S v Nortjé

• Jurisdiction: South Africa
• Judge: Foxcroft J, Van Reenen J
• Judgment Date: 27 September 1996
• Citation: 1997 (1) SA 90 (C)
• Docket Number: A694/95
• Hearing Date: 31 January 1996
• Counsel: F J Murray for the appellant A D R Stephen for the State
• Court: Cape Provincial Division

Foxcroft J:

Appellant appeared in the regional court at George as the third accused on two charges of contravening the Diamonds Act 56 of 1986 (ss 20 and 18) and a charge of attempted theft. The other two accused had fled the country and returned to America I before the trial. Appellant was convicted on the first charge only, namely the purchase of unpolished diamonds, and sentenced to five years' imprisonment of which half was suspended. She appealed against the conviction and sentence.

Mr Stephen, who appeared for the respondent, conceded that it was clear on the J record that a captain Willem Wessel Steyn of the South

Foxcroft J

A African Police Service had embarked upon a plot to 'entrap the appellant'. This plot took form on 25 April 1994, when Steyn telephoned a police informant, later identified as Colin Christie (although that is apparently not his real name, since it appears from p 156 of the record that immediately upon her arrest in her own home, appellant spoke to him and asked him what was going on. His reaction was, 'Ek het nie nodig om met jou B te praat nie en my naam is nie Colin Christie nie'.)

The history of the appellant's relationship with Colin Christie is set out in her evidence and was not placed in issue. She also told the court that she had known a person by the name of Mike Connell, who had originally come from South Africa but had lived in the C USA for some years.

In November 1993, Connell had mentioned to her that he was looking for tanzanite. According to the evidence of appellant, this is a valuable semi-precious stone originating in Tanzania, and in demand overseas. Appellant said that she had responded by making extensive enquiries and added that there was a possibility that she would D have been able to obtain tanzanite for Connell.

In April 1994, she was staying at the Park Lodge Hotel in Pretoria, having been in Johannesburg for a period of about three weeks for a number of employment interviews. She met Colin Christie in Roodepoort through a friend and became friendly with him. At the time of the telephone call from captain Steyn, the friendship had E developed into a relationship between her and Christie and they were living together in room 301 at the Park Lodge Hotel. According to her evidence, Christie showed interest in a telephone call from Connell in regard to tanzanite and asked her whether Connell would be interested in buying diamonds. She told Christie that Connell knew F the law in South Africa and would not become involved in uncut or illegal diamond transactions. She had also told Christie about one 'Garrett' (the person who was later charged as accused No 1, Gerrit Thomas Williams). Connell had told her that 'Garrett' was a diamond cutter ('slyper'), and when Christie heard this he had told her that G

'(d)it is nie 'n probleem om onwettige diamante aan hulle te verkoop nie - ongeslypte, ekskuus tog'.

(Record, p 134.) Christie had then said that he wanted to speak to Connell and had eventually done so. He told Connell that he could get uncut diamonds for him and that H this would not be a problem since Garrett was a registered diamond cutter.

This was the situation at the time when the telephone call of 25 April 1994 took place.

In his evidence, Steyn said that he telephoned room 301, Park Lodge Hotel that night and spoke to Christie, who introduced him to appellant. According to Steyn, appellant I immediately started talking to him about uncut diamonds. She asked him if he could provide her with uncut diamonds and told him that she was in a financial embarrassment and needed money. Steyn testified that he told her that he was already a member of a syndicate providing uncut diamonds and that he was not interested in J providing her with any. He went on to say that she had

Foxcroft J

A actually pleaded with him to provide diamonds, saying that she had buyers in George and that the transactions should take place at her home in George.

Under cross-examination it emerged that Colin Christie had been known to Steyn for about six months prior to April 1994 and had previously worked for him as an B informer. When asked why he (Steyn) had telephoned the Park Lodge Hotel on 25 April, he said in reply that earlier the same evening his informant had telephoned him and told him that he possessed certain information to the effect that the appellant was involved in illegal dealing in uncut diamonds. According to Steyn, he had also told C Steyn that appellant had requested him (Christie) to obtain uncut diamonds for her.

Steyn was in the habit of receiving weekly telephone calls from Christie and had before the night of 25 April been telephoned by him to be told that he had met appellant and that she was interested in obtaining uncut diamonds. Christie was unemployed at the time.

D It was put to Steyn in cross-examination that the appellant would say that the conversation with Christie was on a social level only and that Steyn had asked Christie about the relationship between him and appellant. Steyn's answer in evidence was almost incoherent:

'Edelagbare, op daardie stadium het nie die beskuldigde nie of het ek, of, aan my gesê nie, of ek het ook nie kennis gedra dat hy 'n verhouding het met beskuldigde E 3 nie. Hy het dit op geen stadium aan my genoem dat hy 'n verhouding het met die beskuldigde 3 voor die hof nie.'

(Record, p 38.) His answer to the following question as to why a complete stranger that had never spoken to him before should start discussing illegal diamond transactions F with him, was equally unconvincing. His answer at p 39 is as follows:

'Edelagbare, al wat ek net kan sê is, Edelagbare, die beriggewer, Colin Christie, hy weet ek sal optree onder die naam van Johan Fourie, Edelagbare. En dat, of hy nou aan haar, aan beskuldigde 3 gemeld het, Edelagbare, vooraf, maar ek het die indruk gekry toe hy my geskakel het, Edelagbare, telefonies, dat sy wel kennis dra dat ek aan haar, of dat ek kan diamante voorsien edelagbare, en soos ek getuig G het Edelagbare, het sy dadelik begin gesels oor ongeslypte diamante, Edelagbare.'

I cannot accept that Steyn, an experienced police officer, would not have ascertained what the relationship between appellant and Christie, his informant, was. If it is true H that Christie had first telephoned him to say that appellant was looking for buyers of uncut diamonds, an experienced police officer would obviously have wanted to know who the appellant was and what Christie's link with appellant was. He knew that Christie had met her some time previously and would obviously have wanted to know how the acquaintanceship had developed. When planning a trap of this kind, it would I be important to know whether the plan would be likely to succeed. If a close personal involvement had developed between one's informant and the victim of the trap, it would obviously have been much easier to ensnare the prey.

I do not believe Steyn's evidence that he made no attempt to ascertain what the relationship between Christie and appellant was. If he suspected a relationship J between the two and relied upon it, and deliberately

Foxcroft J

A refrained from asking any questions, then his conduct is, to my mind, deserving of the same criticism as if he had discovered the true nature of the relationship and proceeded to use Christie to gain appellant's confidence and eventually trap her.

In considering Steyn's evidence, I have applied the cautionary rule applicable to police traps and informers. (See Du Toit et al Commentary on the Criminal Procedure Act at B 24-8.)

The plot thickened, and Steyn himself eventually spoke to Mike Connell, who told Steyn that he had access to R330 000 for the purchase of uncut diamonds. Steyn told Connell that he would have to go back to his suppliers and would telephone appellant on Sunday, 1 May. (He had already told appellant that he would be telephoning her on C 1 May.) Steyn telephoned appellant on 1 May and told her that he would be in George on 4 May. A black friend, who had stolen the diamonds, would be with him, and she was to arrange accommodation for them. He met appellant on 4 May in George and at pp 14-15 of the record, the following appears: D

'Edelagbare, ons het, ek het met beskuldigde 3 ooreengekom dat ek haar 09:00 die volgende dag, 5 Mei, by haar woning sal kry. Edelagbare hierdie ontmoeting was met die doel om die transaksie te bewerkstellig, te bewerkstellig met Oosthuizen en die persoon Mike, edelagbare. Agbare, later die oggend van 5 Mei het beskuldigde 3 aan my gemeld dat die persoon Oosthuizen dronk is en dat hy E nie die betrokke transaksie kan beklink nie.

Aanklaer: Waar het sy dit aan u meegedeel, Kaptein? - Dit was in die woning, edelagbare, van beskuldigde 3 se, se in haar woning. Edelagbare, 3 het desperaat vir my voorgekom edelagbare, waarop sy die telefoon geneem het en, en geskakel het, edelagbare. Ek het nie gesien watter nommer sy geskakel het nie. Edelagbare, beskuldigde 3 het in Engels gepraat met 'n ene persoon Mike edelagbare en sy het aan hom gesê, edelagbare, dat die transaksie nie beklink...