S v Lachman

• Jurisdiction: South Africa
• Citation: 2010 (2) SACR 52 (SCA)

S v Lachman
2010 (2) SACR 52 (SCA)

2010 (2) SACR p52

Citation	2010 (2) SACR 52 (SCA)
Case No	432/09
Court	Supreme Court of Appeal
Judge	Mthiyane JA, Van Heerden JA and Griesel AJA
Heard	February 19, 2010
Judgment	March 15, 2010
Counsel	BP Geach SC for the appellant.; N Henning (DPP, Grahamstwon and Bloemfontein) for the State.

Flynote : Sleutelwoorde

Evidence — Admissibility — Use of traps and undercover operations — Whether police conduct amounting to trap — Proposal for criminal conduct emanating I from appellant, and no one else — Police merely creating opportunity for appellant to consummate corrupt transaction — Police conduct not amounting to trap — However, even if conduct amounting to trap, not going beyond providing opportunity for appellant to commit offence — Such evidence ipso facto admissible in terms of s 252A(1) of Criminal Procedure Act 51 of 1977 — Evidence surrounding police operation and what it J had produced correctly admitted.

2010 (2) SACR p53

Search and seizure — Seizure without search warrant in terms of s 22 of A Criminal Procedure Act 51 of 1977 — Whether suspect's consent reliable — Obvious that anything incriminating discovered could be used in evidence — If suspect objecting to search, police merely securing scene until warrant obtained; or invoking s 22(b) and proceeding with search on grounds of reasonable belief that warrant would be granted, and that delay occasioned by application defeating object of search — Either way, retrieval B of incriminating evidence inevitable result.

Headnote : Kopnota

The appellant was convicted of corruption, in that he had contravened s 1(1)(b) of the Corruption Act 94 of 1992, and was sentenced to five years' imprisonment, of which two were suspended. The charge arose from his attempt, while an employee of the South African Revenue Service, to solicit C a bribe from a taxpayer, M, in return for making the latter's tax problems 'go away'. The appellant's main ground of appeal was that the police operation which led to his arrest had been a trap, and that the evidence relating thereto was inadmissible, as there had not been proper compliance with s 252A of the Criminal Procedure Act 51 of 1977 (the Act). He also contended that a cellphone, which had been used to send SMSs to M, had been unlawfully seized because the search which revealed it had been D conducted without a warrant and without satisfying the provisions of s 22 of the Act. He appealed unsuccessfully to the High Court before approaching the Supreme Court of Appeal.

Held, that it was quite clear that the proposal for criminal conduct had emanated from the appellant, and no one else. His overtures to M had persisted for more than three weeks, by means of over 200 SMSs. All that M had done, E with the assistance of the police, was to create the opportunity for the appellant to consummate the corrupt transaction; he had not encouraged or solicited the crime. Under the circumstances, the police conduct had not amounted to a trap. However, even if it had, it had not gone beyond providing an opportunity for the appellant to commit the offence, in which event such evidence was ipso facto admissible in terms of s 252A(1) of the F Act. Accordingly, the evidence surrounding the police operation and what it had produced had correctly been admitted. (Paragraphs [31]–[33] at 61c–62b.)

Held, further, that the appellant had consented to the search of both his person and his desk. The court a quo had correctly rejected the argument that the G consent was not reliable because, firstly, the appellant had not been advised that he could object to the search; and secondly, that any article seized could be used in evidence against him. It was obvious that anything incriminating that was found could be used against him. Furthermore, if he or his representative had objected to the search, the police would merely have secured the scene of the search until they had obtained a warrant; or H they could have invoked s 22(b) of the Act and proceeded immediately with the search on the basis that they had reasonable grounds to believe that a warrant would be granted, and that the delay that would be occasioned by such an application would defeat the object of the search. Either way, the retrieval of the cellphone would have been the inevitable result. (Paragraphs [35]–[37] at 62f–63g.)

Held, further, that the appellant had been convicted on circumstantial evidence; I such evidence should never be approached in a piecemeal fashion, but evaluated in its entirety. It was beyond doubt that the SMSs had all emanated from the same cellphone number, and the inference was irresistible that this number belonged to the brown cellphone discovered during the search of the appellant's desk. As to the question of who owned the cellphone, it had been found on the appellant's desk; two colleagues J

2010 (2) SACR p54

A testified to having seen him using a brown cellphone on different occasions, including on the morning of his arrest; and it had not been suggested that they had 'planted' the cellphone on his desk or that they were conspiring to implicate him falsely. This evidence became even more compelling when weighed against the improbability of the appellant's total denial of any knowledge of the cellphone. The link between him and the cellphone had B been clearly established, with the corollary that he had been the person who had sent the incriminating SMSs to M. Accordingly, the State had proved the appellant's guilt beyond reasonable doubt. (Paragraphs [40]–[44] at 64d–65d.)

Appeal dismissed.

Annotations:

Cases cited

Reported cases

S v Dube 2000 (1) SACR 53 (N) ([2000] 1 All SA 41): referred to C

S v Kotzè 2010 (1) SACR 100 (SCA) ([2010] 1 All SA 220): referred to

S v Malinga and Others 1963 (1) SA 692 (A): referred to

S v Matsabu 2009 (1) SACR 513 (SCA) ([2009] 2 All SA 150): referred to

S v Mcasa and Another 2005 (1) SACR 388 (SCA): referred to D

S v Mthethwa 2004 (1) SACR 449 (E): referred to

S v Mtsweni 1985 (1) SA 590 (A): referred to

S v Orrie and Another 2005 (1) SACR 63 (C) ([2005] 2 All SA 212): referred to

S v Rama 1966 (2) SA 395 (A): referred to

S v Reddy and Others 1996 (2) SACR 1 (A): referred to E

S v Sebejan and Others 1997 (1) SACR 626 (W) (1997 (8) BCLR 1086): referred to

S v Steynberg 1983 (3) SA 140 (A): referred to.

Legislation cited

Statutes

F The Criminal Procedure Act 51 of 1977, ss 22(b) and 252A(1): see Juta's Statutes of South Africa 2008/9 vol 1 at 2-341 and 2-395.

Case Information

Appeal against conviction handed down by a regional court and confirmed in the Eastern Cape High Court, Grahamstown (Kroon J and Pickering J). The facts appear from the judgment of Griesel AJA, in G which Mthiyane JA and Van Heerden JA concurred.

BP Geach SC for the appellant.

N Henning (DPP, Grahamstown and Bloemfontein) for the State.

Cur adv vult.

Postea (March 15). H

Judgment

Griesel AJA:

[1] The appellant was convicted in the regional court, sitting in East London, on a charge of corruption in contravention of s 1(1)(b) of the I Corruption Act 94 of 1992. [1] The essence of the charge was that, whilst employed as an auditor in the East London office of the South African Revenue Service (SARS), the appellant corruptly attempted to solicit a

2010 (2) SACR p55

Griesel AJA

bribe from a certain Mr Kwame Mokoena as a reward for assisting the A latter to make his tax problems 'go away', which actions constituted an excess of his powers or a neglect of his duties as such auditor.

[2] After his conviction, the appellant was sentenced to five years' imprisonment of which two years were conditionally suspended. His appeal to the Eastern Cape High Court, Grahamstown, against the B conviction and sentence was unsuccessful, hence this further appeal against his conviction, [2] which comes before us with leave granted by this court.

Factual background C

[3] The evidence of Mokoena was that he was at all material times the owner of a business entity styled Investorex trading as Kwasaka Agencies. He was registered with the East London branch of SARS as a vendor liable to pay Value Added Tax (VAT). His file at SARS was attended to by the appellant in his capacity as auditor, together with another auditor, a certain Ms Sabrina Taylor. D

[4] On 23 September 2003 Mokoena received a telephone call from the appellant who sought certain details relating to Mokoena's tax affairs. Mokoena made an appointment to see the appellant at the SARS offices later that same day to discuss the matter. At the interview, the appellant pointed out to Mokoena that he had not submitted his tax returns and E that SARS had decided to conduct an audit of his business affairs. Mokoena was accordingly requested to submit certain further information to SARS.

[5] Shortly after the interview, on his arrival at home, Mokoena received F an anonymous text message (commonly referred to as an 'SMS', an abbreviation for 'short message service') on his cellphone, emanating from a cellphone with the number 0726786492. The message was to the following effect: 'I can help you with your tax affairs, you have got problems and I can help you with your tax affairs.' Mokoena was instructed by the anonymous author not to call the number from which G the SMS was sent, but to reply only via SMS as it was dangerous to talk over the telephone, with the sender working at SARS.

[6] Later that evening Mokoena received further SMSs from the same cellphone number, one advising him that he would only have to pay SARS the amount of R10 000 in order to get all his books with SARS up H to date, and another one requesting him to pay R60 000 'in order to make [his] problems with the Receiver disappear'. After commenting to

2010 (2) SACR p56

Griesel AJA

A his wife...