S v Matsabu

• Jurisdiction: South Africa
• Judgment Date: 27 November 2008
• Citation: 2009 (1) SACR 513 (SCA)

S v Matsabu
2009 (1) SACR 513 (SCA)

2009 (1) SACR p513

Citation	2009 (1) SACR 513 (SCA)
Case No	186/08
Court	Supreme Court of Appeal
Judge	Heher JA, Combrinck JA and Cachalia JA
Heard	November 27, 2008
Judgment	November 27, 2008
Counsel	PJ Heymans for the appellant.; DW Bontes for the respondent.

Flynote : Sleutelwoorde

Trap — Evidence of — Admissibility — Section 252A of Criminal Procedure Act 51 H of 1977 — No material distinction between accepted categories of cases where separation of admissibility and merits was insisted upon, and s 252A — Trial-within-a-trial usually appropriate to decide admissibility under s 252A — However, s 252A(7) recognising cases where interests of accused not prejudiced by either making of ruling without hearing evidence, or delaying of ruling until conclusion of case — Limited issue raised I by s 252A(2)(a) not, prima facie, bearing on voluntariness of commission of offence — If left over for determination at end of case, most unlikely to result in unfairness to accused.

Trap — Evidence of — Whether trap going 'beyond providing an opportunity to commit an offence' — Provision of attractive opportunity the essence of successful trap — Legislature drawing line, though, at conduct literally or J

2009 (1) SACR p514

A figuratively laying bait for unsuspecting official by encouraging commission of crime — Complainant's behaviour in casu essentially neutral; not tempting, enticing or suggesting any unlawful line of conduct — Fact that no suspicion of appellant having committed similar offences not meaning he had been unfairly treated — Trap not directed at him personally, but at B whomever happened to be operating speed trap at particular time.

Headnote : Kopnota

The appellant, a traffic policeman, was convicted of contravening s 1(1)(b) of the Corruption Act 94 of 1992, in that he had accepted R300 as a bribe from a police officer as an inducement not to issue a traffic summons to her. A sentence of two years' imprisonment in terms of s 276(1)(i) of the Criminal C Procedure Act 51 of 1977 (the Act) was imposed. It was common cause that the appellant had been caught in a trap set in terms of s 252A(1) of the Act. On appeal, two issues were raised. Firstly, it was contended that the fact that the magistrate had refused to hold a trial-within-a-trial concerning the admissibility of the trap evidence had rendered the trial unfair. D Secondly, it was argued that the conduct of the trap had gone beyond the provision of an opportunity to commit the offence of corruption.

Held, that the courts had long accepted that it was both desirable and necessary to try issues of the voluntariness of extracurial statements or conduct of accused persons separately from the merits of the case. There was no E material distinction between the accepted categories of cases where the separation of admissibility and merits was insisted upon, and s 252A of the Act. Accordingly, the holding of a trial-within-a-trial would usually be appropriate to decide admissibility under s 252A. However, s 252A(7) recognised that there might be cases where the interests of the accused F would not be prejudiced by either the making of a ruling without hearing evidence, or delaying a ruling until the conclusion of the case. In the present instance the appellant's legal representative, called upon to furnish the grounds upon which he would challenge the admissibility of the trap evidence, referred only to the narrow factual question covered by s 252A(2)(a). So limited an issue did not, prima facie, bear on the G voluntariness of the appellant's commission of the offence. It was an issue which, if left over for determination at the end of the case, was most unlikely to result in unfairness to the accused. Accordingly, the magistrate's refusal to hold a compartmentalised hearing was not a misdirection. (Paragraphs [8] and [9] at 519b-520e.)

Held, further, that a trap might usefully be employed to set up a situation of H which a corruptly inclined official might take advantage. The provision of an attractive opportunity was the essence of a successful trap, which the legislature had recognised in s 252A. It drew the line, though, at conduct which literally or figuratively laid bait for an unsuspecting official by encouraging the commission of a crime. However, the complainant's I behaviour in casu had been essentially neutral. She had not tempted, enticed or suggested any unlawful line of conduct. And while there was no suspicion that the appellant had committed any similar offences, this did not mean that he had been unfairly treated. The trap had not been directed at him personally, but at whomever had happened to be operating the speed trap at that particular time. (Paragraphs [16] and [17] at 522a-e.)

J Appeal dismissed.

2009 (1) SACR p515

Annotations:

Cases cited

Reported cases

R v Dunga 1934 AD 223: referred to A

S v De Vries 1989 (1) SA 228 (A): referred to

S v Ntzweli 2001 (2) SACR 361 (C) ([2001] 2 All SA 184): referred to

S v Yengeni and Others (3) 1991 (1) SACR 387 (C): referred to. B

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 252A: see Juta's Statutes of South Africa 2007/8 vol 1 at 1-382 and 1-383. C

Case Information

Appeal from a decision of the Orange Free State Provincial Division (HM Musi JP and Van Der Merwe J). The facts appear from the judgment of Heher JA, in which Combrinck JA and Cachalia JA concurred.

PJ Heymans for the appellant. D

DW Bontes for the respondent.

Judgment

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.

2009 (1) SACR p516

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...