S v Ndwambi

• Jurisdiction: South Africa
• Judge: Navsa ADP, Leach JA, Willis JA, Schoeman AJA and Meyer AJA
• Judgment Date: 31 March 2015
• Citation: 2016 (2) SACR 195 (SCA)
• Docket Number: 611/2013 [2015] ZASCA 59
• Hearing Date: 11 March 2015
• Counsel: PW Nel for the appellant, instructed by the Justice Centre, Bloemfontein. AM Ferreira for the state.
• Court: Supreme Court of Appeal

Meyer AJA (Navsa ADP, Leach JA and Schoeman AJA concurring):

[1] Arising from an incident that occurred on 29 October 2003 at the Shell Ultra City, Kroonstad, where a fake rhinoceroses (rhino) horn was G sold in a police trap for R350 000, the appellant, Mr Muvhuso Calvin Ndwambi, and a co-accused were convicted in the regional court, Kroonstad, of the crime of fraud committed in the course of a police trap. The appellant was found to have been complicit in the transaction. He was sentenced to six years' imprisonment. The appellant appealed unsuccessfully to the Free State High Court against his conviction and H sentence. The court a quo, however, granted him leave to appeal to this court against both.

[2] The appellant contends in this court that the proven facts as found by the trial court did not establish all the elements of the crime of fraud. The evidence did not, he contends, prove either the required intent to I deceive, which is an aspect of the element of intent to defraud, or the element of prejudice.

[3] Inspector Oberholzer, who was attached to the Bloemfontein Diamond and Gold branch of the South African Police Service (SAPS), received information from an informer that the appellant's co-accused J

Meyer AJA (Navsa ADP, Leach JA and Schoeman AJA concurring)

A wished to sell a rhino horn. This prompted the police to set a trap at 11h00 on 29 October 2003 at the Shell Ultra City, Kroonstad (the filling station). Captain Oertel, who was attached to the same branch of the SAPS, was in command of the police action. He and Insp De Klerk, also a member of the same branch, went to the filling station ahead of B Oberholzer and the informer to observe and assist Oberholzer in the action. Upon their arrival they observed the appellant sitting in the driver's seat of a red Volkswagen Golf motor vehicle (the car) parked in the parking area of the petrol station, and his co-accused sitting next to him.

C [4] When Oberholzer and the informer arrived, Oberholzer too observed the car in the parking area, but the appellant and his co-accused were at that stage standing behind it. They parked next to the car. The appellant's co-accused walked to the driver's side of Oberholzer's vehicle and he was introduced to her as the prospective buyer of the rhino horn. She fetched a wrapped article from between the seats in the front of the D car and then climbed into the rear of Oberholzer's vehicle and informed him that it was the rhino horn. He unwrapped the article and it appeared to him to be real rhino horn. She told him that the rhino horn originated from Mozambique, that it belonged to the appellant and that the asking price was the sum of R350 000. Oberholzer requested her to call the appellant so that he could discuss the transaction with him, but she E refused, saying that the appellant was observing the surroundings to ensure that everything was in order. Her statement that the appellant was observing accorded with what appeared to Oertel and De Klerk. Oberholzer and the appellant's co-accused agreed to the asking price of F R350 000.

[5] Oberholzer gave a prearranged signal to his colleagues who then approached the appellant and his co-accused. Oertel introduced himself and the police officers to the appellant's co-accused and he arrested her. Oberholzer and De Klerk approached the appellant. They introduced themselves to him and Oberholzer arrested him. He immediately denied G that he knew his co-accused and said that he had only given her a lift from a nearby bridge to the petrol station. De Klerk's search of the car revealed that the appellant was a police officer — his police identification card, service pistol and police dockets were found. A few works of art belonging to the appellant's co-accused were also found in the boot of H the car.

[6] The appellant's co-accused conducted an arts-and-crafts business at Hartbeespoortdam. The appellant testified that he had been introduced to her during June/July 2003 because she had required transport for the conveyance of her works of art from Johannesburg to Brits. Since then, I at her instance, he had transported her on three occasions to Brits. His co-accused, however, denied that he had ever transported her anywhere before 29 October 2003. She, according to the appellant, had telephoned him early during the morning of 29 October 2003, while he was at home in Kagiso, and requested him to transport her to Kroonstad where she was scheduled to meet a client. According to the appellant, he J was on official duty that day but had decided not to go to work because

Meyer AJA (Navsa ADP, Leach JA and Schoeman AJA concurring)

he was tired. He contradicted himself by also testifying that he stayed off duty A because he was ill. The appellant acceded to the request to transport his co-accused to Kroonstad. He had driven from Kagiso to the Hillbrow Police Station where he was stationed. That was where they had agreed to meet. His co-accused had a few works of art and a plastic bag with her but he could not see what it contained and did not ask about B it. She had directed him to Kroonstad and to where he should park at the filling station. They had got out of the car but he merely stood around viewing the surroundings. He denied any complicity in the transaction and testified that he had been very surprised when the police officers arrived, arrested him and searched the car. He had seen the rhino horn for the first time at the police station, after his arrest. C

[7] It is not necessary to refer in any detail to the evidence of the appellant's co-accused. She, in turn, attempted to shift the blame to the appellant. She had travelled to the garage, she testified, to meet a client who was interested in buying her works of art. The appellant had D taken her there in order to sell his rhino horn to the same client, who was also interested in buying a rhino horn for display in his bar. The client had asked her to find him someone who would sell a rhino horn to him and the appellant was introduced to her as a person wishing to sell one. Hence their journey together to Kroonstad. She saw the rhino horn for the first time when it was shown to her at court. E

[8] The appellant's counsel conceded that the trial court correctly rejected the evidence of the appellant and that of his co-accused. That concession was correctly made. The appellant's exculpatory version was so wholly improbable as to be plainly untruthful and palpably false. I do not propose to go into all the unsatisfactory features of his F evidence referred to by the trial court in its well-reasoned judgment. I need only highlight a few matters which show the untruthfulness of his account.

[9] The appellant's version that his co-accused, on the occasions mentioned by him, would have travelled with her works of art from G Hartbeespoortdam to Johannesburg in order for him to then transport her from Johannesburg to Brits is wholly improbable. Hartbeespoortdam is much closer to Brits than Johannesburg is to Brits. Furthermore, the unavoidable inference is that the appellant and his co-accused had not gone to the filling station in order for the appellant to sell works of art to H a prospective buyer. The appellant's co-accused did not have any works of art with her when she got into Oberholzer's vehicle in order to negotiate the sale. She only took along with her what appeared to be a rhino horn. The works of art were found in the boot of the car immediately after their arrest. The fake rhino horn was the only object found in Oberholzer's vehicle. I

[10] But the matter goes further. The evidence relating to contact between their respective cellphones revealed 32 calls from the appellant's cellphone to that of his co-accused, and 38 calls from her cellphone to his during the period 22 – 29 October 2003. The appellant was unable to proffer any plausible explanation for the constant contact between their J

Meyer AJA (Navsa ADP, Leach JA and Schoeman AJA concurring)

A respective cellphones in the days running up to their attendance at the petrol station. Also, the appellant's denial to the police officers at the time of his arrest that he knew his co-accused is palpably false. That is what prompted the police to obtain the records relating to their cellphones. Clearly, that evidence was obtained in order to refute the appellant's version at the time of his arrest that he did not know B the co-accused and that he had merely given her a lift from a nearby bridge to the petrol station.

[11] The trial court's assessment of all the evidence, its adverse credibility findings relating to the appellant and his co-accused, and its rejection C of their evidence, cannot be assailed, nor can its favourable credibility findings concerning the three state witnesses — Oertel, Oberholzer and De Klerk. The accounts of the state witnesses were satisfactory and accord with the probabilities. They corroborated each other in material respects. A reading of the record leaves not the slightest doubt that all of D the state evidence was honest and accurate.

[12] It is common cause that the article sold was a mere imitation of a rhino horn. The trial court did not convict the appellant and his co-accused of the statutory offence of contravening s 14(2), read with ss 1, 11, 12, 40 – 42 and sch 3 to the Nature Conservation Ordinance 8 of E 1969 (FS) (the Nature Conservation Ordinance) with which they were charged in the alternative. Criminal liability, in terms of the provisions of the Ordinance, is imposed inter alia for the unauthorised possession, conveyance, buying and selling of 'any product from any part of the body of a wild or exotic animal of a species specified in Schedule 3'. A rhino F is so specified.

[13] This brings me to the appellant's first contention that the proven facts as found by...