S v Pillay and Others

• Jurisdiction: South Africa
• Judge: Mpati DP, Scott JA and Motata AJA
• Judgment Date: 28 November 2003
• Citation: 2004 (2) SACR 419 (SCA)
• Docket Number: 409/2002
• Counsel: M W Wessels SC for the first appellant. H Kessie Naidu SC for the second, third and fourth appellants. A L J Steynberg (with S Manicall) for the State.
• Court: Supreme Court of Appeal

Mpati DP et Motata AJA:

[1] The four appellants were part of a contingent of 19 accused who stood trial before Galgut DJP and assessors in the Durban I and Coast Local Division of the High Court. They were all charged with robbery with aggravating circumstances (count 1), with accused 1 to 8, 12 and 13 also being charged in the alternative to count 1, with contravening s 18(2)(a) of the Riotous Assemblies Act 17 of 1956 (conspiracy to commit robbery). Accused 13 to 19 were in addition charged with J

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money laundering in contravention of s 28, read with ss 1, 2, 3 and 33 of the Proceeds of Crime Act 76 of 1996 (count 2). A These latter accused were also charged with contravening s 29 (count 3) and s 30 (count 4) of the same Act.

[2] In his address after plea, counsel for the State informed the Court that the State would seek a conviction on the main count B (count 1) only against accused 1 to 8. As to the remaining accused, the State would seek a conviction on the competent verdict of being accessories after the fact to the main count.

[3] The four appellants were accused 9, 10, 14 and 7 respectively. We shall, for convenience, refer to them as in the Court C below. Accused 7 was convicted on count 1 and sentenced to 20 years' imprisonment. Accused 9, 10 and 14 were all convicted of being accessories after the fact to robbery. Accused 9 was sentenced to five years' imprisonment, accused 10 to five years' imprisonment in terms of s 276(1)(i) of Act 51 of 1977 and accused 14 to four years' imprisonment. Accused 14 was acquitted on counts 2, 3 and 4. D

[4] All four accused were refused leave to appeal against their convictions and sentences. Accused 9, 10 and 14 are now before us with leave of this Court. Accused 9 and 10 appeal against their convictions only, while accused 14 appeals against both her conviction and sentence. With regard to accused 7 this Court directed that his E application for leave to appeal against his conviction and sentence, together with his application for condonation for the late filing of his application for leave to appeal, be argued 'before the Court which hears the appeals of accused 9, 10 and 14'. In addition, accused 7 applied for leave to adduce fresh evidence. That application was also to be argued together with his application for leave to appeal. F

[5] The charges against the accused (the four appellants and their co-accused) are a sequel to a robbery that was committed at the premises of the company SBV Services (SBV) in Durban during the early hours of 6 August 1996, when a sum of R31 million was stolen. SBV is an intermediary between the South African Reserve Bank and various G local commercial banks. Its functions entail the receipt of money from the Reserve Bank which it delivers to the various local commercial banks. It also collects from local banks money which is then kept available at its premises for recirculation. If the money becomes redundant or damaged it is returned to the Reserve Bank. A certain H Hanujayam Mayadevan (Mayadevan), who was a sergeant in the South African Police Service and attached to the Chatsworth police station, was one of a band of seven persons who committed the robbery with the assistance of two of SBV's employees, accused 5 and 6, who were on duty on the night in question. Some time after the robbery (it appears in September 1998) Mayadevan was arrested and detained on an unrelated I charge (murder). While in custody and through encouragement from members of his family he confessed his part in the robbery to the investigating officer, Captain Hall. His confession resulted in extensive investigations by the police, which in turn led to the arrest of the 19 accused ultimately charged before the Court below. J

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[6] It goes without saying that Mayadevan was the main witness A for the State, particularly with regard to the robbery. In considering his evidence the trial Court found him to be 'the sort who will lie when it suits him', that he was an accomplice with a possible motive to implicate the accused and that as such his testimony must be approached with the utmost care and circumspection. It held that it 'will accept his relevant evidence if it is suitably corroborated by B other independent and acceptable evidence'.

[7] Against that background we now proceed to consider the appeals of the individual appellants.

[The learned Judges dealt with the appeals of appellants 4 and 1 (accused 7 and 9 respectively in the Court a quo) C and continued.]

Accused 10

[71] At the time of the robbery accused 10 lived with her husband, accused 11 (they divorced in September 1996), and their two children D aged 19 and 21 years respectively, in a house at Sea Cow Lake, Durban, where she was the tenant. It is common cause that two weeks after the robbery, on 22 August 1996, a number of policemen entered her house and, with her co-operation, retrieved from the ceiling six bin bags and a canvas kitbag containing banknotes amounting in total to just over R5 million. It is not in dispute that the money came from E the robbery. It had been brought to her home during the previous evening by one Rajan Naidoo after a family friend, Yegan Naidoo, had made telephonic arrangements with her. Yegan Naidoo, according to Mayadevan, was one of the seven persons who committed the robbery. Accused 10 testified, however, that she did not know that Yegan Naidoo had been involved in the robbery and that she thus had not known that F the money came from the robbery. Her testimony in this regard, and indeed on many other aspects, was rejected by the trial Court as false beyond a reasonable doubt. Hence her conviction as an accessory after the fact to robbery.

[72] The finding that accused 10 knew that the money found in G her house came from the robbery was not challenged on appeal, correctly so in our view. Accused 10 was a poor witness. Mr Naidu, who appeared on her behalf, advanced two main submissions before us. The first was based on an alleged undertaking given by the Deputy Director of Public Prosecutions not to prosecute accused 10 and members of her family in the event of any one of them testifying in the trial of Rajan H and Yegan Naidoo, who were charged with the SBV robbery following their arrest after the finding of the money in her house. The factual background is the following. When the State was about to adduce evidence against accused 10, her legal representative and that of accused 11 applied for the discharge of the two accused on grounds of the alleged undertaking. The State and the defence then placed before I the trial Court a statement of agreed facts relating to the issue and asked the Court to adjudicate thereon, the defence arguing that the State should be held to its undertaking. The statement of agreed facts reads:

'1.

The State seeks to lead evidence pertaining to the alleged recovery of cash J

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from the house of accused Nos 10 and 11 on Thursday, A 22 August 1996. For the purpose of the inside trial pertaining to the admissibility of such evidence, it has been agreed between the State and accused Nos 10 and 11 that the following facts are common cause:

1.1

On the evening of 22 August 1996, the police penetrated the house of Mrs and Mr Rajnarain, accused Nos 10 and 11, respectively, and their family in search of cash believed to be linked to the R31 B million SBV robbery.

1.2

During the course of the search of the house, Supt Havenga informed accused No 10 that it was the intention of the police that accused No 10 and her family would not be arrested but would be used as State witnesses.

1.3

Accused Nos 10 and 11 and their two children, Trevor and Tracy C were subsequently taken to the police station where they each deposed to a ''witness statement''.

1.4

The two accused and their children were all subpoenaed as State witnesses in the trial of Rajan and Loghandheran Naidoo which commenced in June 1997.

1.5

Prior to the commencement of the trial, the two accused D informed the Deputy Attorney-General, Advocate Gey van Pittius SC, that certain portions of their witness statements were factually incorrect. Through their counsel, Advocate Y Moodley SC, they presented the Deputy Attorney-General with a memorandum setting out their versions of what had transpired.

1.6

It was agreed between the Deputy Attorney-General and the legal E representatives of the accused that, provided one or more of accused Nos 10 and 11 and their two children were to testify in accordance with the versions set out in their witness statements, as amended by the abovesaid memorandum, they would not subsequently be prosecuted in connection with this case, notwithstanding the possibility that the Court in the abovementioned matter might refuse to indemnify any of F those of them who testify in terms of s 204 of Act 51 of 1977, because of the discrepancies between their original statements and their anticipated evidence. The number of the abovesaid members of the Rajnarain family to be called to testify was a matter solely within the discretion of the Attorney-General.

1.7

After the Court in the abovementioned case ruled against the G State in the inside trial relating to the admissibility of evidence pertaining to phone taps, the State closed its case. Consequently neither of the two accused nor either of their two children was ever called as State witness at that trial.

1.8

It may be accepted in favour of the two accused that they were willing to testify and had they been called as witnesses, would have H given evidence in accordance with the agreed facts.'

[73] While admitting the undertaking, the State argued that it was entitled to prosecute the two accused. As can be seen from the statement of agreed facts...