S v Petkar

• Jurisdiction: South Africa
• Judge: Grosskopf JA, Smalberger JA and MT Steyn JA
• Judgment Date: 01 June 1988
• Citation: 1988 (3) SA 571 (A)
• Hearing Date: 24 May 1988
• Court: Appellate Division

Smalberger JA:

This is an appeal against sentence. The appellant, a 37-year-old Indian male, who pleaded guilty to the charge against him, J was convicted in the regional court, sitting at Benoni, of purchasing

Smalberger JA

A unwrought gold in contravention of s 143(1) of the Mining Rights Act 20 of 1967 (the Act). The gold in question weighed 1 387,9 grams, and its value was R27 456,37. The appellant admitted a previous conviction for a similar offence, as well as one for possession of unwrought gold (a contravention of s 143(3) of the Act). He was sentenced to four years' imprisonment. In addition the R13 000 paid by the appellant for the gold B was declared forfeited to the State. The appellant appealed against his sentence to the Transvaal Provincial Division. His appeal was dismissed. The present appeal is with leave of this Court.

In the course of the proceedings in terms of s 112(1)(b) of the Criminal Procedure Act 51 of 1977, which followed on his plea of guilty, C the appellant gave an account of the events leading to the commission of the offence. It was to the following effect. Over a period of time he had become well acquainted - even friendly - with a certain Croukamp. The latter was apparently employed by the East Rand Administration Board as a law enforcement officer of sorts. They used to reciprocate favours. The appellant reposed trust in Croukamp, whom he regarded as 'a man of the law'. One morning Croukamp approached the appellant and asked him to D cash a post-dated cheque for R500. The appellant told him that he did not have the money to do so. Croukamp then showed the appellant some dagga, and asked him if he knew anyone who dealt in dagga. The appellant stated that he did not. He was then asked by Croukamp if he was interested in purchasing gold. The appellant questioned what Croukamp was up to, but did not firmly reject his enquiry. He appears, however, E to have been reluctant to become involved in any illicit gold dealing. Croukamp told him '(E)k is in baie probleme en so ek is seker jy sal my kan uithelp'. The matter was left there. The following day, at lunch time, Croukamp came to the appellant's house. It is implicit in the appellant's narrative of the events that he did so with a view to persuading the appellant to purchase gold. The appellant remained reluctant. The fact that Croukamp was accompanied by another person F appears to have heightened his anxiety about becoming involved in any illegal transaction. Croukamp reassured him, saying 'Look, trust me, I will not get you into problems'. Croukamp told the appellant to meet him at Modderbee later that afternoon. The appellant made various excuses to avoid such a meeting. Croukamp left saying he would telephone the appellant later. He did so on three separate occasions. On the first and G second occasions the appellant offered reasons - or excuses - for not meeting him, indicative of his reluctance to do so. On the third occasion Croukamp said he was coming to the appellant, which he then did. When he arrived the appellant said to him:

H 'Chris, please tell me, what are you trying to do?'

To this Croukamp replied:

'Look, I promise you, genuine, you can take my word for granted, you are in problems, I am in problems, we will be able to handle this whole I thing together.'

The appellant, who had R3 000 available, then arranged to borrow a further R10 000 from his brother. He expressed misgivings about the whole matter to Croukamp, but was reassured by Croukamp that he could be J trusted. The appellant was then shown the gold, after which he handed

Smalberger JA

A over the money in exchange for the gold. At that stage the police entered and arrested the appellant, and he realised that he had been the victim of a trap. In concluding his account of what had happened the appellant stated:

'I knew at the back of my mind, or in front of my mind, that (it) was B absolutely illegal and wrong. But the man...