S v Mkonto

• Jurisdiction: South Africa
• Citation: 2001 (1) SACR 585 (C)

S v Mkonto
2001 (1) SACR 585 (C)

2001 (1) SACR p585

Citation	2001 (1) SACR 585 (C)
Court	Cape Provincial Division
Judge	Kühn J and Josman J
Heard	November 24, 2000
Judgment	January 31, 2001
Counsel	D B Ntsebeza for the appellant.; S Riley for the State.

Flynote : Sleutelwoorde

Diamond offences — Illicit H diamond buying in contravention of s 20 of Diamonds Act 56 of 1986 — Proof of — Trap used — Requirements of s 252A of Criminal Procedure Act 51 of 1977 — Whether accused had previously been involved in illicit diamond dealing — Previous conviction could not be used to fulfil requirements of para (l) of ss (2) — Where accused a reluctant I participant and no other indication of illicit activity conviction and sentence set aside.

Headnote : Kopnota

The appellant was convicted in a regional court of two counts of contravening s 20 of the Diamonds Act 56 of 1986 and sentenced to R3 000 or six J

2001 (1) SACR p586

months' imprisonment and an additional two years' A imprisonment of which 18 months was suspended for five years in respect of each count. The appellant contended at his trial that the investigations against him were irregular, fundamentally unfair and in violation of his rights to a fair trial and to freedom and security of the person. On appeal it was argued that the appellant's reluctance taken together with the evidence of the State witness cast doubt upon B whether the police had a reasonable suspicion for the appellant's involvement in illicit diamond dealing before setting a trap for him in which he eventually purchased the diamonds, such suspicion being required by s 252A(2)(l) of the Criminal Procedure Act 51 of 1977. The Court held that the only piece of evidence that there was to indicate that the accused was involved in illegal activity was that of a policeman who stated that he had received information relating to C the accused: he declined to say what the information was or who had supplied the information. It was difficult to exclude the possibility that the police suspicion was based on the fact that the accused had a previous conviction for dealing in illicit diamonds: this was not permissible. It appeared that the appellant was not unduly anxious to engage in the illicit activity and it was difficult to avoid the D conclusion that had the trap not approached the appellant on each of the two occasions no transactions would have transpired. In the circumstances the conviction had to be set aside.

Case Information

Appeal from convictions and sentences in a regional court.

D B Ntsebeza for the appellant.

S Riley for the State. E

Cur adv vult.

Postea (31 January 2001).

Judgment

Josman J:

The appellant in this matter F was charged in the regional court in Springbok with two counts of dealing in raw or uncut diamonds in breach of s 20 of Act 56 of 1986. The first incident took place on 1 December 1996 at Hondeklipbaai and the second incident took place on 2 March 1997 at the same place.

The appellant pleaded not guilty to both charges and in his plea G explanation alleged that the investigations relating to the charges against him were irregular, fundamentally unfair and in violation of his constitutional rights to a fair trial and to freedom and security of the person. In amplification Mr Yekiso, who represented the appellant at the trial, indicated that he relied also on s 252A of the H Criminal Procedure Act 51 of 1977 which deals with the admissibility of evidence obtained as a result of a trap. This provision was introduced into the Criminal Procedure Act in 1996 and the guidelines contained therein are modelled to some extent on a judgment of the Canadian Supreme Court in the case of R v Mack reported in [1988] 2 SCR 903 and [1989] 37 CRR 277. I

Canadian and American Law recognise the substantive doctrine of entrapment which provides for a stay of proceedings even if the person is guilty of the offence charged. Our courts have held that the doctrine of entrapment does not form part of our law and have chosen to deal with the matter on the basis of whether the person accused was J given a fair

2001 (1) SACR p587

Josman J

trial. In this respect the rights to a fair trial enshrined in the Constitution are paramount. See A S v Hassen 1997 (1) SACR 247 (T); S v Hayes en 'n Ander 1998 (1) SACR 625 (O); S v Dube 2000 (1) SACR 53 (N). See also the interesting article in SALJ (1997) vol 114 at 108 by Victoria Bronstein under the heading 'Unconstitutionally Obtained Evidence - a Study of Entrapment'. It raises the question, inter alia, as to whether some of the provisions in s 252, based as they are on the Canadian guidelines, would pass the tests B prescribed by our Constitution.

Since the doctrine of entrapment does not apply and an accused is not entitled to a stay of proceedings, the court is required to hear the evidence and then decide whether the accused person was given a fair trial. In this respect several important criteria need to be satisfied. C

Section 252A(1) provides that a trap may be used 'in order to detect, investigate or uncover the commission of the offence' provided that the evidence obtained is only admissible 'if that conduct does not go beyond providing an opportunity to commit an offence'.

There follows a proviso which gives the court a discretion to admit such evidence in certain circumstances even if the conduct of the trap did indeed go beyond providing an opportunity to commit an offence. The D criteria to be applied in exercising this discretion are set out in ss (3).

Subsection (2) embodies some of the guidelines mentioned in R v Mack and in particular ss (2)(l) requires the court to have regard to the following factor when deciding whether the conduct went beyond providing an opportunity to commit the offence: E 'Whether, before the trap was set or the undercover operation was used, there existed any suspicion, entertained upon reasonable grounds, that the accused had committed an offence similar to that to which the charge relates.'

This requirement is dealt with by Bronstein in her article in the SALJ at 119. It is also dealt with in F R v Clever 1967 (4) SA 256 (RA) which has been referred to with approval in the Appellate Division. (See S v Pektar 1988 (3) SA 571 (A) and S v Sellem 1992 (2) SA 795 (A).)

With regard to the requirement contained in s 252A(1) that in order to be admissible the conduct of the trap relied upon must not go beyond providing an opportunity to commit an offence, there are a number of G South African cases in which this principle had previously been applied. See S v Azov 1974 (1) SA 808 (T); S v De Bruyn 1992 (2) SACR 574 (Nm); and S v Hayes (supra). In this respect the passage from the judgment of Quenet JP in R v Clever at 257H which was approved by the Appellant Division is worthy of quotation: 'In the case of persons who have previously been convicted, trapping has the undesirable feature that it puts temptation in the way of those least able to resist it. In H any case, such persons might not have offended again but for the fact that the trap was used.' (See Sellem's case at 806C - D.)

The case of S v Nortje 1996 (2) SACR 308 (C), heard in this Division, also has bearing in...