S v Dube

• Jurisdiction: South Africa

S v Dube
2000 (1) SACR 53 (N)

2000 (1) SACR p53

Citation	2000 (1) SACR 53 (N)
Court	Natal Provincial Division
Judge	McCall J and Niles-Duner J
Heard	October 5, 1999
Judgment	November 23, 1999
Counsel	A Kissoon Singh for the appellant; W P Muller for the State

Flynote : Sleutelwoorde

Evidence — Admissibility — Interception and Monitoring Prohibition Act 127 of 1992 — Provisions of Act not applicable to participation monitoring.

Evidence — Admissibility — Use of traps and undercover operations — Section 252A of Criminal Procedure Act 51 of 1977 — Applicability of — Section 252A not entirely procedural and not having retrospective effect. C

Evidence — Admissibility — Use of traps and undercover operations — Whether use of evidence so obtained rendered trial unfair — No question of inducement by police to commit a crime but rather an innocent victim attempting to protect its property by finding out who was responsible for large scale thefts at its industrial plant after efforts of its security personnel had proved unsuccessful — Evidence admissible. D

Headnote : Kopnota

The appellant was convicted in a regional court of two counts of theft and was sentenced to a total of nine years' imprisonment. The convictions arose from a trap which had been set up on behalf of the complainant, a major motor car manufacturer, which had suffered extensive losses due to theft. The E complainant was approached by a loss control consultant ('S') who offered his assistance in reducing the incidence of theft and an agreement was reached in this regard.

S was given an introduction to the appellant who was working at the time as an insurance broker and indicated to him that he was interested in acquiring new vehicles and parts. The appellant said that he had F a contact who worked for the complainant who was involved in that kind of thing. A meeting was subsequently arranged between S, the appellant and the person who was accused No 1 at the trial and who was also convicted of the same offences. Photographs were taken of this meeting by means of a hidden camera and S tape-recorded the conversation he had with accused No 1 and the appellant. Arrangements were made to deliver two new vehicles to S for an amount of R30 000 per vehicle. Two G vehicles were subsequently delivered to S who paid cash for the cars. On the first of these occasions the conversation was again recorded and photographs were taken of S and the appellant.

At the trial the photographs and the transcrips of the conversations were handed in as exhibits and their contents explained by S who was the principal State witness. The magistrate held that the photographs H and transcripts were admissible as evidence and that their admission as such was not affected by the coming into operation of s 252A of the Criminal Procedure Act 51 of 1977, after the commission of the offences as the provision was not retrospective. The magistrate held further that the provisions of the Interception and Monitoring Act 27 of 1992 did not render the tape recordings inadmissible. On appeal, I

Held, as to the applicability of s 252A of the Criminal Procedure Act, that the operation was a trap or undercover operation as contemplated by the provision.

Held, further, that although s 252A did contain certain elements which regulated criminal proceedings involving the use of traps, the section was not entirely procedural. There were in any event indications (such as the obtaining of J

2000 (1) SACR p54

A written approval for the setting of a trap) that the Legislature did not envisage retrospective operation of the section.

Held, accordingly, that s 252A did not operate with retrospective effect.

Held, further, that in any event, s 252A did not apply to the trap in question as S was not a law enforcement officer referred to in ss (1).

B Held, further, as to the exclusion of the evidence under the common law or the Constitution, that prior to s 252A our Courts had adopted the view that there was no substantive defence of entrapment in our law and the Legislature had accepted an exclusionary rule, the Court would proceed on the basis that there was no substantive defence of entrapment in our law but that evidence of entrapment may, in certain circumstances, be excluded: in the instant case the question to be decided was whether the admission of C the evidence of the entrapment rendered the trial of the appellant unfair or was otherwise detrimental to the administration of justice.

Held, further, that one of the factors to be considered was the intent of the victim, viz the complainant. The instant case was not one of the police setting out to induce innocent victims to commit a crime but was D rather one in which an innocent victim sought to protect its property by finding out who was responsible for large-scale thefts at its plant after the efforts of its own security personnel had proven unsuccessful. There had been nothing abhorrent about the methods used by S.

Held, accordingly, that the admission of the evidence did not render the trial unfair.

E Held, further, as to the effect of the Interception and Monitoring Act, that the provisions of the Act did not apply as the monitoring carried out was participation monitoring.

Held, further, that the information recorded by S did not have the attribute of confidentiality.

F Held, as to the contention that the recording of the meetings and the taking of the photographs constituted an invasion of the appellant's right to privacy, that neither the appellant nor his co-accused had imposed any restriction upon S' dealing with the information and had no legitimate expectation that the information would not be disclosed to others: there had accordingly been no breach of the appellant's right of privacy.

Case Information

G Appeal dismissed save for a reduction in the sentence imposed on the second count.

Appeal from convictions and sentences in a regional magistrate's court.

A Kissoon Singh for the appellant.

W P Muller for the State.

Cur adv vult.

Postea (November 23).

Judgment

McCall J:

The appellant was charged with two counts of theft of motor vehicles from Toyota South Africa I Manufacturing in Durban during the period 15 October 1995 to 23 October 1995. The trial commenced in the regional court, Durban, on 20 July 1998. There were originally four accused, the appellant being accused No 4. He was represented at the trial by an attorney. At the commencement of the trial the charges against accused No 3 were withdrawn. The remaining three accused, including the appellant, pleaded not guilty to both counts and reserved their respective defences. After a lengthy hearing, the J learned magistrate found

2000 (1) SACR p55

McCall J

accused Nos 1, 2 and 4 guilty on both counts of theft as charged. He sentenced all of them to four years' A imprisonment on count 1 and five years' imprisonment on count 2. The appellant appeals against his convictions and sentences on both counts. The evidence of Mr R S Broadley, the Managing Director of Toyota South Africa Manufacturing, revealed that up to and during the year 1995 Toyota had been B experiencing a tremendous amount of theft, mainly of parts off the assembly line, amounting to in excess of R1 million a year. A Mr David Styles approached the Company together with a Mr Tim Tyson and said they could help Toyota. Toyota told them that they would only take them on if they could prove their bona fides by coming up with some concrete facts. Through their assistance, Toyota, which was losing a lot of C Hi - Ace gearboxes, was able to find out who was stealing them. As a result Toyota hired them to continue to find out how they could prevent thefts from the factory.

Mr David Styles was the main State witness. He described himself as a loss control consultant who worked mainly for corporate organisations, looking at losses through both theft and fraud. At the relevant D time he was working for Mr Tim Tyson for a salary. Mr Tim Tyson carried on a business called Dynamic Solutions.

Mr Styles recounted his background which included working for a number of years in the South African Police Services. He described how he assembled a team of people and set about the investigations at E Toyota, working undercover.

In the case leading to the prosecution of the appellant, one of their operators, who was positioned at the main gate of the Toyota factory, informed Mr Styles that she had met the appellant who was interested in supplying stolen goods. She passed his business card on to Mr Styles. Mr Styles set up a meeting with the F appellant who was, at the time, working for Momentum Life as an insurance broker. He met the appellant at the appellant's office and informed him that he was involved in a vehicle and parts syndicate, and that he had heard that the appellant had people who he knew could supply stolen goods. The appellant informed Mr Styles that he would have no problem in supplying him with vehicles stolen off the street, but Mr Styles G informed him that he was interested in obtaining new vehicles and parts. The appellant then informed Mr Styles that he did have a contact at Toyota who was involved in that kind of thing. The appellant agreed to set up a meeting between Mr Styles and accused No 1, which took place at the Hyperama, Prospecton, at 15:30 on 17 October 1995. The appellant arrived with two other males who were, at the time, unknown to H Mr Styles. Mr Styles was told that accused No 1 was at a shop stewards' meeting at Toyota and it was arranged that they would come back at 16:30 with accused No 1. The appellant arrived back at 16:30 with accused No 1 and the other two males. I

Mr Styles had arranged for a photographer to be positioned across the way from the meeting point and he took photographs of the meeting, which...