S v Dos Santos and Another
Jurisdiction | South Africa |
Judge | Cloete JA, Ponnan JA and Majiedt AJA |
Judgment Date | 27 May 2010 |
Citation | 2010 (2) SACR 382 (SCA) |
Docket Number | 726/07 |
Hearing Date | 03 May 2010 |
Counsel | T Möller for the first appellant.JL Vismer for the second appellant, instructed by the Legal Aid Board, Cape Town and Bloemfontein Justice Centre.M Breitenbach SC (with HM Slingers) for the State. |
Court | Supreme Court of Appeal |
Ponnan JA:
[1] Port Nolloth, notwithstanding its relatively small community of F approximately 12 000 residents and some 220 businesses, has become, so the evidence suggests, a hotbed of illicit diamond dealing and related activity. The reason is not hard to find - it is its proximity to rich veins of alluvial diamonds, established diamond mines and mining houses. It and other towns close to the Namibian border have witnessed a proliferation of diamond dealing syndicates. Because of the corrupting G and generally corrosive influence that with time becomes all too pervasive in such communities, a task team of the now disbanded Directorate of Special Operations, commonly known as the Scorpions, under one of its special investigators, Koos Jooste, was established. It was not the only operation of its kind, nor was it the first. It followed the South African H Police Service (SAPS) operations such as Steenbra and Solitaire in that general geographical area.
[2] For reasons that are not necessary to recount, the first appellant, Tony dos Santos, became the focus of this particular task team. On 17 January 2003 the task team sought and obtained from the judge I designated in terms of s 31 of the Interception and Monitoring Prohibition Act [1] an order in terms of s 2(2), authorising a surveillance operation of Tony's Auto Spares, a business enterprise managed and operated by the first appellant in Port Nolloth. Given that the premises
Ponnan JA
housing Tony's Auto Spares were secured by a high perimeter wall and A monitored by CCTV cameras, Jooste secreted a pinhole camera in what came to be described in the evidence as the 'buyer's room' of the building. From it, video images and audio feed were transmitted by radio link, in real time, to a house approximately one and a half kilometres away. There some members of the task team, in addition to recording B what was being transmitted onto video tapes, viewed the live feed on a monitor. Moreover, each of the monitoring crew maintained a log in which they made contemporaneous notes of what they witnessed and heard as it unfolded on the monitor in front of them.
[3] Unbeknown to the task team, the first appellant had also attracted C the attention of a unit of the SAPS. On 22 February 2003 that unit, armed with a search warrant that had been issued the previous day by the regional court president of the Cape regional division, conducted a search of Tony's Auto Spares and an adjoining residential unit that was housed under the same roof. The SAPS seized 153 unpolished diamonds D (including one partly polished diamond), cash to the value of R55 000 and diamond dealing paraphernalia such as a diamond scale, loupe, tweezers and pieces of paper with diagrammatic representations of diamonds and calculations on them. The first appellant was arrested, charged and released on bail. By that stage the task team had had the first appellant under close observation for approximately one month. E
[4] On 25 June 2003, Jooste sought and obtained, in terms of s 29 of the National Prosecuting Authority Act, [2] a warrant authorising the search of Tony's Auto Spares and the first appellant's home at Karee Avenue, Port Nolloth, and the seizure of items suspected of being connected to contraventions of, inter alia, the Diamonds Act [3] and the Prevention of F Organised Crime Act (POCA). [4] By 4 July 2003 Jooste had resolved, given the information that had been secured pursuant to the surveillance operation, that the time was ripe for him to execute the warrants. He thus deployed three units at approximately 9 pm to keep watch at Tony's Auto Spares, the first appellant's home, as well as the local cemetery that G the first appellant had taken to frequenting. Shortly before midnight the first appellant was observed entering Tony's Auto Spares. All three units descended on those premises. The warrant was served on the first appellant and in his presence his business, the entire building housing Tony's Auto Spares and the adjoining residential unit were searched. A video cassette recorder was employed to record the search. The search H proceeded into the early hours of the next morning. Various items were seized and the first appellant was arrested and taken into custody. The next afternoon the first appellant accompanied members of the investigating team to his home, which, in his presence, was also searched. Once again various items were seized. In total the second search yielded 24 unpolished diamonds and further diamond dealing paraphernalia. I
Ponnan JA
A [5] The first appellant was the first of nine accused indicted in the Cape High Court on a host of statutory contraventions. The broad hypothesis sought to be advanced by the State was that each of the accused to different degrees was party to a pattern of racketeering activity. The alleged activity consisted in the planned, ongoing, continuous or B repeated participation or involvement in contraventions of the Diamonds Act. In all, the first appellant was charged with 61 counts of contravening the Diamonds Act, six counts of contravening the Riotous Assemblies Act [5] (conspiracy to commit a crime) and two counts of contravening POCA (conducting or participating in racketeering activity C or managing an enterprise used for racketeering).
[6] The second appellant, Derek Mbatha, who had come to be identified, in consequence of the surveillance of the first appellant, as one of the alleged role players in the illicit diamond trafficking enterprise, was arrested approximately one year after the first appellant on 3 June 2004. He was charged with three counts - one of contravening the Diamonds D Act (dealing in unpolished diamonds), one of contravening the Riotous Assemblies Act (conspiracy to commit a crime), and one of contravening POCA (conducting or participating in racketeering activity or managing an enterprise used for racketeering).
[7] A protracted trial ensued. In all some 27 witnesses testified for the E State. At the close of the State case all of the accused, bar the two appellants, were found not guilty and discharged. Neither of the appellants testified in their defence. At the conclusion of the trial before Le Grange AJ (sitting with assessors) the first appellant was convicted on five charges of dealing in unpolished diamonds in contravention of F s 21 (b) of the Diamonds Act, and one charge of conducting or participating in racketeering activity in contravention of s 2(1) (e) of POCA. The second appellant was convicted on one count of dealing in unpolished diamonds in contravention of s 21 (a) of the Diamonds Act. On the convictions in terms of the Diamonds Act: before us it was common cause that the first appellant ought correctly to have been G convicted under s 20 and the second appellant under s 19. Nothing, however, turns on this. On the racketeering conviction the first appellant was sentenced to a term of eight years' imprisonment, and in respect of the five contraventions of the Diamonds Act he was sentenced to 12 months' imprisonment on each count. Those latter sentences were H ordered to run concurrently with the first. The first appellant's effective sentence was thus eight years' imprisonment. The second appellant was sentenced to a fine of R20 000 or imprisonment for a term of four years, half of which was conditionally suspended. The appeal in each instance against the convictions and sentences is with the leave of the court below.
I [8] The cornerstone of the State case was the evidence of the brothers Basson - Tim and Aubrey. Both were accomplices who were warned in terms of s 204 of the Criminal Procedure Act [6] (CPA). The former had
Ponnan JA
been in the first appellant's employ for some nine years prior to his arrest. A On 24 January 2003, Tim contacted the first appellant telephonically and informed him that his brothers Aubrey and Andre, who were then employed by Alexkor mine, sought a meeting with him. The purpose of that meeting, so Tim and Aubrey testified, was to enable them to dispose of certain unpolished diamonds, that they had smuggled from their place of employment, to the first appellant. That meeting took place in the B buyer's room of Tony's Auto Spares. In it, the diamonds changed hands for R1000.
[9] Two days later, on 26 January 2003, as was their wont, the three brothers visited the first appellant to view a rugby match on MNet. On C that occasion, according to both Tim and Aubrey, all three of them were schooled by the first appellant in the purchase of unpolished diamonds. In the words of Aubrey:
'Dit was die Sondagnamiddag gewees. Ons het weer gegaan na die kantoor wat die winkelgedeelte van die huis skei en ons het weer D stelling ingeneem by sy lessenaar. Wat daar gebeur het, mnr Dos Santos het aan ons 'n demonstrasie gedoen hoe om 'n loop te hanteer. Hoe om - hoe jy die loop in jou regterkantste hand vashou, 'n ongeslypte diamant aan jou linkerkantste hand en hoe jy die diamant dan bestudeer. Mnr Dos Santos het die demonstrasie gedoen en daarna het ons drie broers dit ook daarna gedoen. E
En hoe was dit aan u verduidelik om die loop te gebruik? - Kan u weer die vraag stel?
U sê u was gewys om die loop te gebruik? - Dis korrek, ja.
Kan u vir ons verduidelik hoe dit aan u getoon is of hoe gebruik 'n mens F 'n loop? - Die loop hou jy aan jou regterkantste hand vas. Dan sit jy jou lang vinger sit jy deur die opening. Die vergrootglas van die loop hou jy in jou wysvinger en jou duim vas. Dan bring jy hom naby aan jou oog. In jou linkerkantste hand, jou wysvinger en jou duim het jy jou diamant. Dan bring jy jou diamant nader na die loop toe om 'n beter view te kan kry van hom, dan rol jy die diamant om te kyk vir enige krake, spots, die kleur van die G diamant.
U Edele, ek sal nie nou daardie beeld toon nie, maar ek sal dit m|f.re toon...
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2011 index
...350S v Dodo 2001 (3) SA 382 (CC) ............................................................ 134, 414S v Dos Santos 2010 (2) SACR 382 (SCA) ................................................. 57-59S v Dumba 2011 (2) SACR 5 (NCK)............................................................. 41......
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2018 index
...104S v Dombeni 1991 (2) SACR 241 (A) .................................................. 422S v Dos Santos 2010 (2) SACR 382 (SCA) ........................................... 87S v Dube 2009 (2) SACR 99 (SCA) ...................................................... 257S v Felthun 1999 (1) SACR......
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2017 index
...104S v Dombeni 1991 (2) SACR 241 (A) .................................................. 422S v Dos Santos 2010 (2) SACR 382 (SCA) ........................................... 87S v Dube 2009 (2) SACR 99 (SCA) ...................................................... 257S v Felthun 1999 (1) SACR......
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2010 index
...280-281, 291S v Dos Santos 2006 JDR 0604 (C); [2006] JOL 18028 (C) ........................... 178S v Dos Santos and Another 2010 (2) SACR 382 (SCA) ....................... 417-418S v Du Toit 2004 (1) SACR 66 (T) ................................................................ 409S v Dube 2......
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...Erleigh (7) 1951 (1) SA 791 (A): considered B R v Scoulides 1956 (2) SA 388 (A): dictum at 394G applied S v Dos Santos and Another 2010 (2) SACR 382 (SCA ): S v Harper and Another 1981 (2) SA 638 (D): applied S v Kotze 1965 (1) SA 118 (A): considered S v Mintoor 1996 (1) SACR 514 (C): criti......
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2011 index
...350S v Dodo 2001 (3) SA 382 (CC) ............................................................ 134, 414S v Dos Santos 2010 (2) SACR 382 (SCA) ................................................. 57-59S v Dumba 2011 (2) SACR 5 (NCK)............................................................. 41......
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2018 index
...104S v Dombeni 1991 (2) SACR 241 (A) .................................................. 422S v Dos Santos 2010 (2) SACR 382 (SCA) ........................................... 87S v Dube 2009 (2) SACR 99 (SCA) ...................................................... 257S v Felthun 1999 (1) SACR......
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2017 index
...104S v Dombeni 1991 (2) SACR 241 (A) .................................................. 422S v Dos Santos 2010 (2) SACR 382 (SCA) ........................................... 87S v Dube 2009 (2) SACR 99 (SCA) ...................................................... 257S v Felthun 1999 (1) SACR......
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2010 index
...280-281, 291S v Dos Santos 2006 JDR 0604 (C); [2006] JOL 18028 (C) ........................... 178S v Dos Santos and Another 2010 (2) SACR 382 (SCA) ....................... 417-418S v Du Toit 2004 (1) SACR 66 (T) ................................................................ 409S v Dube 2......