S v Kotzè

• Jurisdiction: South Africa
• Judge: Harms DP, Heher JA, Snyders JA, Griesel AJA and Wallis AJA
• Judgment Date: 15 September 2009
• Citation: 2010 (1) SACR 100 (SCA)
• Docket Number: 429/08
• Hearing Date: 20 August 2009
• Counsel: FJ Murray for the appellant. LJ Badenhorst for the respondent.
• Court: Supreme Court of Appeal

Wallis AJA:

C [1] The appellant, Nick Kotzè, is a successful businessman and a prominent citizen of Port Nolloth. On four occasions, between 14 July 2001 and 12 February 2002, he purchased unpolished diamonds from one Frik Terblanche. In all he bought 21 diamonds for a total amount of R63 000. Unbeknown to him (although, as will become apparent, he D was alert to the possibility) Terblanche was a senior and experienced police officer attached to the diamond and gold squad, who was operating as an undercover agent in a covert police operation known as Project Solitaire aimed at syndicates dealing unlawfully in diamonds in the Namaqualand region.

E [2] On the basis of Terblanche's evidence Kotzè was convicted by the regional magistrates' court, Bellville, on four counts of purchasing unpolished diamonds in contravention of s 20 of the Diamonds Act 56 of 1986. He was sentenced on each count to pay a fine of R8000, with an alternative of 18 months' imprisonment. In addition, a further F sentence of 18 months' imprisonment was imposed, but suspended on certain conditions. An appeal against his conviction to the Cape High Court was dismissed. With the leave of that court he comes on further appeal to this court. The appeal is confined to one against conviction only. The only ground advanced in support of the appeal is that, in terms G of s 252A(3) of the Criminal Procedure Act 51 of 1977, the magistrate should have declined to admit the evidence of Terblanche. In that event there would have been no admissible evidence of the transactions giving rise to the convictions and they would fall to be set aside.

[3] The use of traps and undercover agents by the police, both for the H prevention and the detection of crime, is long established, both here and overseas. However, because it can be seen as generating the crimes under investigation, it is regarded as controversial as a matter of principle and, even in circumstances where resort to its use may be thought to be acceptable, there is room for concern because the methods adopted by I the trap or agent involve deception and can readily be abused. The underlying fear is that people who would not otherwise be guilty of criminal behaviour may be induced by the conduct of the trap or undercover agent to commit crimes and their reluctance to commit crime may be overborne by the conduct and inducements offered by the trap or undercover agent. Our courts have, in a number of cases, J expressed concern about the conduct of traps and it was the subject of an

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investigation and report by the South African Law Commission. [1] That A in turn resulted in the statutory regulation of the admissibility of evidence derived from the activities of traps and undercover agents in the form of s 252A of the Criminal Procedure Act, although the section, as ultimately enacted, is in material respects different from that proposed by the Law Commission. This appeal raises the interpretation and application of that section. B

[4] The background to the case is that, in about 2000, the police decided to undertake Operation Solitaire to address the widespread problem of syndicates engaged in unlawful dealing in diamonds in the Namaqualand region. Terblanche, who at that stage held the rank of inspector, was C selected as the undercover agent. He and his wife would move to Port Nolloth on the pretext that he had retired from the police force and was now a pensioner. There he would make himself known to local people and seek to become accepted as part of the local community, a process that it was anticipated would take some nine months. Thereafter he would engage with various suspects (and possibly others he came to D suspect as a result of his activities) in ways that it was thought would lead to either the purchase or sale of unpolished diamonds in contravention of the Diamonds Act. In doing so he would garner the evidence that would then be used against those persons in subsequent criminal trials. The operation was expected to last some two years. E

[5] Kotzè was one such suspect whose name was given to Terblanche as a target to be approached. He is a prominent person in the Port Nolloth community, having served for 27 years as a town councillor, 11 of them as mayor. He operates a motor retail business in the town and also runs a small shop and café from the same premises. Apart from this business F he owns three farms, some 20 km from Port Nolloth, and another farm across the border in Namibia that is leased to a company in the Anglo American group for a rental said at the trial to be in excess of R1 million per year. He owns and leases residential and business properties in Port Nolloth and elsewhere. He has, over the years, been involved in the diamond industry, in prospecting for, mining, cutting and polishing G diamonds, although at the time of these events he had ceased these activities, apart from having a stake in two diamond mining operations for which a licence was held in his son's name and a share in a diamond cutting business. Overall it is clear that he is a person of financial substance and some wealth. He is also involved in the local congregation H of the Nederduitse Gereformeerde Kerk and testified that it was customary for him and his wife to entertain members of the congregation at their home after the services each Sunday with tea and coffee and general hospitality and discussion about church affairs and religious matters. This hospitality loomed large in the evidence in this case. I

[6] Terblanche arrived in Port Nolloth on 1 August 2000 and he met Kotzè for the first time on that day in the course of looking for suitable

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A accommodation. Apparently he and his wife had first approached an estate agent in the town but she had nothing available that seemed suitable and, according to Terblanche, suggested that he should approach Kotzè. Although some point was made of this meeting in cross-examination, Kotzè himself did not regard it as odd or unusual, B which is not surprising because he rented out houses through an agency operated by his daughter. Kotzè suggested a house owned by his mother but this was unsuitable and the following day the Terblanches found a house at McDougall's Bay. In the course of effecting introductions Terblanche told Kotzè that he was a retired policeman, to which he says Kotzè responded by saying: 'Ek is 'n smokkelaar.' [2] Kotzè said he had no C recollection of making such a comment but accepts that he might have done so in jest. However, Terblanche seems to have taken it seriously as it was conveyed by him to his superiors in the course of the operation.

[7] After this initial incident Terblanche and his wife moved into the house they had found on 7 September 2000 and settled into life in and D around Port Nolloth on the basis of his cover story that he was a pensioner. It appears that the community accepted this story at face value. The evidence does not deal in detail with any matters other than the development of his relationship with Kotzè, but he must have been engaged in other activities as at the end of the operation nearly two years E later 34 people were arrested for offences relating to unlawful dealing in diamonds and, apart from the present one, he gave evidence in a number of trials arising out of these arrests.

[8] Terblanche established a close and friendly relationship with Kotzè. He would regularly visit him at his business, both to buy a newspaper F and other small items, and to chat socially and came to know him and his family, including Kotzè's elderly mother with whom he would, on occasion, sit and have coffee. He and his wife attended the NG church (NGK) although their affiliation had been with the Afrikaanse Protestante Church. They were from time to time invited with other members of the congregation to join Kotzè and his wife for tea at their home after G service. Terblanche ascertained the birthdays of Kotzè's children and would telephone and wish Kotzè well on these occasions. At a later stage of the relationship they discussed personal matters such as the death of Terblanche's sister in January 2001, and later still the death of one of Kotzè's children and certain fears that Terblanche had about his health. H On one occasion in September 2001 Terblanche and his wife, together with Mrs Kotzè, spent the day looking at the flowers for which the area is renowned, although business prevented Kotzè from joining them. However, apart from the visits after church and occasional meals at the Kotzè home, they did not visit one another's homes. The only occasions I on which Kotzè went to the Terblanche home were pursuant to two of the transactions giving rise to the charges against him.

[9] The first transaction occurred on 14 July 2001 when Terblanche sold four unpolished diamonds to Kotzè for a price of R10 000. He describes

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the circumstances in which that came about as follows. On 4 April 2001, A after a visit to Johannesburg, Kotzè asked where he had been. He told him he had been visiting his children and, on the way back, had stayed with a diamond-cutter friend whom he wanted to repair his wife's ring. Kotzè's response was to say that if Terblanche had that type of problem he could have helped and then, according to Terblanche, added that he B would also have a diamond cut and polished for him. [3] Kotzè also said that if Terblanche had any other unpolished diamonds he should bring those as well. There is some confusion in Terblanche's evidence whether this latter statement was made on 4 April 2001 or during a subsequent conversation on 10 May 2001, when he approached Kotzè on the C instructions of his handlers to ascertain whether the earlier offer to have a diamond polished still stood and, if so, what it would cost. Be that as it may, Terblanche's...