S v Tsochlas

• Jurisdiction: South Africa
• Judge: Rumpff JA, Holmes JA and Wessels JA
• Judgment Date: 12 November 1973
• Citation: 1974 (1) SA 565 (A)
• Hearing Date: 05 November 1973
• Court: Appellate Division

S v Tsochlas
1974 (1) SA 565 (A)

1974 (1) SA p565

Citation	1974 (1) SA 565 (A)
Court	Appellate Division
Judge	Rumpff JA, Holmes JA and Wessels JA
Heard	November 5, 1973
Judgment	November 12, 1973

Flynote : Sleutelwoorde

Mines and minerals — Diamonds — Buying or dealing in rough or uncut diamonds — Contravention of sec. 84 (1) (a) of Act 73 of 1964, as amended — Not necessary for delivery and payment to have been made to constitute offence — Trap — Parliament having countenanced trapping as a means of E controlling illicit diamond buying — Sec. 108 (2) — Evidence of traps to be treated with caution — Sentence — Court tending to harden against prevalence of illicit diamond buying by confirming sentences of imprisonment — Fine sounding in American dollars — Not irregular in circumstances — Criminal procedure — Evidence — Trap — Parliament having countenanced trapping as a means F of controlling illicit diamond buying — Act 73 of 1964, sec. 108 (2), as amended — Although traps not accomplices, their evidence must be treated with caution.

Headnote : Kopnota

Illicit diamond buying is prevalent in the Republic, to the detriment of the diamond industry and the fiscus, and G Parliament itself has in section 108 (2) of the Precious Stones Act, 73 of 1964, as amended, by implication countenanced trapping as a means of controlling it. Although traps are not regarded as accomplices, nevertheless their evidence is in general treated with caution because of a motive to favour the prosecution.

Appellant had been convicted of buying or dealing in diamonds in contravention of section 84 (1) (a) of Act 73 of 1964. From the evidence it appeared that appellant had agreed to buy a quantity of diamonds from S, a police trap, for R4 000 but that H the diamonds were to be delivered and payment of the purchase price to be made outside the Republic. Appellant was under the impression that it was no crime to buy diamonds in the Republic provided delivery was taken outside the Republic. Subsequently, when he returned from Zambia with the money which he had agreed to show to S, their agreement was varied to include a further seven diamonds and the purchase price increased to R5 000. The trap was then sprung. In an appeal against the conviction and sentence of 6 300 American dollars or its equivalent in rands and six months' imprisonment suspended conditionally,

Held, that the contention that the appellant had been unfairly trapped could not be upheld.

1974 (1) SA p566

Held, further, that it was not necessary for delivery and payment to have been made in order to constitute buying or dealing in contravention of section 84 (1) (a).

Held, further, that in recent years the Court had tended to harden against the prevalence of illicit diamond buying by confirming sentences of imprisonment.

A Held, further, that the sentence expressed in American dollars was not irregular nor because no provision had been made for a period of imprisonment failing payment thereof, since the money was in Court and was intended to be applied for the payment of the fine. Appeal accordingly dismissed.

Case Information

Appeal against a conviction and sentence in the Transvaal B Provincial Division (CLAASSEN, J.). The facts appear from the judgment of HOLMES, J.A.

E. M. du Toit, for the appellant: A trap is defined in S. v Malinga and Others, 1963 (1) SA at p. 693F - G. The origins of the trapping system are obscured in history but probably derive from the necessity of employing informers, spies, double C agents, agents provocateurs and the like in times of war or national peril. However, over the years it has grown insidiously, not only in the Republic but also in other civilised countries in the world and the need has arisen to re-examine, or possibly examine for the first time, the trapping system as a whole. The first judicial mention of the D trapping system in the Transvaal appears to have been in Myers and Misnum v Rex, 1907 T.S. 760. Since Myers and Misnum, supra, the system has undergone radical changes. As police trapping of members of the public increased, so did the criticism of the system, both by lawyers and by laymen especially in Rhodesia, England, the United States of America E and the Republic. See R. v Clever: R. v Iso, 1967 (4) SA 256; Browning v J. W. H. Watson (Rochester) Ltd., (1953) 2 All E.R. at p. 779; Brannan v Peek, (1947) 2 All E.R. at pp. 573 - 574; R. v Birtles, (1969) 1 W.L.R. 1047; Sneddon v Stevenson, (1967) 1 W.L.R. 1051.

In the U.S.A. abuse of the trapping system was curbed by the recognition in 1915 of the defence of "entrapment", the defence F which is contended for herein, in the case of Woo Wai v United States. Although the defence of entrapment appeals to one's instinctive sense of justice, the legal basis thereof is far from clear. See Sherman v United States of America, 356 U.S. 369, 2 L ed 2d at p. 854; Sorrells v United States of G America, 287 U.S. 435, 77 L ed 413; Kadish and Paulsen, Criminal Law and its Processes (sec. Entrapment) pp. 991 et seq. The most scathing judicial criticism of the trapping system in the Republic is to be found in R. v Vlok and Vlok, 1954 (1) SA 203. See also The Judicial Approach to Trapping Cases, 1954 S.A.L.J. 120; Simposium: Strafproseshervorming, 1970 T.H.R.H.R. at pp. 348 et seq. The Courts have endeavoured H to mitigate the trapping system in the following ways, see Vlok's case, supra; R. v V.C., 1960 (1) P.H. H187, by exercising a discretion on equitable principles. R. v Phineas, 1966 (1) SA 538 at p. 540; by requiring corroboration for the evidence given by traps: R. v Sassin, 1919 AD at p. 487; by treating the evidence of traps with suspicion: R. v V.C., supra; by imposing lesser sentences in "improper" trapping cases, Ebrahim and Others v Rex, 1950 (1) P.H. H67; R. v Ahmed, 1958 (1) SA at p. 317F - G; De Bruin v S., 1972 (1) P.H. H21; R. v Small, 1968 (3) SA 561; R. v Chando, 1968 (3) SA 119; Force

1974 (1) SA p567

v. R., 1958 (2) SA 375; R. v Clever: R. v Iso, supra; Browning v J. W. H. Watson (Rochester), Ltd., supra; R. v Birtles, supra; by prescribing rules of procedure for the trapping of persons: cf. R. v Omar and Another, 1948 (1) SA 76, and cases therein referred to.

As to the legality of a trap's conduct: a trap is an A accomplice, S. v Kellner 1963 (2) SA 435. The dictum in S. v Ganie and Others, 1967 (4) SA 203, was obiter. Intention is not to be confused with motive. Cf. Burchell and Hunt, S.A. Criminal Law and Procedure, vol. I (Traps), pp. 361 et seq. In addition a trap usually commits other offences as well. There B is no statutory authority for the trapping system. Cf. Branan v Peek, supra; secs. 5 and 6 of the Police Act, 7 of 1958. The only legislative enactments which may be construed in favour of the trapping system are sec. 108 of Act 73 of 1964 and the similar sec. 156 of the Mining Rights Act, 20 of 1967. Burchell and Hunt, op. cit., pp. 302 et seq., suggest that a trap is expressly or impliedly authorised by the State and is C not liable for proper conduct in the course of his trapping activities which would otherwise be criminal. A further suggestion has been that the trap is excused as the representative of the State inasmuch as the State is not bound by its own legislation. Cf. Glanville Williams, Criminal Law (The General Part) 2nd ed., (1961), p. 797; Steyn, Die Uitleg D van Wette, pp. 70 et seq. The preferable view is that suggested by Glanville Williams, op. cit., at pp. 798 et seq., namely that the common law doctrine of necessity excludes liability of the trap. So far the legality of the trapping system in the Republic has not been questioned. It has been held that a trap is not guilty of turpitudo. R. v Seebloem, 1912 T.S. 30, and that the trap is not in pari delicto. Cf. S. E v. Maritz, 1966 (1) SA 304, and the cases referred to therein. In Minister van Justisie v Van Heerden, 1960 (4) SA at p. 381, the Court expressed the view that the trap would have been in pari delicto had sec. 1 of Chap. 119 of the Orange Free State Law Book applied to the State. But cf. Minister of Police v Glass and Another, 1972 (3) SA at p. 523. In Ex F parte Minister of Justice: In re Rex v Maserow and Another, 1942 AD 164, this Court mero motu at p. 174 raised the possibility of a defence of entrapment in our law. Thereafter the defence of entrapment was raised in R. v Ahmed, supra. If the trapping system is held to be based on necessity, principles similar to those governing self-defence would apply, G i.e. each case will have to be treated on its merits and the Court will have to determine whether the methods employed were justified and, therefore, legal or illegal in the circumstances. The following bases have been suggested for a defence of entrapment: (a) the implied intention of the Legislature; (b) public policy, vide Kadish and Paulsen, op cit.; (c ) exclusion of evidence: (i) because the evidence was H wrongfully or illegally obtained, cf. Schmidt, Bewysreg, pp. 254 - 5; Kadish and Paulsen, op. cit., Hoffmann; South African Law of Evidence, 2nd ed., pp. 207 - 8; or (ii) because the Court in the exercise of a judicial discretion excludes the evidence. Schmidt, op. cit., pp. 255 - 6; Hoffmann, op. cit., pp. 209 - 210. In this regard see the head-note in R. v Murphy, 1965 N.I. 138 Ct. M.A.C. quoted in Sneddon v Stevenson, supra. Further this Court has an inherent jurisdiction to formulate a defence of entrapment. See Chotabhai

1974 (1) SA p568

v. Union Government and Another, 1911 AD at p. 30; Weinerlein v Goch Buildings Ltd., 1925 AD 282; Jajbhay v Cassim, 1939 AD 537. The trapping system is liable to abuse, R. v Viviers and Another, 1966 (4) SA at p. 134. A defence of entrapment A lies in South African law on grounds of public policy and equity.

In terms of the stare decisis rule the learned Judge a quo was bound by...