S v Desai

• Jurisdiction: South Africa
• Judge: Flemming DJP
• Judgment Date: 20 November 1996
• Citation: 1997 (1) SACR 38 (W)
• Hearing Date: 04 November 1996
• Counsel: S J Coetzee for the appellant S X Mapoma for the State
• Court: Witwatersrand Local Division

Flemming DJP:

The appellant appeals against his conviction and the sentence which was imposed. The magistrate found that the appellant bought 116,2 g of unwrought gold at R3 400 from police inspector Kemp. The defence expressly admitted the said purchase. The reason the appellant nevertheless pleaded not guilty, was that the 'defence ... is one of entrapment ... [in] that he was indeed enticed and lured by the police informer into this illegal transaction.' C

I will refer to the 'informer' as a person who gave some information to the police, probably that the appellant was interested in buying unwrought gold. I will refer to the 'trap' as the person who participated in the sale with the object of taking part of the D observations which proved the appellant's participation in a forbidden transaction. The trap, police inspector Kemp, did not 'entice and lure' appellant in any sense different to the opportunity afforded by an ordinary intending seller of gold. Kemp met the appellant on 15 November 1995 at the premises of Bar Sell Out in Eloff Street. The appellant did not enquire much about Kemp as a person but enquired about the E quantity of gold which could be supplied, the price, the degree of purity, the basis of handing over payment, and the appellant's demand to test the available material before he bought. An appointment was made to meet at the appellant's flat on 20 November. On that date the appellant inspected the gold, asked about its mass, discussed and bargined about price and took the gold to be weighed. A small piece of the material F was broken off and the appellant took that away for testing. An agreement to meet was made for the main street of Maraisburg. The appellant, clearly having satisfied himself that he was buying unwrought gold, turned up, paid, and took possession of the gold. The agreed sign was given to other police officers. G

The reward promised to the informer by someone in the police force was not related to the appellant specifically. Inspector Kemp was not even aware of the appellant until 14 November. There is no trace of police sanction of or control over (or even contemporaneous knowledge of) either the informer making contact with appellant or what the informer said to the appellant. H

The trap gave evidence. The informer did not. This left the field wide open for the appellant to testify about what the informer had allegedly done. That it is often for various reasons undesirable or impossible for the police to produce an informer as a witness, is a state of affairs which, as the 'defence' raised in this case shows, creates an attractive prospect for an accused who is trapped to be acquitted, not because the I facts do not prove guilt, but because the accused was 'enticed and lured'. Courts should be aware of the risk. Courts have a duty to society in general not to share in the spirit of unduly promoting everything which can possibly assist towards acquittal, irrespective of the established truth. Unless the Court devotes itself adequately to the ascertainment of the truth and to acting in J

Flemming DJP

accordance therewith, society can be expected to make its own assessment of guilt A and to compensate with its own reactions for such failure and for indecisiveness or spinelessness of the Court.

That consideration must be borne in mind when deciding to what extent the allegations of the appellant against the informer can or should be recognised as a 'defence' and when asking whether the drafsman of the Constitution would have been so B irresponsible as to strike a balance which demands that even those who are known to have committed an illegal deed should nevertheless be acquitted. (The said consideration also requires proper scrutiny of the uncontradicted evidence about the enticement.)

Appellant's counsel submitted that although the admitted facts (and his client's own C evidence) brought appellant squarely within the terms of the statute, appellant was not guilty because he had the 'defence' of entrapment available which resulted in an absence of 'illegality'. Neither the Constitution of this country nor any other principle compels such a lack of logic. What the appellant did was forbidden by the statute. The D appellant, as he admitted, knew that he was doing something illegal. He, like any other citizen, was free to choose and was expected to resist temptation. The reasons which he found convincing for a decision to commit the crime are not ones which Act 20 of 1967 recognises as justification. It did not put him beyond the basic proposition that...