S v Kotzè

• Jurisdiction: South Africa
• Citation: 2010 (1) SACR 100 (SCA)

S v Kotzè
2010 (1) SACR 100 (SCA)

2010 (1) SACR p100

Citation	2010 (1) SACR 100 (SCA)
Case No	429/08
Court	Supreme Court of Appeal
Judge	Harms DP, Heher JA, Snyders JA, Griesel AJA and Wallis AJA
Heard	August 20, 2009
Judgment	September 15, 2009
Counsel	FJ Murray for the appellant.; LJ Badenhorst for the respondent.

Flynote : Sleutelwoorde

Evidence — Admissibility — Use of trap and undercover operations — Section 252A of Criminal Procedure Act 51 of 1977 — Semble: Important for presiding officers faced with challenges to admissibility of evidence of trap to be aware of and apply s 252A(6), in terms of which accused must 'furnish the grounds on which the admissibility of the evidence is C challenged' — Matter may then, in terms of ss (7), be adjudicated as separate issue in dispute, ie during trial-within-a-trial.

Evidence — Admissibility — Use of trap and undercover operations — Section 252A of Criminal Procedure Act 51 of 1977 — Whether trap going D beyond providing opportunity for commission of offence — Interpretation and application of s 252A discussed.

Headnote : Kopnota

The appellant was convicted by the Bellville regional magistrate's court on four counts of purchasing unpolished diamonds in contravention of s 20 of the E Diamonds Act 46 of 1986. On four occasions he had purchased unpolished diamonds from T, a senior and experienced officer attached to the diamond and gold squad, who was operating as an undercover agent in a covert police operation. An appeal against conviction was dismissed in the Cape High Court. Leave was obtained to appeal to the Supreme Court of Appeal against conviction only. The only ground of appeal advanced was that, in F terms of s 252A(3) of the Criminal Procedure Act 51 of 1977 (the Act), the magistrate should have declined to admit the evidence of T. Without the evidence of T there would be no admissible evidence of the transactions giving rise to the convictions, and they would fall to be set aside. While most of the evidence of T was not disputed, the appellant did dispute the circumstances in which it had come about. The appellant claimed that T G had become an intimate friend and that they had shared confidences. The appellant went on to claim that, on each occasion that he bought unpolished diamonds from T, the initiative had come from T. The appellant furthermore stated that T incessantly brought up the subject of diamonds, even though he begged him to desist. The appellant further stated that, each H time a sale was concluded, T had approached him with a tale of financial woe and insisted that the appellant purchase diamonds to assist him. The appellant contended that he had succumbed to T's persistence on each occasion, out of a spirit of Christian charity and a desire to help someone in need.

Semble: The magistrate ruled at the end of a trial-within-a-trial that the evidence I of T was admissible. It was unfortunate that, in deciding to hold a trial-within-a-trial, the magistrate did not require the appellant to furnish the grounds on which he challenged the admissibility of the evidence, as should have been done in terms of the proviso to s 252A(6). It is important for presiding officers faced with challenges to the admissibility of the evidence of a trap to be aware of and apply ss (6), in terms of which J the accused must 'furnish the grounds on which the admissibility of the

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evidence is challenged'. The matter may then, in terms of ss (7), be A adjudicated as a separate issue in dispute, ie during a trial-within-a-trial. (Paragraph [19] at 110g–111c.)

Semble: Whilst s 252A(6) refers to the burden being discharged on a balance of probabilities, it was, in the court's prima facie view, incompatible with the constitutional presumption of innocence and the constitutional protection of the right to silence. Those rights must be seen in the light of the B jurisprudence of the Constitutional Court, in which it has been held that their effect is that the guilt of an accused person must be established beyond reasonable doubt. That a confession was made freely and voluntarily and without having been unduly induced thereto must be proved beyond reasonable doubt. The court saw no practical difference between that case and the case where a conviction was based on the evidence of a trap. Each C deals with the proof of facts necessary to secure the admission of the evidence necessary to prove the guilt of the accused. In the court's prima facie view therefore, and in the absence of argument, in order for the evidence of a trap to be admitted, it is necessary that the trial court be satisfied that the basis for its admissibility has been established beyond a reasonable doubt. (Paragraph [20] at 111c–g.) D

Sections 252A(1) and (2) of the Act

Held, that the starting point for determining the admissibility of T's evidence was s 252A(1) of the Act. In this regard ss (1) excludes the possibility of a defence of entrapment by explicitly stating that the use of a trap or engaging in undercover operations in order to detect, investigate or uncover the commission of an offence is permissible. Absent a constitutional E challenge - and there was no such challenge in the present case - there was no room for an argument that the use of a trap or the undertaking of undercover operations was unlawful in South Africa. (Paragraph [21] at 111h–112d.)

Held, further, that s 252A(1) lays down two approaches to the admissibility of evidence obtained as a result of the use of a trap. Evidence is automatically F admissible if the conduct of the person concerned goes no further than providing an opportunity to commit the offence. If the conduct goes beyond that the court must enquire into the methods by which the evidence was obtained and the impact that its admission would have on the fairness of the trial and the administration of justice, in order to determine whether it should be admitted. (Paragraph [23] at 112g–h.) G

Held, further, that s 252A(1) does not purport to prescribe the manner in which undercover operations or traps are to be conducted by the police. It merely distinguishes, on the basis of the manner in which the trap is conducted, between instances where the evidence thereby obtained is automatically admissible and instances where a further enquiry is called for before the question of admissibility can be determined. (Paragraph [24] at 113c—d.) H

Held, further, that s 252A(1) prescribes a factual enquiry into whether the conduct of the trap goes beyond providing an opportunity to commit an offence. Section 252A(2) describes a number of features that may indicate to a trial court that the undercover operation or trap went beyond providing an opportunity to commit an offence. In this regard it was conceded by the prosecution and held by both the magistrate and court below that T's I conduct and the undercover operation went beyond merely providing the opportunity for the commission of the offence. (Paragraph [25] at 113d–f.)

Held, further, that the starting point is that, in each case where the evidence of a trap is tendered and its admissibility challenged, the trial court first has to determine, as a question of fact, whether the conduct of the trap went beyond providing an opportunity to commit an offence. It does that by J

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A giving the expression its ordinary meaning and makes its decision in the light of the factors set out in ss (2). (Paragraph [26] at 113g.)

Held, further, that if one examined the context of ss (2) it was clear that the legislature was concerned to identify situations that would be relevant to and bear upon the factual enquiry postulated in ss (1). In its judgment the reference to the trap not going beyond affording an opportunity to commit B an offence describes a situation where no issue exists about the propriety of the trap or the admissibility of the evidence derived therefrom. It appended in ss (2) an open list of factors relevant to the factual enquiry. Those factors have to be viewed holistically and weighed cumulatively, as different factors may point towards different answers. Not all of the factors will be relevant in every case. Sight must not be lost of the fact that there is only a single C question to be answered, namely, whether the conduct of the trap went beyond providing an opportunity to commit an offence. If, on considering all relevant factors, the conclusion is that the conduct of the trap went beyond providing an opportunity to commit the offence, the enquiry will then move on to s 252A(3) because, in the legislature's judgment, that conclusion may cast doubt upon the propriety of the trap and the evidence D obtained thereby, so that the situation requires further scrutiny before the evidence is admitted. If the factors in ss (2) are not taken as a check list, but merely as matters that may be relevant to the proper determination of the factual enquiry, taking into account in any particular case those that are relevant on the facts of that case, they ought to pose few problems. What will be required in every case is a careful analysis of the evidence in order to E determine whether the conduct of the trap goes beyond the limit set by the legislature. (Paragraph [27] at 114c–g.)

Held, further, that, in the court's view, the finding that the conduct of T went further than providing an opportunity to commit the offences was incorrect. However, as the prosecution had conceded the point in both courts below, the enquiry had to turn to s 252A(3). (Paragraph [29] at 115f–g.)

F Section 252A(3) of the Act

Held, that s 252A(3)(a) establishes two criteria for determining the admissibility of evidence obtained through the use of a trap or undercover agent. They are, firstly, whether the evidence was obtained in an improper or...