it will uphold it.
10. There may be a misdirection on fact
by the trial Judge where the reasons are either on their face
unsatisfactory or where the
record shows them to be such; there may
be such a misdirection also where, though the reasons as far as they
go are satisfactory,
he is shown to have overlooked other facts or
probabilities.
11. The appellate court is then at
large to disregard his findings on fact, even though based on
credibility, in whole or in part
according to the nature of the
misdirection and the circumstances of the particular case, and so
come to its own conclusion on
the matter.
12. An appellate court should not seek
anxiously to discover reasons adverse to the conclusions of the trial
Judge. No judgment
can ever be perfect and all-embracing, and it does
not necessarily follow that, because something has not been
mentioned, therefore
it has not been considered.’
[21] Evans and Rossouw were clear and
consistent. They were not overly shaken in cross-examination. They
were extensively cross-examined
but stuck to their testimonies.
Rossouw and Evans dealt with over 30 consignments and identified a
fair amount of suspects. The
explanation that the statements to the
police only included what they thought important at the time is
reasonable. The magistrate
was therefore correct by accepting Evans
and Rossouw’s evidence.
Permit
[22] Having found the appellant to have
been on the scene on the day in question, the magistrate did not deal
with the issue of
the permit. Counsel for the appellant submitted
that the magistrate erred in failing to do so. Whilst, it could have
been seen
to render the judgment more complete for the magistrate to
give his views on the permit issue, his failure to do so does not
amount
to a misdirection in my view. See R v Dhlumayo supra. Not only
did the appellant deny that he was at the scene, he conceded that
on
that day in question he did not have a valid abalone permit which was
registered in his name. It was therefore not necessarily
crucial for
the magistrate to determine the issue of the permit. Be that as it
may, this Court has had an opportunity of considering
the record
independently and its views on the permit aspect follow hereunder.
[23]
Regulation 36(1)
(a) and (b) read
as follows:
‘(1) No person shall –
(a) engage in fishing, collecting,
disturbing, keeping, controlling, storing, transporting or be in
possession of any abalone, except
on the authority of a permit; or
(b) transport or be in possession of
any abalone that is not in the whole state, except on the authority
of a permit; or...’
[24]
Section 250
(1) of the CPA
stipulates that: “If a person would commit an offence if he –
(a) Carried on any occupation or
business;
(b) Performed any act;
(c) Owned or had in his possession or
custody or used any article, or
(d) Was present at or entered any
place, without being the holder of a licence, permit, permission or
other authority or qualification
(in this section referred to as the
“necessary authority”) an accused shall at criminal
proceedings upon a charge that
he committed such an offence, be
deemed not to have been the holder of the necessary authority, unless
the contrary is proved.”
[25] The submission raised on behalf of
the appellant on the issue of the permit is that once a principal or
a company is in possession
of a permit, the authority should extend
to the agents. It is argued that both Evans and the appellant were
employees and agents
of David and Raymond respectively; David was a
partner at Big Cedar, an entity alleged to have been in possession of
a licence;
and that David and Raymond had permits to purchase,
process and legally export abalone.
[26] Evans testified clearly that the
activities that he was involved in were illegal. He testified that
the abalone they received
from the suppliers was shucked and was
illegal. The law is quite clear that in order to be in lawful
possession of or to legally
transport abalone that is shucked,
authority of a permit is required. Evans, Rossouw and the appellant’s
activities on 26
February 2006 fell within those activities
prohibited by the Regulations. To argue that they did not need a
permit by virtue of
their principals holding a permit is nonsensical.
Furthermore there was no evidence presented to the effect that the
permit allegedly
held by Big Cedar covered transportation or the
possession of shucked abalone nor was it stated that Raymond had a
permit covering
transportation and possession of abalone.
[27] Evans testified that the permit
Big Cedar held did not cover their activities because certain
regulations were applicable before
a person could transport abalone.
The actions of all the parties involved on the day of the incident,
i.e. 26 February 2006, were
indicative of the fact that they were
aware that what they were doing was illegal. There was no evidence to
contradict that of
Evans in this regard. In addition to that the
driver of the BMW in particular wanted vehicles to be swopped in the
secluded area
where no one could see.
[28] It is also important to mention
that none of the abalone was processed through Big Cedar from the
evidence presented. To the
contrary, it was processed in
Langenhoven’s premises in Woodstock and packed in cardboard
boxes together with the fish from
Viking Fishing. Viking Fishing had
permits to export fish but not abalone. There were no abalone
permits. The abalone was mixed
with the fish from Viking Fishing so
as to disguise it from those inspecting the product at the harbour.
All these actions, in
my view, suggest that those involved knew that
what they were doing was illegal.
[29] Lastly, nowhere in his evidence
did the appellant state that he was employed by Raymond or Big Cedar
as matter of fact, and
therefore covered by Raymond’s or Big
Cedar’s alleged permit nor did he state that he in fact had a
permit on the day
in question. He excluded himself from agency. He
can therefore not rely on it as it would not be applicable to him. He
placed his
identity in issue and conceded that he did not have a
valid abalone permit.
[30] In the absence of evidence proving
that the appellant had the authority of the permit to possess or
transport abalone that
had been shucked, it must be deemed that he
did not have the authority in terms of
Regulation 36(1)
(b).
Appellant’s case
[31] The appellant denied any
involvement in the incident of 26 February 2006. He raised an alibi
that on that particular day he
was watching rugby with his father,
Frederick Roodman (‘F Roodman’) and his vehicle, a
bakkie, had gone for repairs.
The BMW belonged to his father and it
was not driven by him on that day. In fact his father’s
testimony was that he had given
the vehicle to Nicholas, the
appellant’s younger brother. The alibi was not raised in the
appellant’s plea explanation
nor was it put to any of the
state’s witnesses except for when Strydom was re-called for
cross examination to deal with the
statement made by F Roodman.
Surely, the appellant would have known where he was on the day of the
incident and would have put
this defence upfront to the witnesses of
the state i.e. Evans and Rossouw who identified him as being one of
the two white men
identified on 26 February 2006.
[32] It is accepted that the appellant
has no onus to establish the alibi and that if it might reasonably be
possibly be true he
must be acquitted. The alibi must however be
tested together with other evidence and not in isolation. See R v
Hlongwane 1959 (3)
337 (AD) at paragraphs 340 H to 341 B.
[33] The appellant criticizes the state
for failing to disclose the affidavit of F Roodman, from the defence
and the court, which
showed that the appellant’s brother was
the driver of the vehicle on the day in question, until very late.
The statement
was apparently taken one year after the trial had
commenced and after Strydom was cross examined. This was cured by the
recall
of Strydom. Criticism of the magistrate on this issue is
without merit.
[34] Furthermore, the statement did not
deal with the whereabouts of the appellant on that day. It simply
referred to Nicholas.
F Roodman testified that he informed the
investigating officer that the appellant was with him watching rugby
on that day. This
crucial information, was however not included in
the statement. There were inconsistencies between the appellant and
his father
as to what teams or games were watched that Sunday. All
this leaves an impression that the alibi was a belated fabrication.
The
totality of evidence provides strong support for a finding that
the appellant’s alibi is false.
[35] It must also be stated that the
appellant did not make a good impression as a witness. He
contradicted himself on many instances
and even changed his version
on numerous occasions. For example, he initially testified in cross
examination that the game he watched
was a Super 14 game between the
Stormers and a team he could not recall. When pressed on this issue,
the second time under cross
examination, he changed his version and
stated that he had checked on the internet after first cross
examination and had discovered
that the game was between Wales and
Ireland. He however could not remember whether he watched any rugby
the previous day or two.
The appellant was not a truthful and a
credible witness. I am in agreement with the magistrate’s
remarks that the record
speaks for itself in so far as the
appellant’s inconsistencies are concerned.
[36] In the circumstances, the appeal
has no merit and should be dismissed.
[37] I therefore propose the following
order:
1. The appeal is dismissed and the
conviction and sentence are confirmed.
BOQWANA J
Judge of the High Court
I agree, it is so ordered
SALDANHA J
Judge of the High Court