Recent Case: Law of evidence

• Pages: 153-168
• Published date: 06 July 2021
• Citation: (2021) 34 SACJ 153
• Date: 06 July 2021
• DOI: https://doi.org/10.47348/SACJ/v34/i1a9
• Author: Whitear-Nel, N.

Law of evidence

NICCI WHITEAR NEL

University of KwaZulu-Natal

Bilankulu v S (188/2020) [2020] ZASCA 114 (29 September

2020)

In the case of Bilankulu v S (188/2020) [2020] ZASCA 114 (29Septem ber

2020) the appellants raised three grounds of appeal against their

convictions of murder, the unlawful hunting of rhinoceros and

unlawful posses sion of a rearm and ammunition. The rst was that

the evidence of the trap was inadmissible in ter ms of s 252A of the

Criminal Procedure Act 51 of 1977 (Criminal Procedure Act), because

the trap had gone beyond simply creating an opportunit y for the

commission of the offence. The second was that the cell phone records

which were used to corroborate the evidence of the trap should not

have been admitted since they had not been part of t he docket and the

appellants had not had knowledge of them before the trial and they

were only disclosed relatively late in the proceedings. The thi rd issue

related to whether the state had proved dolus to the extent necessary

to sustain a conviction of murder. Only the rst t wo grounds of appeal

will be discussed in this note.

Entrapment

Mr Khosa (the trap) was employed as a eld ranger and ranger trainer

by a game reserve (Letaba). In August 2012, he was approached by

a Mr Ngwenya who expressed a wish to hunt rhino in the Letaba

reserve. He reported this to his superiors who told him to cooperate

with Ngwenya and keep them apprised of developments. After he

had met with Ngwenya in connection with the rhi no hunting, he was

registered as a police informant. L ater, Khosa was introduced to the

second appellant with whom he arranged for a hunt on 12 January

2013. The second appellant arrived with the rst appellant and one

other man. Two rhinos were shot and injured but managed to escape.

The poachers ed the scene. Khosa suggested that they ret urn on

14January 2013. Khosa and the police ofcials then ar ranged for the

poachers to be ambushed on that day (para [5]).

On 14 January 2013, the rst appellant carried the re arm, and Khosa

carried the axe. The second appellant stayed with t he vehicle, and an

accomplice accompanied the rst appellant and Khosa. Khosa g uided

them to the place of the ambush (para [11]). As they proceeded, Khosa

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(2021) 34 SACJ 153

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spotted a ranger lying in wait with a gu n pointing towards them. He

dropped to the ground. Shots were red, between the ambush and

the poachers, and a ranger was killed (para [6]). It was not clear who

red the shot that killed the ra nger. Both appellants were ultimately

arrested (para [7]).

One of the issues was whether the entrapment evidence was

admissible in terms of s 252A of the Crim inal Procedure Act.

The state argued that s 252A of the Crim inal Procedure Act had

no application because a police ofcer was not involved. The court

rejected this because K hosa had been introduced to the police and

registered as an informer (para [11]) and the state did not prove that

the lead police ofcer, Fourie, was not involved in the planning of the

ambush (para [12]).

The appellants argued that the com mission of the offence was

facilitated by the police and/or the game reserve authorities through

Khosa. He had been told to encourage the poachers to come to the

reserve and they would not have been able to enter the reserve without

his help. The appellants therefore argued that the conduct had gone

beyond simply providing an opportunity for the comm ission of the

offence and that the evidence should be excluded (para [13]).

The court star ted by saying that the provisions of s 252A Criminal

Procedure Act were frequently misunderstood, not withstanding

the clarity provided in the Kotze v S (2010 (1) SACJ 100 (SCA) case,

para [14]). It held that the provisions of s 252A explicitly permit the use

of traps and undercover operations in order to uncover the commission

of offences. And evidence so obtained is automatically admi ssible as

long as the trap goes not further than providing an opportunit y for the

commission of the offence (para [15]). When the conduct goes beyond

simply providing an opportunity for the com mission of an offence, the

court may nevertheless admit it in ter ms of subsec (3) which requires

an investigation into the methods by which the evidence was obtained

and the impact its admission would have on the fairness of the trial

and the administration of justice. The question of whether the conduct

went beyond simply providing an opportunity for the commission of

the offence is resolved by a factual enquiry ta king into account the

factors set out in s 252A(2)(a)–(n), which must be weighed holistically

and cumulatively (para [16]). Not all of them would be relevant in

every case, and the court identi ed s 252A(2)(a), (b), (d), (e), (f), (g),

(j) and (m) as being relevant in the case before it (para [17]).

As regards subsec 2(a) the court found it unlikely that the prior

consent of the Director of Public Prosecutions was obt ained for the

trap operation, although no evidence on this was led. Th is would

militate against admission of the evidence [para 18]. (However, in the

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