Print


 

 

List of Articles

 

POSSESSION OF FIREARMS BY A GROUP

ALTERNATIVE DISPUTE RESOLUTION

COMMON PURPOSE

SENTENCING-SOME MITIGATING FACTORS

CIRCUMSTANTIAL EVIDENCE

THE DOCTRINE OF RECENT POSSESSION  

PLANNED OR PREMEDITATED MURDER-GUIDELINES

UNDERCOVER OPERATIONS OR TRAPS


 

MATTERS OF INTEREST

This page contains summaries of cases and articles on various aspects of the law and content will be added on a regular basis. Many of the complete judgments delivered in cases that are summarised can be found in the South African Law reports, LexisNexis or other similar publications. A short summary will however enable the reader to decide whether further research and reading is necessary.


 


 

Possession of firearms by a group

 

The Courts are often faced with situations where unlawful firearms are found and the State cannot prove the physical possession of any of the firearms. In S v Khambule 2001 (1) SACR 501 (SCA) the Court found that the common intention to possess firearms jointly may be inferred in the circumstances of a particular case. This could for example be the case where a robbery had been committed and the firearms were used to perpetrate the crime. The Court ruled that in such a case the possession of the firearms was advantageous to the group or members of the gang. Each member of the gang therefore associates him/herself with the possession of firearms by every other gang member.

 

In S v Mbuli 2003 (1) SACR 97 (SCA) the reasoning in Khambule was not accepted. Instead the issue is decided with reference to answers to the question whether the State has established facts from which it can properly be inferred that:

a. The group had the intention (animus) to exercise possession of the guns through the actual detentor and

b. The actual detentors had the intention to hold the guns on behalf of the group.

It is only if both requirements are fulfilled that there can be joint possession involving the group as a whole and the detentors or common purpose between the members of the group to possess all the firearms.

 

The latter view was confirmed in Molimi v the State 2006(2) SACR 8 SCA

 


ALTERNATIVE DISPUTE RESOLUTION or
THE ALTERNATIVE TO LITIGATION

by Adv Danie Theunissen


Every human being, whether married, single, parent, rich, poor, or from whichever walk of life, runs the risk of landing in a position of such conflict as can only be “terminated” by a court case. If such a person happens to make a living out of business, one dares to make the statement that the risk of an unwanted court case is increased exponentially!
The result of a court case could hardly ever be termed a “solution”. Our legal system is adversarial and arguments are used to “win” the case – hence the win/lose outcome that we’ve learnt to live with as a result of litigation. Finality is of course also a problem, as a very expensive appeal could follow at the end of a trial, potentially resulting in the “win/lose” to be overturned to a “lose/win”! The question could fairly be asked whether the result should not be termed “lose/lose” . . .
In litigation, the emphasis is on (the winning) argument, rather than on the solution of the dispute.


Alternative Dispute Resolution (ADR)


ADR offers a cheaper, more practical, private and final solution to disputes. It is also readily accessible to business people. There are two forms: Mediation and Arbitration.


Mediation


Parties to a dispute frequently have their best endeavours to reach resolve and negotiate with “the other side” towards this purpose. However, deadlocks can cause the dispute (still!) to find its way to the court room and a mediator is best suited to assist the parties to reach the settlement which would normalise their business relationship.
During mediation the parties remain in control as the mediator simply assists the parties to settle – a mediator has no powers to decide the dispute or to force an outcome. For this reason it is also advisable for parties to a dispute to start with mediation – especially as they themselves are best equipped to decide which outcome would suit their position.
Although they are quite entitled to approach the mediation with legal assistance, they could also agree to approach it unrepresented which would save on expensive legal costs and time-consuming technical arguments – rather an independent and impartial person (the mediator) quickly defining the problem, finding common ground between the parties and assisting them to reach a solution which they themselves are prevented from “seeing” as a result of factors of position, personality, unrealistic expectations, etc.
Contrary to litigation, the parties take ownership of the “outcome” and are more inclined to stick to the terms of the settlement, which in turn prevents further disputes & legal costs and results in a more certain business relationship.
Hence the conviction – mediation results in a win/win-solution!


Arbitration


This process provides the parties less control than mediation in the sense that it is closer to litigation. The major difference to litigation is that the parties agree on an arbitrator (again an impartial and independent person) who will decide the outcome of the dispute, called an award.
The benefit is that the parties agree, in writing, that their dispute will be referred to arbitration, thereby agreeing on who the arbitrator will be (in litigation the parties cannot choose their judge). To be able to appoint a specific person (or persons) as arbitrator has the benefit that an arbitrator can be chosen who is knowledgeable of the technicalities of a dispute. Furthermore, the hearing will be in private (unlike a court case which is done in public with all the concomitant publicity). Probably the major benefit to arbitration is the finality of the outcome (usually there is no appeal against the award of the arbitrator).
ADR provides the opportunity for disputing parties not only to settle their differences, but also to proceed with a normalised business relationship.

 

 


 

In this article a few observations on common purpose in our Criminal Law are made with reference to some authority and the approach to mens rea when the principles are applied.

COMMON PURPOSE

The so-called ‘doctrine of common purpose’ has received much focus in our Courts and is often invoked by the State in prosecutions for crimes involving a group of persons.

It is not some magic formula, which can be invoked by the State in circumstances where it is unable to prove the liability of an accused person in a given set of circumstances. It is in essence no more than an approach to a set of facts and the application of inferential reasoning to those facts in order to decide whether an accused person is liable for the crimes committed as a result of the fact that he /she acted in concert with others

The learned writer Snyman in his work ‘Criminal Law’ 4th Edition illustrates this situation as follows:

‘The main principles relating to perpetrators may be summarised as follows:

  1. A person is a perpetrator if-
    1. His conduct, the circumstances in which it takes place (including where relevant, a particular description with which he as a person must according to the definition of the crime comply), and the culpability with which it is carried out, are such that he satisfies all the requirements for liability contained in the definition of the crime; or
    2. Although his own conduct does not comply with that required in the definition of the crime, he acted together withone or more persons and the conduct required for a conviction is imputed to him by virtue of the principles relating to common purpose…'

 

It is generally applied to those cases where a Court cannot establish with any degree of certainty which members of a group committed the crimes in question but it has not been confined to matters of this nature and its application has expanded.

In S v Malinga and Others 1963 (1) SA 692 (AD) at 694 Fthe Court referred to its application as follows:

‘The position is that once it has been proven that the participants formed a common purpose, such as to rob, each member of the group is criminally responsible for all the acts committed by any other member of the group, provided that each such member associated himself with the commission of such acts.’

It therefore does not follow automatically that one member of the group is held responsible for the conduct of any of the others just because he /she is a member of the group.

There are certain prerequisites, which must be established before a member of the group who has not causally contributed to the relevant crime can be held liable for those events. In S v Mgedezi and Others 1989 (3) SA 687 (A) at 705 and with reference to S v Safatsa and Others 1988 (1) SA 868 (A)the Court set out these prerequisites as follows:

  1. The accused must have been present at the scene where the violence or crime was committed,
  2. The accused must have been aware of the violence or crime,
  3. The accused must have intended to have common cause with those actually perpetrating the crimes,
  4. The accused must have performed some act of association with the conduct of the others,
  5. The accused must have had the requisite mens rea (either in the form of dolus directus or one of the other recognized forms.

One of the essential elements is that conduct by a member of the group, which differs from the conduct envisaged in the said common purpose may not be imputed to another member of the group unless the latter knew that such other conduct would be committed, or foresaw the possibility that it might be committed and reconciled him/herself to that possibility.

The doctrine has been challenged in terms of the Constitution but it was found not to be unconstitutional. See S v Thebus and Another 2003 (2) SACR 319 CC.

The Court must apply a subjective test in determining the mens rea of an accused and in applying the principles of inferential reasoning to the facts must bear in mind that the inference to be drawn must be the only reasonably inference.

In S v Sigwala 1967 (4) SA 566 A at 570, Holmes JA (as he then was) set out the test to be applied in no uncertain terms. He stated:

‘Subjective foresight, like any other factual issue, may be proved by inference. To constitute proof beyond a reasonable doubt the inference must be the only one, which can reasonably be drawn. It cannot be so drawn if there is a reasonable possibility that subjectively the accused did not foresee even if he ought reasonably to have done so, and even if he probably did do so.’

The legal position supra was confirmed more recently in S v Lungile and Others 1999 (2) SACR 597 (SCA) and the Court cautioned that deductive reasoning could be misleading in such cases.

The Court stated at 607:

‘But this Court has cautioned, on several occasions, that one should not too readily proceed from “ought to have foreseen” to “must have foreseen” and hence to “by necessary inference in fact did foresee” the possible consequences of the conduct inquired into. Dolus being a subjective state of mind, the several thought processes attributed to an accused must be established beyond any reasonable doubt, having due regard to the particular circumstances of the case…’

Generally the event must be a contingency envisaged by an accused in his/her particular situation and therefore one in which he/she persisted, reckless of such consequences and with mens rea at least in the form of dolus eventualis. See S v Mkhwanazi 1998 (2) All SA 53 (A) at 56 and S v Maritz 1996 (1) SACR 405 (A) at 415.

In S v Molimi and Another 2006(2) SACR 8 (SCA) the Court recognised the fact that there would be circumstances in which a participant in a robbery (or any other relevant crime) would not be required to anticipate every unlawful act in which each of the participants may conceivably engage in the pursuit of the objectives of the common purpose.

It is therefore important that when the doctrine of common purpose is applied the requirement of mens rea is established from the facts of the particular case.


 

SENTENCING- SOME MITIGATING FACTORS

It is often said that the sentencing process in a criminal trial is the most difficult part of the trial yet much less attention is given to this process than the process leading up to conviction. Legal representatives in all matters particularly those of a serious nature should investigate all the circumstances to determine what mitigating factors are present and take steps to ensure that the Court is apprised of all these circumstances. This should entail the presenting of evidence in mitigation of sentence and not just an address from the bar. There are always factors, which can serve to reduce a sentence, and the cumulative effect of many of the factors can be the difference between a minimum sentence being imposed and the Court exercising its discretion and imposing a lesser sentence. Here are some of the factors, which could be relevant:

  • The age of the accused

Advanced age is a factor as is youthfulness. When an accused is very young a social workers report and an investigation of possible intervention and referrals to a children’s’ court are essential.

  • The marital status of the accused and his/her dependants

This is relevant but often does not receive the attention it deserves. If necessary pre-sentence reports can be obtained or other suitable evidence presented to indicate clearly to the Court what the effect of a particular sentence will be on the spouse and the dependants of the accused. Other sentencing options to imprisonment should be investigated and requests made to the Court in this regard.

  • The accused’s background and standard of education

This can be important when the way in which the accused grew up and the influence on him as a person are relevant.

  • The employment record of the accused

This can indicate that the accused is a useful citizen in society and that he has a stable position and contributes to the welfare and maintenance of dependants.

  • The health of the accused

Illness should play a role and can have an effect on the type of sentence that is appropriate and the period of imprisonment imposed. It may be appropriate in the circumstances to look at alternatives to imprisonment such as a suspended sentence or correctional supervision even when serious crimes are involved. In S v Magida 2005 (2) SACR 591 (SCA) at 595-596 the Court remarked as follows:

Whilst it is correct that any illness does not per se entitle a convicted person to escape imprisonment, the facts presented to us by the appellant and the issue raised before the Court below comprise matter forming part of the totality of the circumstances of a convicted person that ought to be considered in order to do justice both to the person to be sentenced and to society’

In addition, at 596 the Court went further and said:

‘…it has been held that a court, in considering an appropriate sentence, may take into account a convicted person’s ill health and how it may relate to the effect of a contemplated sentence. Thus, for example, a particular sentence may be rendered more burdensome by reason of an offender’s state of health’.

  • Detention prior to sentencing

In this country there is still no statutory provision indicating that the period of detention prior to sentence must be considered and which indicates how this is to be calculated. In Canada, for instance this is regulated by statute. In practice, it is accepted that this should reduce the sentence and the Courts on appeal often reduce sentences where the Court a quo has not done so. See S v Bromphy & Another 2007 (2) SACR 56 (W), S v Vilikazi & Others 2000 (1) SACR 140 (W), S v Ngomane 2007(2) SACR 535 (W) and S v Phillip 1990(2) SACR 442 (C).

  • Influence

If the circumstances of the crime warrant inferences that there was strong influence on an accused to commit a crime either due to him/her being someone susceptible to such influence or a youth then it is important that the Court is informed through appropriate evidence of the circumstances.

  • No previous convictions and the character of the accused

Leading a life free from crime up to the first offence or being a law-abiding citizen is an important factor and can mean the difference between a sentence of imprisonment and an alternative sentence or a substantial reduction in sentence. In S v Scott 1969 (1) SA 545 (D) the Court approached this factor as follows:

‘It is a well‑known and well‑recognised principle which is constantly adhered to and followed in our Courts, that a first offender, particularly one who is no longer a young man and has led a blameless life, who has a clear record should not easily or lightly be sent to gaol without the option of a fine. The underlying principle would appear to be that persons of that nature who have demonstrated by their way of life that they are law abiding citizens should not lightly be sent to gaol. This is a salutary principle and one which I think ought to be followed even in a case of this nature where the nature of the crime is serious and where the Legislature has indicated by the nature of sentences to be imposed, that the Legislature regards the crime as a serious one.’

  • Degrees of Participation

There should always be a distinction between a perpetrator and for example an accessory after the fact. Moral blameworthiness differs in every case and someone who acts with a direct intention should be treated more harshly when a sentence is imposed than someone who acted with dolus eventualis or did not directly perpetrate a crime. Influence by a group or peer pressure can also play a role. See S v Mtshali 1991 (3) SA 255 (A)

  • Contrition and Remorse

True remorse often reflected in deeds rather than words play an important role because it shows that an accused person is capable of speedier rehabilitation. If the accused gave his cooperation during the investigation of the crime or contributed in any way in alleviating the loss to a victim, then these factors should be placed before the Court.

  • Mercy

In these times when we are faced with serious crimes that are punished with minimum sentences the role that mercy plays in sentencing is often overlooked. The element of mercy should still play a significant role in the imposition of a sentence. In S v V 1972 (3) SA 611 at 614 the Court remarked:

‘The element of mercy, a hallmark of a civilised and enlightened administration, should not be overlooked, lest the court be in danger of reducing itself to the plane of the criminal…’ ‘It is an element of justice itself.’

See also S v Van Der Westhuizen 1974 (4) SA 61 (C).

  • The cumulative effect of sentences on multiple counts

Sentences are generally imposed for each count upon which an accused person has been convicted. Although a particular sentence may be appropriate for a particular charge, it is oftendisregarded that a range of sentences on multiple counts may make the cumulative sentence too harsh and disproportionate to the crimes in question. It is important that this factor be brought to the court’s attention.

  • Minimum Sentences and substantial and compelling circumstances

Before a court can deviate from a minimum sentence prescribed by the Legislature, it must find that ‘substantial and compelling’ circumstances are present.

It often happens that a single factor when considered immediately leads one to believe that it is neither ‘substantial’ nor ‘compelling’ and no reason to request the Court to find that it is. What is required is that a step back is taken and the cumulative effect of all the relevant circumstances is considered to determine whether they are ‘compelling and substantial’. Most of the time this process will lead to a totally different picture and approach. This is what the Supreme Court of Appeals has been emphasising in various judgments. It is in my view more of a mindset than anything else. The process involves taking all the relevant factors some of which are mentioned above and determining whether the cumulative effect calls for a deviation from the minimum sentence prescribed. One must bear in mind that the seriousness and nature of the offence and the interests of the community have not been dealt with here are also part of the factors which are placed into the sentencing ‘pot’. In S v Malgas 2001 (1) SACR 469 (SCA) at par. F-I, the Supreme Court of Appeal summarised the position in the following manner:

‘F.        All factors (other than those set out in D above) traditionally taken into account in sentencing (whether or not they diminish moral guilt) thus continue to play a role; none is excluded at the outset from consideration in the sentencing process.

G.         The ultimate impact of all the circumstances relevant to sentencing must be measured against the composite yardstick ('substantial and compelling') and must be such as cumulatively justify a departure from the standardised response that the Legislature has ordained.

H.         In applying the statutory provisions, it is inappropriately constricting to use the concepts developed in dealing with appeals against sentence as the sole criterion.

I.          If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.’

The Courts furthermore must complete this exercise in every case involving a minimum sentence, as indicated in S v Vilakazi 2009(1) SACR 552 (SCA) at 560:

‘It is clear from the terms in which the test was framed in Malgas and endorsed in Dodo that it is incumbent upon a court in every case, before it imposes a prescribed sentence, to assess, upon a consideration of all the circumstances of a particular case, whether the prescribed sentence is indeed proportionate to the particular offence’

The imposition of sentence is therefore often far more difficult than it seems. The Court cannot consider factors of which it is unaware and the importance of placing all the relevant factors before the Court cannot be overemphasised or underestimated.


CIRCUMSTANTIAL EVIDENCE AND INFERENTIAL REASONING

 

Many criminal cases are tried based on circumstantial evidence because either no direct evidence exists or the direct evidence available does not withstand judicial scrutiny.

In many instances, circumstantial evidence can carry more weight than direct evidence. In a criminal case the test for guilt remains proof beyond a reasonable doubt, whether that proof has been established by means of direct evidence or circumstantial evidence or a combination of the two.

When circumstantial evidence is considered, the most important element is the exercise of establishing the objective or positive facts on which inferences can be made. If the determination of the objective facts is shaky or subject to criticism then the exercise of reasoning by inference will undoubtedly fail. Once the objective facts have been determined with the certainty required by the law the exercise of reasoning by inference can take place and the rules of logic and common sense can be applied to the facts.

When reasoning by inference one must avoid the pitfalls of such an exercise by clearly distinguishing between inference one the one hand and conjecture and speculation on the other.

When we are faced with a particular set of facts, we all have our opinions on what took place even if the evidence does not indicate these facts clearly. Human imagination and the ability to speculate often allow us to complete the picture without even establishing the theme. When we do so we often speculate or subject the facts to conjecture.

Conjecture may be defined as the act of forming an opinion not based on definite evidence or proof. In everyday life we do this all the time. We are given a set of scanty facts in the media and by the end of the day an entire story has been built up around those facts without that story being supported by the facts that we were given in the first place. Rumours are often spread by conjecture.

Speculation is a conclusion or opinion based on conjecture. In law then the difference between conjecture, speculation and inferential reasoning is that the latter is based on the facts of a case.

 How then does one avoid the pitfall of substituting one’s own opinion that may be biased or even devoid of logic with proper inferential reasoning? The answer lies in applying a simple test to each set of positive facts. This test has been around for a long time and is found in the judgment of Chief Justice Watermeyer (as he then was) in the case of R v Blom 1939 AD 188 at 200. He said:

‘In reasoning by inference there are two cardinal rules of logic, which cannot be ignored:-

  1. The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn.
  2. The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.’

In essence the process is one of logic and the elimination of all other reasonable inferences before the inference determined is acceptable.

 It is important to remember that there may be many variables that can be inferred from a given set of facts, but it is only those inferences that are reasonable in the circumstances that are under consideration.

 Take the simple scenario of X lying dead on the floor with a knife wound in her heart and Y standing over the body with a bloodied knife in his hand. How many inferences can you draw from these facts? The first inference you made was probably that Y stabbed X. Another inference is that Y discovered the body and picked up the knife.  Is the second inference reasonable in these circumstances? In addition, if we add the fact that Y threatened to kill X prior to the incident what would your conclusion be based on the limited facts at your disposal.

This leads to the principle that when circumstantial evidence is considered the correct approach is not to take each fact separately and try to reach a conclusion but to weigh up the cumulative effect of all the facts and then reach a conclusion. In S v Ntsele 1998 (2) SACR 178 (SCA) the Supreme Court of Appeal did just that in arriving at a conclusion. The Court held:

Voorts, wanneer ‘n Hof met omstandigheidsgetuienis werk, soos in die onderhawige geval, moet die Hof nie elke brokkie getuienis afsonderlik betrag om te besluit hoeveel gewig daaraan geheg moet word nie. Dit is die kumulatiewe indruk wat al die brokkies tesame het wat oorweeg moet word om te besluit of die aangeklaagde se skuld bo redelike twyfel bewys is.’

 

The standard required however remains proof beyond a reasonable doubt. 


 

 

THE DOCTRINE OF RECENT POSSESSION OF STOLEN GOODS

 

The approach to circumstantial evidence was dealt with in a separate article. What is sometimes called the doctrine of recent possession is in effect just another way of applying the principles applicable to circumstantial evidence to a specific set of facts. It is important to realise this fact because it is often possible to fall into the trap of believing that this is some special and unique doctrine which offers a magic formula to a difficult situation. The very same rules of common sense and logic apply.

 

The principles are often applied to the following simple scenario:

A motor vehicle is stolen. Shortly after it is stolen, (which can be a couple of days or much longer) X is found in possession of the vehicle. He is arrested and tried for theft of a motor vehicle.

If the Court trying the matter is fortunate there will be some other aspects indicating the guilt of an accused but for the purposes of this article the facts above are those revealed in the evidence.

The first important point to remember is that the onus does not change when this scenario is considered and remains on the State to prove its case beyond a reasonable doubt.

If an accused in these circumstances fails to give an explanation concerning his possession of the vehicle, he/she may be convicted. If he/she gives a false explanation which is rejected by the Court he/she may also be convicted.

 If however he/she gives an explanation which in the light of the circumstances is reasonable possibly true then he/she must be acquitted.

 These principles are expressed in the following cases:

In S v Parrow 1973 (1) SA 603 (A the Court remarked:

‘I pause here to refer briefly to the so-called doctrine of recent possession of stolen property. In so far as here relevant, it usually takes this form: On proof of possession by the accused of recently stolen property, the Court may (not must) convict him of theft in the absence of an innocent explanation which might reasonably be true. This is an epigrammatic way of saying that theCourt should think its way through the totality of the facts of each particular case, and must acquit the accused unless it can infer, as the only reasonable inference, that he stole the property.’

The Court in S v Thebe and Others 1961 (2) PH H 247 (AD) stipulated the same approach in a different way:

‘Where a person was found in possession of a stolen motorcar within a short time after its theft, that fact was evidence , though not necessarily proof, of the fact that that person not only stole the motorcar but that he had throughout been in possession thereof. The circumstances in which he came to obtain possession of the motorcar are usually peculiarly within his own knowledge and if he fails to advance an explanation then or puts forward a false explanation of his possession, then unless the evidence taken as a whole suggests that there may nevertheless be an explanation reasonably consistent with his innocence, he may properly be convicted.’

 

This  so called doctrine does not only apply to cases of theft but to any matters which involve the possession of stolen property or for that matter property from which an inference can be drawn that a crime was committed by the possessor thereof. See S v Jantjies 1999 (1) SASV 32 KPA.

The principle, that the inference which is sought to be drawn must be the only reasonable inference remains even when this more direct approach to the evidence is applied. 


WHEN IS MURDER PLANNED OR PREMEDITATED?

 

The first thing one should do is to look at the ordinary and general meaning of the words.

We know that murder is the unlawful and intentional killing of another human being.

Planned is:

  • ‘To prepare a method, program, or outline for.
  • To have in mind as a purpose.’

(Colliers Dictionary)

 

With reference to the Concise Oxford English dictionary, ‘premeditate’ means ‘to think out or plan beforehand’ and ‘to plan’ means ‘to decide on, arrange in advance, make preparations for an anticipated event or time.’

In the case law, Bozalek J in S v Raath 2009 (2) SASV 46 (C) par.16 remarked as follows:

 

‘In my view only an examination of all the circumstances surrounding any particular murder, including not the least the accused’s state of mind, will allow one to arrive at the conclusion as to whether a particular murder is ‘planned or premeditated.’ In such an evaluation the period of time between the accused forming the intent to commit the murder and the carrying out of this intention is obviously of cardinal importance but equally does not at some arbitrary point provide a ready-made answer to the question of whether the murder was ‘planned or premeditated.’


  

 

UNDERCOVER OPERATIONS OR TRAPS (A BRIEF LOOK AT THE PRINCIPLES)

GENERAL

  • The evidentiary rules and process to be followed to rule on the admissibility or not of evidence emanating from a trap or undercover operation are governed by the provisions of s 252A of the Criminal Procedure Act, 51 of 1977.Our law does not recognise the special defence of entrapment but merely requires a court to consider the relevant circumstances and allows for the exercise of a discretion to exclude evidential material where conduct went beyond providing for the opportunity to commit an offence.  See S v Kotze 2010 (1) SACR 100 (SCA) par 21, S v Hammond 2008 (1) SACR 476 (SCA) par 22 and S v Odugo 2001 (1) SACR 560 (W) par 27.

 

  • Section 252 A (1) reads as follows:

“Any law enforcement officer, official of the State or any other personauthorisedthereto for such purpose (hereinafter referred to in this section as an official or his or her agent) may make use of a trap or engage in an undercover operation in order to detect, investigate or uncover the commission of an offence, or to prevent the commission of any offence, and the evidence so obtained shall be admissible if that conduct does not go beyond providing an opportunity to commit an offence: Provided that where the conduct goes beyond providing an opportunity to commit an offence a court may admit evidence so obtained subject to subsection (3).”

 

  • The evidentiary rule created by the section provides for two distinct scenarios or phases. In an instance where the conduct does not go beyond providing an opportunity to commit an offence the evidence is admissible. In this phase no discretion is exercised. In an instance where the contrary is established, the evidence may be admitted by the court subject to subsection (3).

SECTION 252A (2)

  • In deciding whether the conduct went beyond providing an opportunity to commit an offence, the court is obliged to consider the factors indicated in s 252A (2). It reads as follows:

“(2) In considering the question whether the conduct goes beyond providing an opportunity to commit an offence, the court shall have regard to the following factors:

(a) Whether, prior to the setting of a trap or the use of an undercover operation, approval, if it was required, was obtained from the attorney general to engage such investigation methods and the extent to which the instructions or guidelines issued by the attorney-general were adhered to;

(b) the nature of the offence under investigation, including-

(i) whether the security of the State, the safety of the public, the maintenance of public order or the national economy is seriously threatened thereby;

(ii) the prevalence of the offence in the area concerned; and

(iii) the seriousness of such offence;

(c) the availability of other techniques for the detection, investigation or uncovering of the commission of the offence or the prevention thereof in the particular circumstances of the case and in the area concerned;

(d) whether an average person who was in the position of the accused, would have been induced into the commission of an offence by the kind of conduct employed by the official or his or her agent concerned;

(e) the degree of persistence and number of attempts made by the official or his or her agent before the accused succumbed and committed the offence;

(f) the type of inducement used, including the degree of deceit, trickery, misrepresentation or reward;

(g) the timing of the conduct, in particular whether the official or his or her agent instigated the commission of the offence or became involved in an existing unlawful activity;

(h) whether the conduct involved an exploitation of human characteristics such as emotions, sympathy or friendship or an exploitation of the accused's personal, professional or economic circumstances in order to increase the probability of the commission of the offence;

(i) whether the official or his or her agent has exploited a particular vulnerability of the accused such as a mental handicap or a substance addiction;

(j) the proportionality between the involvement of the official or his or her agent as compared to that of the accused, including an assessment of the extent of the harm caused or risked by the official or his or her agent as

compared to that of the accused, and the commission of any illegal acts by the official or his or her agent;

(k) any threats, implied or expressed, by the official or his or her agent against the accused;

(l) 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;

(m) whether the official or his or her agent acted in good or bad faith; or

(n) any other factor which in the opinion of the court has a bearing on the question.”

 

SECTION 252A (3)

  • In an instance where the court finds that the conduct went beyond providing an opportunity to commit an offence the provisions of s 252 A (3) are applicable: It reads:

“3) (a) If a court in any criminal proceedings finds that in the setting of a trap or the engaging in an undercover operation the conduct goes beyond providing an opportunity to commit an offence, the court may refuse to allow such evidence to be tendered or may refuse to allow such evidence already tendered, to stand, if the evidence was obtained in an improper or unfair manner and that the admission of such evidence would render the trial unfair or would otherwise be detrimental to the administration of justice.

(b) When considering the admissibility of the evidence the court shall weigh up the public interest against the personal interest of the accused, having regard to the following factors, if applicable:

(i) The nature and seriousness of the offence, including-

(aa) whether it is of such a nature and of such an extent that the security of the State, the safety of the public, the maintenance of public order or the national economy is seriously threatened

thereby;

(bb) whether, in the absence of the use of a trap or an undercover operation, it would be difficult to detect, investigate, uncover or prevent its commission;

(cc) whether it is so frequently committed that special measures are required to detect, investigate or uncover it or to prevent its commission; or

(dd) whether it is so indecent or serious that the setting of a trap or the engaging of an undercover operation was justified;

(ii) the extent of the effect of the trap or undercover operation upon the interests of the accused, if regard is had to-

(aa) the deliberate disregard, if at all, of the accused's rights or any applicable legal and statutory requirements;

(bb) the facility, or otherwise, with which such requirements could have been complied with, having regard to the circumstances in which the offence was committed; or

(cc) the prejudice to the accused resulting from any improper or unfair conduct;

(iii) the nature and seriousness of any infringement of any fundamental right contained in the Constitution;

(iv) whether in the setting of a trap or the engagement of an undercover operation the means used was proportional to the seriousness of the offence; and

(v) any other factor which in the opinion of the court ought to be taken into account.”

  • In this instance the court must exercise a discretion after considering the factors set out above.

 

            PROCEDURAL ASPECTS

  • The State bears the onus of proving that the evidence is admissible in phase1 beyond a reasonable doubt. Phase 2 provides for the lesser burden of proof, that of a balance of probabilities.
  • The evidence forms part of the probative material if ruled admissible and will be evaluated at the end of the case together with the rest of the evidence to establish the evidential value and weight thereof, and to determine whether the State has proved its case against the accused.
  • A cautionary rule relating to the evidence of traps will apply and will be applied to determine the evidential value. See S v Govender [2006] 4 All SA 449 (N) at 454.
  •  The ruling on admissibility is an interlocutory issue and the court may, at any stage before judgment, reconsider its ruling. See S v Mkwanazi 1966 (1) SA 736 (A) 743; S v W 1963 (3) SA 516 (A); Hiemstra, (CRIMINAL PROCEDURE) 6th Ed 579; Schmidt, (LAW OF EVIDENCE) 4th Ed 372.

                                      0000000000000000000000000

 

 

Submit your website to 20 Search Engines - FREE with ineedhits!

SEO Services

 

free counters

 

Copyright © 2021 Advocate Klopper. All Rights Reserved.
Joomla! is Free Software released under the GNU General Public License.
Website by Quartershark.com
Joomla dark templates by template joomla