S v Dube

• Jurisdiction: South Africa
• Citation: 2000 (2) SA 583 (N)

S v Dube
2000 (2) SA 583 (N)

2000 (2) SA p583

Citation	2000 (2) SA 583 (N)
Case No	AR 265/99
Court	Natal Provincial Division
Judge	Mccall J, Niles-Dunér J
Heard	October 5, 1999
Judgment	November 23, 1999
Counsel	A K Kissoon Singh for the appellant.; W P Muller for the respondent.

Flynote : Sleutelwoorde B

Criminal procedure — Evidence — Admissibility of — Evidence obtained in manner violating fundamental right enshrined in Constitution of the Republic of South Africa Act 108 of 1996 — Section 35(5) of Constitution — Whether admission of evidence rendering trial unfair — On assumption that accused's fundamental C rights violated by setting of trap, admission of evidence of trap not rendering accused's trial unfair (a) where interests of victim of offence dictating that trapping only feasible method of preventing offence; (b) where accused participates willingly in commission of offence, despite opportunity to withdraw, and where methods employed by trap not abhorrent — In casu company, after attempts by own security staff to D prevent large scale thefts from premises proving fruitless, engaging security consultant in attempt to detect culprits — Security consultant setting trap and discovering that company's own security staff involved in theft — No other method but trap existing to detect offenders — Trial thus not rendered unlawful by evidence of trap. E

Criminal procedure — Evidence — Admissibility of — Evidence obtained in manner violating fundamental right enshrined in Constitution of the Republic of South Africa Act 108 of 1996 — Section 35(5) of Constitution — Whether admission of evidence rendering trial unfair — Evidence of monitoring, in contravention of s 2(1)(b) of Interception and Monitoring Prohibition Act 127 of 1992, of conversation between accused and trap — On assumption that accused's right to F privacy in terms of s 14 of Constitution infringed, admission of recordings so produced not rendering accused's trial unfair if ample other evidence existing on basis of which conviction of accused justified, and recordings merely corroborating such other evidence. G

Criminal procedure — Evidence — Admissibility of — Traps — Criminal Procedure Act 51 of 1977, s 252A — Applicability of — Section 252A not applicable to traps set up by person who is neither law enforcement officer or official of State, nor agent of such officer or official.

Criminal procedure — Evidence — Admissibility of — Traps — Criminal Procedure Act 51 of 1977, s 252A — Meaning of term 'trap' — Minimum requirement for 'trap' H being to provide opportunity to accused to commit offence.

Criminal procedure — Evidence — Admissibility of — Traps — Criminal Procedure Act 51 of 1977, s 252A — Retrospectivity of — Section 252A not retrospectively applicable to traps set up before section coming into operation. I

Criminal procedure — Evidence — Admissibility of — Interception and Monitoring Prohibition Act 127 of 1992, s 2(1)(b) — Prohibition on monitoring of conversations — Scope of prohibition — Applies in first instance to third party monitoring — Primary significance of prohibition not to cover participation monitoring, ie where party to conversation monitors it — J

2000 (2) SA p584

However, police officer referred to in s 3(2)(a) of Act required to obtain A authorisation (in terms of s 2(2)(c) of Act), even for participation monitoring.

Criminal procedure — Evidence — Admissibility of — Interception and Monitoring Prohibition Act 127 of 1992, s 2(1)(b) — Prohibition on monitoring of conversations — Scope of prohibition — Applies only to monitoring intended to B gather 'confidential information' — 'Confidential information' being information upon which law confers attribute of confidentiality — Conversation during which information regarding proposed participation in theft relayed not having attribute of confidentiality.

Criminal law — Persons, liability of — Entrapment — Defence of entrapment — Entrapment per se not at common law constituting defence, but evidence of entrapment may in certain circumstances be excluded. C

Constitutional law — Human rights — Right to privacy in terms of s 14 of Constitution of the Republic of South Africa Act 108 of 1996 — Infringement of — To argue that photographing and monitoring of meeting between accused and trap, during which accused disclosing intended participation in thefts, constituting D invasion of accused's right to privacy would be to apply 'an extravagant notion of privacy' — Accused's right to privacy not infringed by such photographing and monitoring — Accused having no legitimate expectation that information so imparted would not be disclosed.

Statute — Interpretation of — Presumptions — Presumption against retrospectivity — Retrospective effect of statute dealing with procedure — E Amending statute regulating procedure not always interpreted as having retrospective effect — Retrospectivity inferred only if existing substantive rights and obligations remaining unimpaired and capable of enforcement by invocation of newly prescribed procedure. F

Headnote : Kopnota

Toyota South Africa Manufacturing (Toyota) was experiencing a tremendous amount of theft, mainly of parts off the assembly line, from its plant in Durban. When the efforts of its own security staff to find out who the culprits were had been unsuccessful, Toyota enlisted the services of one S, a 'loss control consultant' who worked for corporate organisations looking at losses G through theft and fraud. S assembled a team of people and set about the investigations at Toyota, working under cover. Purporting to be involved in a vehicle and parts syndicate interested in buying stolen goods, S was put in contact with the appellant as someone who was interested in supplying stolen goods. The appellant informed S that he had a contact person (X) at Toyota who was involved in supplying new vehicles and parts. The appellant set up a meeting H between S and X. S arranged for photographs to be taken of the meeting and also tape recorded the conversation he had had with the appellant and X, in which X agreed to supply him with a stolen vehicle. With the help of the appellant, X and others, S managed to buy two vehicles which had been stolen from the Toyota plant. Toyota did nothing to prevent the removal of the vehicles from the plant I and it also furnished the money that S used to pay for the vehicles. It appeared that members of Toyota's own security staff were involved in the thefts. As a result of S's investigations, the appellant, X, and two others were charged in a regional court with two counts of theft of motor vehicles. S was the main State witness. During his evidence S introduced the photographs taken of his meetings with the appellant and J

2000 (2) SA p585

transcripts of the recordings of their conversations, which were found to be admissible. The court found that, based on S's evidence, A as corroborated by the photographs and the transcripts, the State had established beyond reasonable doubt that the appellant had been involved in the unlawful removal of two motor vehicles from Toyota's plant and that the appellant had at all times known that he was doing something unlawful. The appellant and two of the other accused were convicted on both counts of theft. B

The appellant appealed to a Provincial Division against the convictions and sentences on both counts. It was submitted on his behalf that, if the theft of the two motor vehicles had occurred, they were in consequence of a trap or undercover operation conducted by S and his assistants and that the magistrate ought not to have allowed the evidence of the entrapment (a) having C regard to the provisions of s 252A of the Criminal Procedure Act 51 of 1977 (Act 51 of 1977), alternatively (b) having regard to the common law regarding entrapment; alternatively (c) because to do so would infringe on the constitutional rights of the appellant to a fair trial. Section 252A of Act 51 of 1977 only came into operation on 29 November 1996 and the thefts in question occurred on 20 and 23 October 1995. It was submitted that, D since s 252A was procedural in effect, it operated with retrospective effect and therefore applied to the trap under consideration. In the alternative it was argued that, even if S's evidence were admissible, the magistrate had erred in allowing the evidence relating to the tape recordings and the photographs to be admitted in that (a) the recording was an infringement of the provisions of s 2(1)(b) of the Interception and Monitoring E Prohibition Act 127 of 1992 and of the appellant's right to privacy and consequently invaded his right to a fair trial in terms of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution); (b) if the magistrate had a discretion to admit such evidence, there were no criteria present in the present case which justified such discretion being exercised in favour of the State; (c) the obtaining of the photographic evidence without the knowledge and consent of the appellant also F invaded his right to privacy and his right to a fair trial; and (d) the evidence of S standing alone and without the tape recordings and photographs was insufficient in itself to prove the appellant's guilt beyond a reasonable doubt.

The applicability of s 252A of Act 51 of 1977 G

Held, that, although s 252A of Act 51 of 1977 did not expressly define 'a trap' or 'an undercover operation' and although those terms were not defined elsewhere in the Act, the Legislature clearly had in mind that the minimum requirement for a trap was 'providing an opportunity to commit an offence'. (At 604I/J-605B/C, paraphrased.) H

Held, further, that there was no doubt that Toyota itself, acting through S, had provided an opportunity to commit the thefts in...