S v Matsabu

• Jurisdiction: South Africa
• Judge: Heher JA, Combrinck JA and Cachalia JA
• Judgment Date: 27 November 2008
• Citation: 2009 (1) SACR 513 (SCA)
• Docket Number: 186/08
• Hearing Date: 27 November 2008
• Counsel: PJ Heymans for the appellant. DW Bontes for the respondent.
• Court: Supreme Court of Appeal

Heher JA:

[1] The appellant was employed by the Maqhaka Traffic Department as a law enforcement officer. On 18 December 2003 he was arrested during E an anti-corruption operation conducted by a unit of the Free State Provincial Administration responsible for investigating fraud and corruption. He was charged with a contravention of s 1(1)(b) of the Corruption Act 94 of 1992, [*] the allegation being that on that day at or near the Viljoenskroon road in that district he accepted an amount of F R300 as a bribe from a certain Inspector Wilbers as an inducement not to issue a traffic summons to her.

[2] The appellant pleaded not guilty at his trial in the magistrates' court. His legal representative placed on record, as matters not in dispute, that, G on the day in question, the appellant had been one of a group of officers manning a speed trap; that he stopped a vehicle driven by the complainant because of the excessive speed at which it was travelling; that the complainant asked him not to prosecute her but he refused and the complainant thereupon pushed an amount of R300 into the pocket of his trousers and drove off. H

[3] At the trial the prosecution called the complainant to give evidence as well as three other witnesses who were involved in the setting of the corruption trap and the arrest of the appellant. The appellant testified in his own defence. He was convicted as charged and sentenced to two I years' imprisonment in terms of s 276(1)(i) of the Criminal Procedure Act 51 of 1977.

Heher JA

A [4] An appeal to the full court of the Free State Provincial Division (Van der Merwe J and HM Musi JP) against his conviction was dismissed. That court granted leave to appeal to this court.

[5] It will be unnecessary to discuss the evidence of the appellant or its B merits vis-à-vis that of the complainant. His counsel conceded in argument that the appellant's version of events had rightly been disbelieved by the magistrate. Suffice it to say that the concession was well considered. Counsel therefore approached the appeal on the assumption that the complainant's description of events was substantially accurate C although, as he emphasised, she had admitted that her recollection was not necessarily full or flawless.

[6] It was common cause that the appellant had been ensnared in a trap used to detect, investigate or uncover the commission of an offence D within the ambit of s 252A(1) of the Act. [1]

Heher JA

[7] The thrust of the argument presented to us was that the complainant's A own account demonstrated that her conduct had gone beyond the provision of an opportunity to commit the offence of corruption. This

Heher JA

A had two legal consequences: either the evidence obtained by the State in consequence of entrapping the appellant should have been ruled inadmissible at the trial - at least in the first stage, as s 252A(1) of the Act provides - or the use of and reliance on such evidence resulted in the

Heher JA

appellant not receiving the fair trial which was his constitutional A entitlement.

[8] Some point was made in the heads of argument about the magistrate's refusal to hold a trial-within-a-trial when his legal representative twice objected to the admissibility of the trap evidence and asked that B admissibility be tried as a separate issue. During argument reliance on that ground was all but abandoned. Such uncertainty as remains should be dispersed. Our courts have long accepted that it is both desirable and necessary, to the end of achieving a fair trial, to try issues of the voluntariness of extra-curial statements or conduct of accused persons separate from the merits of the case: R v Dunga 1934 AD 223. When a C ruling is made without hearing the defence evidence, the defence is entitled to withhold its further testimony where that could only be given on terms which may prejudice the trial of the merits: ibid at 227. See also S v De Vries 1989 (1) SA 228 (A) at 232G - 234E; S v Yengeni and Others (3) 1991 (1) SACR 387 (C) at 391b - 392a; S v Ntzweli 2001 (2) SACR 361 (C) D ([2001] 2 All SA 184 at 362i - 365c. In general terms s 252A is also concerned with voluntariness of conduct as the measure of whether an accused's conduct is induced by the circumstances of or methods employed in the operation rather than resulting from his own desire to commit the offence. In principle I do not think that there is any material distinction between the accepted categories of cases where the separation E of admissibility and merits is insisted upon and s 252A. Both enquiries seem to take account of and provide for the same inherent risks, such as discouraging an accused from speaking openly when the trial of the merits may be influenced if he does so and the likelihood that failure to deal with admissibility properly and promptly will leave an accused in F limbo in relation to the vital questions of whether he needs to testify and the substance of the case that he has to answer. So also the prosecutor must know the limits of his case both for the purpose of leading further evidence and for cross-examination of the accused. For all these reasons the holding of a trial-within-a-trial will usually be appropriate to decide admissibility under s 252A. G

[9] But, as counsel appreciated, s 252A(7) provides implied legislative sanction for a trial court to exercise a judicial discretion on whether to try admissibility as a separate issue. There is a recognition that there may be H

Heher JA

A cases where the interest of the accused will not be prejudiced by either the making of a ruling without hearing evidence or, even, delaying a ruling until...