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S v Lachman (CA&R 202/2007) [2008] ZAECHC 202 (27 November 2008)

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FORM A

FILING SHEET FOR EASTERN CAPE DIVISION JUDGMENT

PARTIES:

AKASH LACHMAN Appellant

and

THE STATE Respondent

Case Number: CA&R 202/2007
High Court: EASTERN CAPE DIVISION

DATE HEARD: 19 November 2008

DATE DELIVERED: 27 November 2008

JUDGE(S): KROON, PICKERING, JJ

LEGAL REPRESENTATIVES –

Appearances:

For the Appellants(s): J R Koekemoer
for the Respondent(s): N Henning

Instructing attorneys:

Appellant(s): Neville Borman & Botha
Respondent(s): DPP, Grahamstown

CASE INFORMATION -

Nature of proceedings : Criminal Appeal
Topic:
Key Words:

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

Case No. CA&R 202/2007

AKASH LACHMAN Appellant

and

THE STATE Respondent

Heard on : 19 November 2008

Decided on : 27 November 2008

JUDGMENT

KROON J:

Introduction:

The appellant in this matter appeared in the regional court on a charge of corruption in contravention of s 1(1)(b) of 1992. The essence of the charge against the appellant was that whilst employed as an auditor by the South African Revenue Services, East London (SARS) he corruptly attempted to solicit a bribe from a Mr Mokoena as a reward for committing or omitting to do an act which constituted an excess of his powers as such auditor or a neglect of his duties as such auditor, alternatively for committing or omitting to do an act in relation to such powers or duties.
Despite his plea of not guilty the appellant was convicted on the said charge. He was sentenced to five years’ imprisonment of which two years were conditionally suspended on appropriate conditions.
With the leave of the court a quo he now appeals against both the conviction and the sentence.

Facts common cause or not in dispute
The facts tabulated in the paragraphs that follow were either common cause or not in dispute.
Mokoena was at all material times the owner of a business entity styled Investorex trading as Kwasaka Agencies. He was registered with the East London branch of SARS as a vendor liable to pay Value Added Tax (“VAT”).
His file at SARS was attended to by the appellant in his capacity as auditor together with another auditor, Ms S Taylor. The latter was what was referred to during evidence as the “lead auditor” in respect of the file. Mokoena’s cellphone number, 0836653975, was recorded on his file.
On 23 September 2003 Mokoena received a telephone call from the SARS office in East London, the caller identifying himself as “Mr Lachman”. (It was not in dispute that the caller was in fact the appellant). The appellant sought certain details from Mokoena relating to his tax affairs. Mokoena suggested that he rather call on the appellant to discuss the matter. He thereupon proceeded to the SARS offices where he had an interview with the appellant in one of the front cubicles in the building. The appellant advised Mokoena that he had not submitted his tax returns and that SARS had decided to conduct an audit of his business affairs. Mokoena was also requested to submit certain further information.
On his return home shortly after 4 p.m. Mokoena received an SMS message on his cellphone. The SMS emanated from a cellphone with no. 0726786492. The message read as follows:

“I can help you with your tax affairs, you have got problems and I can help you with your tax affairs.”

Mokoena was further instructed that he should not telephone the number from which the SMS was received, he was to reply only via an SMS; it was dangerous to talk over the telephone as the sender worked at SARS and they should only communicate via SMS. Later that same evening he received a further SMS from the same cellphone advising him that he would only have to pay SARS the amount of R10 000,00, and then all his books with SARS would be up to date. (All the SMS’s referred to below also emanated from the same cellphone). He received yet a further SMS that evening requesting him to pay R60 000,00 “in order to make my problems with the Receiver disappear”. After commenting to his wife that the person was playing a game with him, and he did not know what it was all about, he sent a reply to the effect that he only had R30 000,00 available. The response thereto read as follows: “I am doing you a favour, that’s only half the amount and I am doing you a favour.”
On the following day he received a further SMS enquiring when he would have the money available. He decided to ignore this SMS, as also further SMS’s he received that day.
A few days later he received a fax from the SARS offices, signed by Ms Taylor and the appellant, requesting a list of his assets and his banking and other details.
Receipt of the fax was followed by another SMS reading as follows: “I work at SARS, nobody can help you but me. Not even your accountant can help you.” This SMS was followed by another one enquiring whether he had received the fax.
Mokoena subsequently had another meeting with the appellant at the SARS offices during which the latter informed him that the Special Investigating Unit of SARS intended to charge him and secure a criminal conviction for tax evasion. The appellant highlighted the seriousness of the matter.
Within about 20 minutes of his leaving the SARS offices Mokoena received a further SMS that canvassed the same aspects that had been raised with him by the appellant during the meeting.
The SMS’s continued thereafter, Mokoena stating that he could have received over 200 of them.
On Monday 13 October 2003 Mokoena received a further SMS instructing him to pay R20 000,00 or the deal was off (leaving him to face the music of the investigating unit).
Mokoena thereupon consulted his attorney who advised him to enlist the services of a private investigator. He accordingly approached Mr Power, a private investigator. The latter advised him that he would contact SARS and in the meantime Mokoena should “play along” with the author of the SMS’s.
Early on the morning of Thursday 16 October 2003 Mokoena received a further SMS instructing him to deliver the R20 000,00 to the author. He contacted Power again who advised him to draw some money. Mokoena drew R20 000,00 in notes. Thereafter Mokoena, together with his attorney, Mr Malusi, met Power at his office. There Power introduced him to Capt Buys and Insp McIntyre of the Organised Crime Unit of the South African Police Services. (Power had in the interim contacted the Organised Crime Unit, which led to Buys and McIntyre calling at his office). Mokoena favoured Buys with a brief history of the matter.
Whilst he was with Buys Mokoena received a further SMS asking whether he had the money. He replied to the effect that he was still getting everything in order. Buys checked Mokoena’s cellphone and noted that the SMS had originated from another cellphone with the number 0726786492.
Several further SMS communications passed between Mokoena and the sender and Mokoena advised the latter that the money was ready, the figure agreed upon being R20 000,00. Buys, however, instructed Mokoena to provide only R5 000,00. Photocopies of a number of the notes were made, in order to record the serial numbers. A further SMS received by Mokoena gave him the following instructions: the money was to be placed in an envelope addressed to “Mr Nkula c/o Riette Fellows” and marked “Private and Confidential” and the envelope had to be delivered to the reception desk at the SARS offices with the message that the envelope had to be taken to the desk of Ms Fellows. Buys marked an envelope as instructed (later identified by him in court as exh 1), and the R5 000,00 was put in the envelope.
Ms Fellows was the team leader of the audit section of SARS, East London. She was, however, not at work that day, but was on sick leave. She knew nought of a man named Nkula or of the fact that any envelope was to be delivered to her office on the day in question. She confirmed that Mokoena was in arrears with his tax returns. Similarly, Ms Taylor was not at work on the day in question.
Prior to calling at Power’s office, Buys had received instructions from Supt Oates to make contact with Power. Oates gave him details of what was afoot including that the intended receipt of the bribe was to take place that morning. Buys thereupon contacted Supt van der Merwe who was based at the legal department of the SAPS. The reason he did so was because the legal department had issued directives that police officers adhere to certain guidelines when conducting an operation or a trap. He advised van der Merwe that the bribe money was to be delivered that morning at the SARS offices (although Buys later expressed uncertainly as to whether he mentioned the SARS offices, but van der Merwe confirmed that the SARS office was mentioned to him), that he, Buys, would be in charge of the operation and that when the envelope with the money was collected he would arrest or confront the person involved. Van der Merwe gave Buys the go-ahead to proceed, but advised him inter alia that he was not allowed to entice anyone to commit an offence or a further offence.
Buys then set about making arrangements for the operation to be carried out. These included the following:
1. enlisting the services of Malusi’s driver to deliver the envelope at the SARS reception desk;
1. a member of Power’s staff to video the delivery of the envelope and the collection thereof by whoever came to collect it;
1. securing permission from Ms Perks, a member of the investigative personnel of SARS, for Buys and McIntyre to station themselves inside the SARS building before the delivery and collection of the envelope took place.
On arrival at the SARS offices Buys and McIntyre were shown by Ms Perks where the offices of Ms Fellows and the appellant were, on the first floor. (The latter office was in fact a communal office shared by the appellant and a number of fellow auditors). The two of them were allowed by Ms Perks to take up position in a storeroom, from which vantage point they had a view of the passage between the appellant’s office and the stairway leading down to the ground floor and the reception area.
Meanwhile Power and Mokoena remained in the former’s motor vehicle which was parked in the street outside the SARS building.
A further police officer, Insp Mbiko, was stationed in the reception area for the purpose of witnessing the delivery and collection of the envelope. An employee of Power with a video camera (disguised) was with him.
Ms Cousins was the SARS employee on duty at the reception desk on the morning in question. Prior to the delivery of the envelope the appellant had approached her at the reception desk to advise her that someone would come and drop off an envelope for either him or Ms Fellows.
Malusi’s driver duly entered the SARS building with the envelope, approached Ms Cousins and advised her that he had come to drop off an envelope for Ms Fellows. Ms Cousins requested him to wait and she telephoned the appellant to advise him that the envelope had arrived. The appellant came down to the reception area and Ms Cousins pointed out the man who was still holding the envelope. The appellant collected the envelope from the man and proceeded to walk up the stairs again.
Mbiko attempted to follow the appellant and called out to him to stop. Mbiko was, however, prevented from going up the stairs by members of SARS security personnel. (Mbiko was unable to say whether the appellant heard him when he called out to him to stop. Buys testified that he heard Mbiko calling out to the appellant from “basically directly behind him” but that it seemed as if the appellant did not pay much attention thereto).
The appellant went into the office of Ms Fellows and left the envelope there. On exiting from that office he was confronted by Buys and McIntyre. They retrieved the envelope from a table in Ms Fellows’s office. (I will return later in another context to consider the evidence of what warning was given by the police to the appellant and what permission to search was given by the appellant to them).
The appellant was searched and a silver cellphone was found in his possession. At Buys’s request the appellant took the police to his desk. A search there uncovered a blue cellphone in a partly opened drawer which was being charged. (I will return later to consider the nature of the search conducted at the desk).
The appellant was then requested to accompany the police to their offices at the Cambridge police station. Power also proceeded there. At those offices Buys telephoned the cellphone number from which the SMS’s had been sent. Neither the silver cellphone nor the blue cellphone of which the police had taken possession rang in answer to the call. The envelope was also opened at the offices and the money taken out. The appellant immediately claimed that the money did not belong to him and that he knew nothing about it. In the appellant’s presence the serial numbers of the relevant notes were checked against those on the photocopies which Buys had and it was confirmed that they corresponded.
Buys informed the appellant that he was not yet under arrest and that if he, Buys, did not find what he was looking for the appellant would be free to go. (Buys explained that he was looking for the cellphone from which the SMS’s were sent). Buys commented to McIntyre that he wanted to return to the appellant’s office to do what he referred to as a proper search for a cellphone or a SIM card from which the SMS’s originated. McIntyre and Power then left with the appellant while Buys stayed behind to talk to the appellant’s wife who had arrived at the office. He then followed the others to the SARS premises.
During a further search by McIntyre and Power of the appellant’s desk a brown-coloured cellphone was found. (I will return to this aspect again). Power observed that on the cellphone’s register of calls there were a number of missed calls recorded which had been made to the phone from Power’s cellphone. These calls had been made by him while he was en route back to the SARS offices with McIntyre and the appellant, and none of them had been answered. On Buys’s arrival the phone was handed to him. Confident that the phone was the one he was looking for Buys placed the appellant under arrest and warned him according to his rights. The party returned to the offices of the Organised Crime Unit. There Buys once again made a telephone call to the number from which the SMS’s had come. This time the brown cellphone rang. On going through the call register on both the brown cellphone and the silver cellphone Buys observed that on both phones a message relating to a person named Hongfu was stored. (The message on the silver phone was dated 15 October 2003). Asked for an explanation the appellant declined to offer an answer.
The cellphone referred to above as the brown cellphone, while predominantly brown, tended to an extent to change colour depending on the angle it was held in the light.

Aspects of the appellant’s evidence
The appellant testified as follows.
He was not involved in, and had no knowledge of, the SMS messages about which Mokoena testified.
On Thursday 16 October 2003 he was in his office when one of the landline telephones in the office rang. He answered the call. The caller, a black man, asked to speak to his manager, Ms Fellows. He advised the man that she was not at work and would only be returning to work the following Monday. The man stated that he had important business with Ms Fellows. On the appellant’s query as to what his VAT number was the man merely gave his name a few times, which he pronounced differently. The appellant wrote down what he heard. He offered to assist the man with whatever his query was. He was, however, told that the man had information for Ms Fellows. The appellant told him that he could bring the information in (which the appellant assumed was in documentary form) and he would ensure that it got to Ms Fellows. The man said that he would be there within 45 to 60 minutes.
The appellant had to go down to the reception desk to leave some documentation for collection by an accountant. He left the documentation with Ms Cousins and at the same time advised her that a man, whose name was either Ntula or Nkula, would be coming in. Ms Cousins undertook to telephone the appellant when the man arrived. About 45 to 60 minutes later Ms Cousins telephoned him to say that the man had arrived.
He went downstairs where Ms Cousins pointed the man out. He asked the man if he was Mr Ntula or Mr Nkula. The man nodded and handed him the envelope, exh 1. He took the envelope to the office of Ms Fellows and placed it on a table there. On leaving the office he was confronted by Buys and McIntyre.
The appellant further testified that there was nothing which prevented him from taking the envelope to his own car which was parked in the street outside.
He further stated that it was common practice for the auditors to talk amongst themselves about the contents of the various files which were being handled. He invoked this circumstance in support of his claim, referred to below, that he was the victim of a conspiracy and that the brown cellphone had been planted on his desk.

Disputes of fact
A number of factual disputes arose on the evidence.
The discussion thereof must be introduced by a reference to an attack by Mr Koekemoer, who appeared for the appellant, on the credibility of Buys and McIntyre, based on the contents of their police statements (in affidavit form), exhh J and K, both of which were dated 17 October 2003. The attack was a two-pronged one. First, it was contended that the two policemen had improperly commissioned each other’s affidavits in that both had been directly involved in the investigation. Second, counsel pointed to the fact that, save for necessary changes, the two statements were all but in identical terms, and even contained identical errors. In this regard the evidence of McIntyre was that Buys first prepared his own statement and thereupon prepared McIntyre’s statement based on what was contained in his own statement, which McIntyre thereafter signed. Buys, however, stated that McIntryre had sight of his, Buys’s, statement before signing his own statement.
Both criticisms were valid. The first criticism, however, does not require further comment in that it did not directly impinge on the reliability of the content of the statements.
As to the second criticism counsel referred us to two authorities. In S v Hayes en ‘n Ander 1998 (1) SASV 625 (O) the Court passed severe strictures on the conduct of police witnesses, who had been involved in a trap, in correlating and comparing their written witness statements, to ensure that their versions were identical. (They in fact put different dates on the statements to give the semblance that the statements had been made independently. The poor quality of their evidence during the trial underscored their mala fides). It was held that such conduct was not only scandalous and irreconcilable with a fair trial, but also amounted to an attempt to defeat the ends of justice. It was possibly in itself a sufficient ground for holding that the appellant’s right to a fair trial had been frustrated. On the strength of this authority counsel sought to persuade us that the appellant had not had a fair trial.
In S v Spies and Another 2000 (1) SACR 312 (SCA), also a matter involving a police trap, the criticism of similar conduct on the part of the police witnesses involved (ie correlating the contents of their respective statements) was more muted. Part of the headnote in this case reads as follows:

“As to the contention advanced on behalf of the appellants that their constitutional right to a fair trial had been breached and that the breach was so fundamental that their conviction should be set aside without reference to the merits of the case, the Court held that the fact that the statements of the State witnesses were identical and obviously the product of a collaborative effort, was known to the defence before any evidence had been led. Copies of both police docket and the departmental file were in possession of the defence at that stage and the appellant's counsel had been given an opportunity to study them. The fact that the witnesses had conferred together so as to eliminate discrepancies was brought out at the trial as well as the fact that the dates of the statements in the docket were incorrect. The conduct of the police in this matter, however undesirable or open to criticism it might have been, did not render it impossible for the appellants to have a fair trial; on the contrary, their trial had been fair and the magistrate was obliged on the evidence, in the absence of any contrary version put forward by the defence which gave rise to a reasonable possibility that the appellants were not guilty, to find [them] guilty as charged. The appeals against conviction were accordingly dismissed.”

In my judgment, the approach set out in Spies is mutatis mutandis of application in the instant matter. I would add, first, that no mala fides was attributed to Buys and McIntyre, and, second, that in fact the material facts deposed to by Buys and McIntyre, part of the resumé set out earlier, were either common cause or not in dispute. There can accordingly, in my view, be no talk of the appellant not having had a fair trial on the basis invoked by counsel.
The conduct of Buys and McIntyre in the matter of the preparation of their statements, is, however, a factor bearing on their credibility in respect of certain of the disputes of fact adverted to below.
The first series of disputes of fact to be resolved arise out of the appellant’s denial that the brown cellphone belonged to him or that he ever had possession thereof. His case was that the only two phones possessed by him were the silver and blue ones, never a brown one.
Buys testified that when, at the office of the Organised Crime Unit, he commented that a proper search of the appellant’s office for the cellphone or SIM card utilised to send the SMS’s should be undertaken, the appellant immediately commented that he would not be responsible for anything found on his desk as his desk had already been searched. McIntyre’s evidence was that such a comment was made to him by the appellant as they left to return to the appellant’s office for the second search to be done.
The appellant’s version was that he merely asked Buys why he wished to return to the appellant’s office when he had already searched his desk. Under cross-examination, however, he admitted that he had made the comment that he would not accept responsibility for anything found on his desk.
However, for reasons to be set out later the evidence in question must be ruled to have been inadmissible.
The nature of the first search conducted of the appellant’s desk is the subject of the second dispute of fact. The effect of the evidence of Buys and McIntyre was that the search was not a thorough one, rather a quick one which, while including opening the drawers of the desk but did not embrace a search of the top of the desk, was terminated when the blue cellphone was discovered in the one drawer of the desk. The appellant’s version was that the search was a thorough one. On that score the appellant’s evidence received only limited support from the testimony of the only other two occupants of the office on the day in question, namely Ms Lusizi and Ms Mhlaba, both fellow auditors of the appellant. The former, whose desk was some two metres away from that of the appellant, stated that the police “were searching all over, everywhere” and she confirmed that they opened the drawers of the desk. Ms Mhlaba’s desk was behind that of Ms Lusizi and about four metres from the appellant’s desk. When asked whether the police, when searching the appellant’s desk, went through the drawers she stated: “yes, everything on his desk, they were searching it , opening drawers.” She added that they were definitely lifting up the papers and files on the desk and looking underneath them.
At this stage it would be convenient to advert to the evidence of the nature of the second search and the finding of the brown cellphone. McIntyre and Power were the witnesses involved. The former alleged that the phone was found when he lifted a file on the desk. The latter testified that he lifted some paper, the size of A4, and the phone was observed underneath, and McIntyre took possession of it. Some point was sought to be made of the discrepancy between McIntyre’s reference to a file and that of Power to the A4 paper. The point had no substance.
It was the appellant’s case, as put to Ms Lusizi, that the brown phone was planted on his desk after the police took him away the first time. The one suggestion was that the police effected the planting. Ms Lusizi, who testified that on their return the police found the brown phone, responded to that suggestion that she did not know that. It needs only to be recorded that for obvious reasons the suggestion carries its own refutation. The other suggestion was that some other person had put the phone on the desk in the appellant’s absence and she was asked whether anyone had come into the office while the appellant was absent. Ms Lusizi firmly and repeatedly stated that no-one had come into the office, either during the period between the appellant’s earlier leaving the office on his own accord and the arrival of the police for the first time or during the time between the police leaving after the first search and their return to undertake the second search. Ms Mhlaba gave the same evidence. It may be noted that it was not suggested to either witness that she was a party to the alleged planting of the phone.
Ms Lusizi further pertinently stated that during the first search the police did not lift any papers or files on the desk, but stopped the search when the blue phone was found. In my view this evidence is preferable to that of Ms Mhlaba who was testifying nearly three years after the event without having the benefit of refreshing her memory from her police statement, which had gone missing, and who in any event was not asked to elucidate her statement that papers and files were lifted by the police during the first search.
It is apposite at this stage to record that the magistrate found that both Ms Lusizi and Ms Mhlaba (as well as Ms Makhalima, whose evidence is referred to below) were credible witnesses who had no axe to grind in the matter. A close reading of their evidence gives no reason for disquiet concerning the validity of the above finding by the magistrate.
On the above evidence, even if it stood on its own, the finding would be inescapable that the brown phone was indeed on the desk during the first search, hidden under files and/or paper, but was not discovered by the police because they terminated the search on finding the blue phone.
There was, however, further evidence. Ms Lusizi testified that the brown phone of which the police took possession was in the possession of the appellant earlier that morning and that she had observed him spending a great deal of time pressing the buttons on the phone (an aspect that also ties in with the State’s argument that the appellant was the author of the SMS’s that were sent to Mokoena during the course of the morning). The appellant’s counter was that what the witness would have observed was him doing calculations on the blue phone.
The evidence of Ms Makhalima proceeded as follows. She, too, was employed by SARS, East London as a VAT auditor, and occupied the same office as the appellant. She was, however, on study leave on 16 October 2003. On 27 October 2003 she was interviewed by Buys. He showed her some phones – she thought they were three in number – and she was asked if she recognised any of them. She identified two of the phones, a blue one and a brown one. The blue one was a camera phone and the appellant used it to take pictures of his colleagues in the office to show them how it worked. The brown one she had seen being used by the appellant when, on an earlier occasion, the two of them had been engaged on an audit in King William’s Town and Dimbaza. It was put to her that the appellant denied that he ever had a brown cellphone in his possession. However, she stuck to her guns.
It is so that no attempt was made by the State to link the brown phone that the witness said was shown to her to the brown phone found on the appellant’s desk (an inexplicable omission). Nevertheless, the evidence has the limited value of giving the lie to the appellant’s denial that he ever possessed a brown cellphone.
As indicated above the magistrate accepted the above evidence. I am not persuaded that he erred in reaching that conclusion.
That conclusion is further borne out by an examination of the improbabilities inherent in the appellant’s explanation. In this regard the magistrate expressed himself as follows:

“What is important in adjudicating whether this explanation of him is reasonably possibly true is the following: By necessary implication it would mean that.
This scenario in evaluating accused’s version as reasonably possibly true, is totally nonsensical and is rejected as false. Significantly when accused went down to collect the envelope from this person (ostensibly Mkula) whom accused said could only by appointment see one of the auditors, he did not speak a word to this man, according to Cousins. He merely collected the envelope and dashed off to Fellows’ office. In the light of this conclusion by the Court is not strange that he had offered two different explanations to Buys when asked the obvious question about the envelope with the money.”

It appears that the third point listed by the magistrate should rather have referred to Nkula’s delivery of the envelope to the SARS reception desk. Secondly, as will be explained below, the evidence relating to the two explanations offered by the appellant to Buys about the envelope should have been ruled to be inadmissible. I otherwise endorse the approach of the magistrate. What may be added is two further considerations adverted to during argument by Mr Henning, who appeared for the State, namely:

If one of the women in the office was the person who planted the phone, that would of necessity imply that other persons, including the other woman, were party to the conspiracy, which enhances the unreasonableness of the proposition;

Regard should also be had to the circumstantial evidence revealing that on three occasions when there had been either personal discussions between the appellant and Mokoena or a fax had been sent by the appellant to Mokoena, an SMS message followed thereafter which canvassed the very subject of the discussions or the fax. The probabilities are overwhelmingly against someone other than the appellant being the person responsible for the SMS’s.

The next dispute concerns an alleged conversation between Buys and the appellant in the vehicle while they were en route to the offices of the Organised Crime Unit for the first time. Buys testified that he enquired of the appellant whether he was prepared to answer one question, to which the appellant agreed. Buys thereupon asked him how he knew that there was an envelope to be collected at the bottom counter. At first the appellant hesitated and then said that he was going down from his office to make photostat copies of a document he had in his possession, and when he came to the front desk he saw a person standing in reception with a letter addressed for Ms Fellow’s attention and he took the envelope from the person saying that he would place it on her desk. (This explanation, so Buys testified, was strange in that when he observed the appellant walking to the stairs he had no documents in his possession, nor did he have any documents in his possession when he was confronted by Buys on coming out of the office of Ms Fellows). Shortly thereafter the appellant volunteered a different explanation: he had been asked by Ms Fellows, who was not at work that day, to attend to a counter query which would be coming in from a Mr Nkula.
On behalf of the appellant it was put to Buys that the first part of the conversation in the vehicle was along the lines Buys had said, but that the appellant had not given the explanation deposed to by Buys. Instead, the appellant had explained that Ms Cousins had telephoned him to say that there was an envelope at reception. The proposition was rejected by Buys.
However, in his own evidence the appellant, when asked by his counsel whether there was any discussion between him and either Buys or McIntyre in the vehicle en route to the police offices, merely responded that he asked them what this was all about and they said he would know in due course.
Again, the resolution of the dispute and what effect an acceptance of Buys’s evidence would have does not fall to be considered in that for reasons to be set out later the evidence must be ruled to have been inadmissible.
The final dispute of fact that requires consideration at this stage relates to alleged comments made by the appellant when the party first left the SARS offices. Buys testified that when they emerged from the building Power and Mokoena were seated in the former’s motor vehicle. The appellant enquired who that person was, referring to Mokoena. Buys pretended that he knew nothing. The appellant then remarked that: “Now I know what is happening”.
During cross-examination it was put to Buys that Power was not in the motor vehicle but at the entrance of the building, that Buys in fact spoke to him and Power thereafter went to board his vehicle where Mokoena was seated. Buys, conceding uncertainty, stated that the propositions may be correct. It was then put that when the appellant asked who that person is the reference was to Power. Buys responded that he gained the impression that Mokoena was the subject of the query, otherwise he might have told the appellant that Power was a private investigator. While conceding that it was possible that the appellant was referring to Power, Buys commented that he then found it strange that the appellant made the comment referred to above.
In his own evidence the appellant reiterated the propositions put on his behalf. He added that he had overheard Power saying that he could edit the video taken as the police wanted. He therefore linked Power to Mokoena. He did not, however, seek further to explain his comment that he knew what it was all about. Under cross-examination he merely added that he thought Power was involved in the whole matter because he thought he was a policeman and he was together with Mokoena.
The magistrate’s comment was that the appellant’s reference to Power made no sense, what connection Power and Mokoena could have had for him to utter the words in question was totally incomprehensible.
Again, on the same basis as applies to the alleged statements referred to earlier, the evidence must be ruled to be inadmissible. For the sake of completeness I would add the following. I am not persuaded that this aspect would have been something that weighs against the appellant. In my view Buys’s impression that the appellant was referring to Mokoena was misplaced. The latter was in fact known to the appellant, and Buys was aware of that fact. The appellant must therefore have been referring to Power when he asked who that man was. However, it was not put to Power that the appellant had overheard him speaking to the police about editing the video recording. Be that as it may. As stated above the reference must have been to Power, but in the absence of elucidation it would be mere speculation what interpretation should be placed on the appellant’s remark.
Mr Koekemoer launched a further wide-ranging attack on what may briefly be referred to as the fairness of the trial. It is that question that I now turn to address. Although in what follows I compartmentalise the issues canvassed by counsel I do not lose sight of his submission that the totality of the circumstances invoked should be looked at.

Section 252A of Act 51 of 1977
As is pointed out in Hiemstra’s Criminal Procedure, at 24-117 et seq, moral and jurisprudential problems associated with the use of traps in the fight against crime arise out of a tension between the need to prevent and combat crime, on the one hand, and the requirements of the legal order on the other. S v de Bruyn 1992 (2) SACR 574 (Nm) at 579f; Key v Attorney-General, Cape Provincial Division and Another [1996] ZACC 25; 1996 (2) SACR 113 (CC) para [13].
Sometimes the trap creates the opportunity for someone who, but for the trap, would not have committed the crime to do so. In S v Malinga and Others 1963(1) SA 692 (A) at 693F-G the following passage appears:

“[A] trap is a person who, with a view to securing the conviction of another, proposes certain criminal conduct to him, and himself ostensibly takes part therein. In other words he creates the occasion for someone else to commit the offence.”
In other situations the “trap” merely creates such an opportunity for someone who wanted to commit the particular offence – and would have done so, even without the trap’s influence. Such a case was S v Dube 2000 (1) SACR 53 (N). The accused in that case had long been part of a furtive syndicate which stole from a motor car manufacturer; the trap made contact with the syndicate and planned and concluded the incriminating transaction in consultation with the accused. There was no question of inducement by the police to commit a crime but rather an innocent victim attempting to protect its property by finding out who was responsible for large scale thefts at its industrial plant after efforts of its security personnel had been unsuccessful.
There is yet a third category, namely where the accused is himself or herself the initiator of the incriminating transaction and instigates the “trap” to conclude the transaction with him or her and the trap merely ostensibly participates therein, and in that sense creates the opportunity for the commission of the crime. A fortiori the accused in such a case commits the crime without any influence from the trap.
(a) S 252A (1) provides as follows:

“(1) Any law enforcement officer, official of the State or any other person authorised thereto 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 an 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).”

Subsection (2) provides that the court shall have regard to a series of tabulated factors, where applicable, in considering the question whether the conduct in question went beyond providing an opportunity to commit an offence.

Subsection (3) provides that where in the setting of the trap or the engaging in the undercover operation the conduct went beyond providing an opportunity to commit an offence the court may, again having regard to a series of tabulated factors, where applicable, refuse to allow evidence relating to the trap or operation 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.

S 252A (1) requires an assessment of the nature of the operation and the conduct of the trap or undercover agent, not of the fairness or unfairness thereof. The judgment in S v Odugo 2001 (1) SACR 560 (W) contains the following paragraphs.

[33] The ordinary meaning of the phrase 'the conduct goes beyond providing an opportunity to commit an offence' suggests that the court should consider the role that the law enforcement officer played in the committing of the offence. If the law enforcement officer played an active role in inducing or persuading the accused to commit the offence, it seems that a finding that the conduct went beyond providing an opportunity to commit an offence is inevitable. On the other hand, if the perpetrators of the offence were using the law enforcement officer as their instrument in the crime which they were planning to commit, it clearly does not constitute conduct that goes beyond providing an opportunity to commit an offence.

[34] Du Toit et al suggest the following approach at 24-134:

'Perhaps, at the end of the day, one can do no better than this: the conduct of the trap will be regarded as not going ''beyond providing an opportunity to commit an offence'' if, in all the circumstances, there is not doubt that it was fair and unobjectionable, so that it is not necessary to consider the factors listed in subsection 3(b) in order to determine whether it would render the trial unfair or would otherwise be detrimental to the administration of justice to receive the evidence in terms of subsection (3)(a) . If there is sufficient cause to question whether the conduct was fair and objectionable, so that it becomes necessary to consider those factors, it will be regarded as going beyond providing an opportunity to commit an offence.'

[35]Although this approach would be commendable in terms of the

constitutional imperatives that will be dealt with later, this approach begs the question. Section 252A(1) requires an assessment of the nature of the operation and the conduct of the trap or undercover agent, and not the fairness or unfairness thereof.

In casu it is clear that the conduct of the police, in conjunction with Mokoena and the other persons who participated in the relevant conduct, did not fall within either of the situations referred to in paras [75] and [76] above; rather it fell within the situation referred to in para [77] above.
It is also clear that, regard being had to whichever of the factors referred to in s 252A(2) as may be applicable, including, as counsel sought to emphasise, the circumstance that the conduct of the police might not have been strictly in accordance with the letter of the guidelines set by the police authorities themselves, the conduct did not go beyond providing an opportunity to commit an offence. Indeed, during the course of his argument counsel, correctly, accepted and conceded as much.
Accordingly, s 252A(3) was not of application in respect of the evidence in question.

Section 35(5) of the Constitution
This section provides as follows:

“Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice”.
As to the import and application of this section it will suffice to refer again to para [13] of Key which also contains the following passage:

“What the Constitution demands is that the accused be given a fair trial. Ultimately, as was held in Ferreira v Levin, fairness is an issue which has to be decided upon the facts of each case, and the trial Judge is the person best placed to make that decision. At times fairness might require that evidence unconstitutionally obtained be excluded. But there will also be times when fairness will require that evidence, albeit obtained unconstitutionally, nevertheless be admitted.”
S 35 of the Constitution (part of the Bill of Rights) includes the following provisions:

“(1) Everyone who is arrested for allegedly committing an offence has the right –
1. to remain silent;
2. to be informed promptly –
………………
………………
1. to choose, and to consult with, a legal practitioner, and to be informed of this right promptly;
………………

Every accused person has a right to a fair trial, which includes the right –

………………

to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;

………………”

S 14 (also part of the Bill of Rights) provides as follows:

“Everyone has the right to privacy, which includes the right not to have –
1. their person or home searched;
2. their property searched;
3. their possessions seized; or
………………
The relevant evidence, on which Buys and the appellant were in agreement, reflects the following:
(a) When Buys and McIntyre confronted the appellant as he came out of the office of Ms Fellows, Buys introduced himself and McIntyre to the appellant, and the appellant accordingly knew that they were police officers;

Buys informed the appellant that they were investigating a case of corruption in which he, the appellant, might be implicated.
Buys further warned the appellant that he had the right to remain silent and that he was not obliged to say anything if he did not wish to;

Buys did not, however, say to the appellant that if he did say anything it could be used in evidence against him; in other words he did not explain the consequences of not remaining silent;

Buys further advised the appellant that if at a later stage he were to be arrested he could engage the services (“get hold of”) an attorney; he did not advise him that he was entitled to an attorney from the outset; in fact he intimated to the appellant that he was not entitled to an attorney at that stage.

The appellant was advised that the police wished to search him; the appellant agreed thereto. (While McIntyre testified that the appellant was asked for permission to search him, and under cross-examination the appellant initially also gave such evidence and added that he gave such permission, he immediately thereafter corrected himself and stated that the police said that they were going to search him and he gave permission for that to be done);

The appellant was not told that he could refuse to be searched;

The appellant was not expressly asked for permission for his desk to be searched nor did he expressly consent thereto; nor was he told that he could refuse that his desk be searched or that anything found in the search could be used in evidence against him.

Buys testified that when he confronted the appellant the latter was regarded as a suspect in the commission of the crime of corruption. This statement was clearly correct.
The first question that arises is whether someone who is neither an arrested nor detained nor accused person, but merely a suspect has the s 35 rights referred to earlier and, if not, what pre-trial rights a suspect does have in respect of the aspects which are the subject of those rights.
There are authorities which have adopted the line that the constitutional pre-trial rights accorded to arrested, detained and accused persons are to be extended so as to be applicable to suspects as well. See eg S v Sebejan and Others 1997 (1) SACR 626 (W) (1997 (8) BCLR 1086 (W)) (per Satchwell J);S v Orrie and Another 2005 (1) SACR 63 (C) (per Bozalek J).
There are, on the other hand, authorities that have taken the line that the relevant provisions of s 35 of the Constitution are not applicable to suspects, notably S v Mthethwa 2004 (1) SACR 449 (E). The judgment in this case was a two-judge decision (Pickering and Sangoni JJ) and is accordingly binding on this Court unless, on the basis that we are convinced it was wrong, we are disposed not to follow it. At 453d – h my brother Pickering is reported as follows:

“It is important, in my view, to bear in mind in this regard that at the time he was questioned appellant was neither an arrested nor an accused person. In these circumstances, the provisions of s 35 of the Constitution, Act no 108 of 1996, which deal with the rights of “everyone who is arrested for allegedly committing an offence” (s 35 (1)); “everyone who is detained” (s 35 (2)); and “every accused person” (s 35 (3)), are not, in my view, of relevance, despite what was stated by Satchwell J in S v Sebejan and Others (supra), where the learned Judge held that a suspect who becomes an accused is entitled to fair pre-trial procedures which include the rights under s 25 (3) of the Interim Constitution Act 200 of 1993 accruing to an accused when arrested. (The rights included under s 25 (3) of the Interim Constitution correspond largely to those included under s 35 of the present Constitution).

In S v Ndlovu 1997 (12) BCLR 1785 (N), however, Magid J, with whom Nicholson J concurred, held that those sections of the Interim Constitution which deal with the rights of both an accused and a detained person were of no relevance as at the time the appellant in that matter made the statement in issue he had not been arrested or detained.

Similarly in S v Van Der Merwe (supra) Gihwala AJ stated that he could find nothing in the Interim Constitution which placed an obligation on the police to warn a suspect of his various rights under the Constitution.

In my view the decisions in S v Ndlovu (supra) and S v Van Der Merwe (supra) are, with respect, correct.”

I am not persuaded that this approach is wrong. It is accordingly binding on this Court.

However, as was stated in Mthethwa at 453h, that is not the end of the matter. Indeed, the same result as would follow on an application of the s 35 rights referred to earlier would be achieved by another route. That route would accord a suspect the “fair-trial procedures” referred to in Sebejan and endorsed in Orrie, which embrace

“the right to remain silent and the right to be informed of the right to remain

silent; the right to be informed of the consequences of making any statement; the right to choose and to consult with a legal practitioner and to be informed of this right promptly”.
The route in question is an application of the rights of a suspect in terms of the Judges’ Rules. In this regard the judgment in Mthethwa, at 454b – g, continues as follows:

“Judges’ Rule 2 provides:

‘Questions may be put to a person who is under suspicion where it is possible that the person by his answers may afford information which may tend to establish his innocence. In such a case cautions should first be administered.’

Satchwell J then stated at 632h

‘In short, non-suspects may be questioned without any cautions or warnings whereas suspects, even in circumstances where answers to questions may establish innocence, should receive the benefit of the caution or warning. The suspect is treated differently and entitled to certain protective cautions not afforded to a mere witness.'

With regard to this passage Magid J in S v Ndlovu (supra) referred at 1791h-j to the fact that the Appellate Division has in the past held that the Judges' Rules are merely administrative in nature and do not have the force of law. With reference to R v Holtzhausen 1947 (1) SA 567 (A) and R v Kuzwayo 1949 (3) SA 761 (A) he stated that

'it was held that compliance or otherwise with the Judges' Rules was relevant only to determine whether the statement elicited from the accused was made freely and voluntarily. That, held the Court, was a matter of fact the determination of which depended on all the circumstances, including whether the Judges' Rules had been complied with. Even in the climate of a culture of human rights which we now enjoy, I am not convinced that this line of authority is wrong. . . .'

In S v Van der Merwe (supra), however, Gihwala AJ having found, as I have stated above, that the provisions of the interim Constitution were not applicable to the matter, stated as follows at 200a - b :

'Wanneer 'n persoon volgens Regtersreëls gewaarsku word, word daar inderdaad in my siening uiting gegee aan die bepalings van die Grondwet want die aard en omvang van daardie Regtersreëls sal lei tot die behoorlike beskerming van die gearresteerde en/of beskuldigde se regte.'

I respectfully align myself with the reasoning of Gihwala AJ in this regard.”

(By reason thereof that the appellant, Mthethwa, who was a suspect, had not been given the required warning prior to the police soliciting from him the incriminating statement in question, the evidence of the statement was ruled inadmissible on the basis that its admission would render the trial unfair and bring the administration of justice into disrepute. Without such evidence the guilt of the appellant was not proved beyond reasonable doubt. The appellant’s appeal against his conviction was accordingly upheld).

The right not to be searched or have one’s property searched enshrined in s 14 of the Constitution is subject to the limitations provided for in ss 20 – 22 of Act 51 of 1977. The limitations are justified in terms of s 36 of the Constitution.

Admissibility of the statements made by the appellant to Buys
Two aspects arise:
1. the failure of Buys to warn the appellant of the consequences of his not remaining silent, ie that anything he said may be used in evidence against him;
1. the failure of Buys to advise the appellant that he was forthwith entitled to engage the services of an attorney and instead to advise him that should he later be arrested he could engage the services of an attorney at that stage.
The appellant did not seek to testify that he did not in fact know that anything he said could later be used in evidence against him and that had he been aware thereof he would not have said anything. It may possibly be argued that when a policeman advises a person that he is investigating an alleged crime of corruption in which that person may be implicated (thereby conveying to him that he is a suspect) and warns him that he has the right to remain silent and is not obliged to say anything, it is impliedly conveying to the person that if he does say anything it may be used against him. It is, however, unnecessary to make any positive finding on that score. The fact that the appellant was not expressly advised of the consequences of not remaining silent remains a factor to be thrown into the melting pot.
More important is the aspect relating to legal representation. This judgment does not require to be burdened with a reference to authority emphasising the importance of the right to legal representation.
The appellant testified that had he known that he had the right to legal representation he would immediately have engaged the services of an attorney. The magistrate dismissed this averment on the basis that the stance had been adopted ex post facto. It is to be noted that the appellant was not challenged by the prosecutor on the statement. The magistrate’s judgment does not reveal on what grounds he found that the appellant’s statement was an afterthought. I am not persuaded that the appellant’s averment fell to be rejected.
What is the effect of an effective denial of the right to legal representation? It is readily to be anticipated that an attorney would have advised the appellant not to say anything and not to answer any questions (certainly until he had taken full instructions on the matter, and then only while he or she was present, and that that advice would have been accepted). At the very least, that scenario cannot be safely excluded.
It follows inevitably that admission of the evidence of the statements would have resulted in an unfair trial and would bring the administration of justice into disrepute. The evidence of the statements is accordingly ruled inadmissible.

The search and recovery of the brown cellphone
The following preliminary comments fall to be made.

(a) S 22 of Act 51 of 1977 provides that a police official may without a search warrant search any person or container or premises for the purpose of seizing any article referred to in s 20 (ie, insofar as is relevant, an article which is concerned in or is on reasonable grounds believed to be concerned in the commission or suspected commission of an offence, or which may afford evidence of the commission or suspected commission of an offence) if the person consents to the search and seizure of the article in question.

The brown cellphone and the SIM card it contained were such articles.

It is implicit on Buys’s evidence that he believed that the phone might be on the appellant’s desk (see the comments earlier on the nature of the first search and Buys’s instruction to McIntyre to return to search the desk again). Such belief was reasonable in the circumstances.

The appellant consented to the initial search of his person. Thereafter, at Buys’s request, he took him to show him where his desk was. The obvious purpose was to search the desk. Counsel correctly conceded that in the circumstances the appellant’s consent for his person to be searched extended to the search of his desk.

The consent also extended to the second search of the desk. Certainly, there is no evidence that the appellant objected thereto and there was at least implied consent.

The circumstance that the appellant was not advised that he could object to any search or that any article seized during the search could be used in evidence against him is neither here nor there. As regards the second aspect it need merely be commented that it was obvious that if anything incriminating was found it would constitute evidence against him and would be used as such. As regards the first aspect, counsel did not point to any provision requiring the police to advise a subject that it was open to him to refuse to allow a search to be undertaken. (It may be recorded that even if the appellant had refused consent for the desk to be searched, the ultimate result, the retrieval of the cellphone, would, for the reasons stated below, still have followed).

The issue of legal representation is relevant here as well. Had an attorney been engaged by the appellant he would have adopted one of two courses: after consultation with the appellant he would have advised him to consent to the search or he would have insisted on Buys obtaining a search warrant. In the latter event Buys would have adopted one of two courses. He would either have invoked s 22(b) and proceeded with the search and seizure on the basis that he had reasonable grounds to believe that a search warrant would be issued to him under s 21(1)(a) should he apply therefor and that the delay in obtaining the warrant would defeat the object of the search. Alternatively, he would have taken steps to secure the appellant’s desk pending his return with the search warrant. The retrieval of the cellphone would have been the inevitable result.
I would record that in any event I would, in weighing up the competing considerations (as to which see eg S v Hena and Another 2006 (2) SACR 33 (SE)) have concluded that the admission of the evidence of the finding of the brown cellphone did not result in an unfair trial or bring the administration of justice into disrepute.
I accordingly conclude that the evidence in question was correctly admitted.

Assessment
Two points invoked on behalf of the appellant require to be disposed of. The fact that the appellant did not remove the envelope to his motor car outside the building is of no assistance to him. He did not receive the envelope from Mokoena. The risks attendant on such a course being adopted by him are obvious. Similarly, the fact that he took the envelope to Ms Fellows’s office is neither here nor there. She was not present on the day in question and there may have been a number of reasons why he would have preferred not to take the envelope to his office where it was likely to be observed in his possession, but rather to retrieve it later from Ms Fellows’ office at a convenient time.
The admissible evidence detailed earlier in this judgment constituted damning evidence against the appellant and established his guilt beyond reasonable doubt.
The appeal against the conviction must accordingly fail.

Sentence
This Court can only interfere with the discretionary sentence imposed by the magistrate if it is vitiated by misdirection or if it is in all the circumstances startlingly inappropriate (or, as it is sometimes put, if it creates a sense of shock). A reading of the magistrate’s judgment compels the conclusion that neither of these tests fall to be answered in favour of the appellant.
The appeal against the sentence must accordingly fail.

Order
The appeal is dismissed.

____________

F KROON

Judge of the High Court

PICKERING J:

I agree

____________

J D PICKERING

Judge of the High Court

For Appellant: J R Koekemoer, instructed by Neville Borman & Botha

For Respondent: N Henning, instructed by the DPP, Grahamstown.