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IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

CASE N0: 2006/296

In the matter between:

THE STATE

And

KGANTSI, PORTIA REFILOE

________________________________________________________________

JUDGMENT

GOLDSTEIN J:

[1] The accused was charged with twelve counts, and one of these, count 7, was not proceeded with by the State. At the end of the State’s case she was acquitted on counts 2 and 3 and these need no further attention. Count 1 alleges fraud. Counts 4 to 6, and 8 to 10 each allege contraventions of sections 9 (1) (a) (i) (aa), read with various other sections of the Prevention and Combating of Corrupt Activities Act, 12 of 2004, and in the case of counts 8–10, further read with section 51 (2) of Act 105 of 1997.

[2] In count 11 she is alleged to have committed the crime of extortion, and count 12 alleges the contravention of section 60 (11B) (d) (ii) read with section 60 (11B)(a)(i) of Act 51 of 1977, that is, the furnishing of the court with false information during an application for bail.

[3] In count 1 it is alleged that, on or about 4 July 2000, she misrepresented to the National Prosecuting Authority and /or the Directorate of Special Operations (“the DSO”) that she had no previous convictions, for the purpose of obtaining a security clearance, and that she did so unlawfully and with the intent to defraud, whereas at the time she knew that she had a previous conviction, and thus caused prejudice or potential prejudice to the National Prosecuting Authority and /or the DSO.

[4] In counts 4 – 6 and 8 –10 the accused is alleged to have acted at or near Sandton “as a member of the National Prosecuting Authority, to wit, the Directorate of Special Operations” unlawfully and intentionally, directly or indirectly, in accepting or agreeing to accept or offering to accept a gratification from Oreyein John Afolabi and/or Dijbril Isaac Mohamedou, whether for the benefit of herself and/or another person, in order for her to act personally, or by influencing another so to act, in a manner that amounts to being illegal and /or dishonest and /or unauthorised.

[5] In count 4 the crime is alleged to have been committed on or about 19 August 2006, and the amount involved is R10 000 in cash, and it is alleged that what occurred was designed to achieve the unjustified result of offering to assist to have the passports of Afolabi and Mohamedou validated by the Department of Home Affairs.

[6] In count 5 the crime is alleged to have been committed on or about 26 August 2006, and the amount involved is R3000 in cash, and the purpose is said to have been to defray the accused’s travelling expenses to enable her to visit Afolabi and Mohamedou at the Sandton Police Cells, which visits are alleged to have been unauthorised.

[7] In count 6 the crime is alleged to have occurred on or about 4 September 2006, and the accused is alleged to have accepted the use of a vehicle, of which the rental was R6000, from Afolabi and Mohamedou, and the purpose was to enable her to travel to visit Afolabi and Mohamedou at the Sandton Police cells, which visits were unauthorised.

[8] The date of the crime alleged in count 8 is on or about 21 September 2006, and the gratification the amount of R30 000, to achieve the unjustified result of preventing the Asset Forfeiture Unit (“AFU”)from attaching the assets of Afolabi and/or of Mohamedou.

[9] The date of the crime alleged in count 9 is on or about 21 September 2006, and the amount of the gratification R315 000, which is alleged to have been for the benefit of the accused or her husband David Molefi Moepi, and this was designed to achieve the unjustified result of her applying to court on 2 October 2006 to have the case against Afolabi and Mohamedou struck off the roll, and/or to withdraw charges against them.

[10] In count 10 the date alleged is on or about 22 September 2006, and the amount R10 000, which was designed to achieve the unjustified result of showing the appreciation of Afolabi and Mohamedou to the allocated prosecutor and/or investigator, who allowed the accused to take over the prosecution against Afolabi and Mohamedou.

[11] In count 11 the accused is alleged, on or about 23 September 2006, to have induced, or subjected to pressure, or inspired fear in Afolabi and Mohamedou by threatening that she would ensure that they serve a prison sentence of at least 15 years, unless they paid her R40 000, and that, by means of the threat, she obtained the amount of R40 000 in cash.

[12] In count 12 it is alleged that, on or about 9 October 2006 and in Randburg, she unlawfully and intentionally furnished false information to the court during her bail application, namely, that she had not previously been convicted.

[13] She pleaded not guilty to all the counts. Counts 1 and 12 are closely related and unrelated to the remaining counts which, save for count 11, concern corruption.

[14] It is convenient to deal with the remaining counts first and at this stage to quote the relevant portions of section 9 of Act 12 of 2004:

“Offences in respect of corrupt activities relating to members of prosecuting authority. –(1) Any—

(a) member of the prosecuting authority who, directly or indirectly, accepts or agrees or offers to accept any gratification from any other person, whether for the benefit or herself or for the benefit of another person;

….

in order to act, personally or by influencing another person so to act, in a manner–

(i) that amounts to the–

(aa) illegal, dishonest, unauthorized, incomplete, or biased;

….

exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation;

…. (or is)

(iii) designed to achieve an unjustified result;

….

is guilty of the offence of corrupt activities relating to the prosecuting authority.

(2) Without derogating from the generality of section 2(4), “to act” in subsection (1) includes–

(a) performing or not adequately performing a function relating to the—

(i) institution or conducting of criminal proceedings;

(ii) carrying out any necessary functions incidental to the institution or conducting of such criminal proceedings; or

(iii) continuation or discontinuation of criminal proceedings;

(b) delaying, hindering or preventing the performance of a prosecutorial function;

(c) aiding or assisting any particular person in the performance of a function relating to the institution or conducting of criminal proceedings;

(d) showing any favour or disfavour to any person in the performance of a function relating to the institution or conducting of criminal proceedings; or

(e) exerting any improper influence over the decision making of any person, including another member of the prosecution authority or a judicial officer, performing his or her official functions.”

Section 9 appears in Chapter 2 of the Act 12 of 2004, which chapter is headed “Offences in respect of Corrupt Activities”.

[15] Counts 4-6 and 8-11 all concern the two men, Afolabi and Mohamedou, who were arrested on 17 August 2006 at their respective homes in Johannesburg, and thereafter kept in custody at the Sandton Police Station. Afolabi died in custody on 25 November 2006, and I admitted in evidence an affidavit signed by him, and Mohamedou gave lengthy evidence, for the State before us. I shall refer to them collectively as “the prisoners.” The accused also gave lengthy evidence. In recounting the evidence I often use the witnesses’ own words.

[16] On counts 4 – 6 and 8 – 11 the State’s case was essentially as follows. The accused offered on 19 August to have an invalid passport in the name of Afolabi regularised at the Department of Home Affairs. She later obtained R9000 from Afolabi for the official who was to do the validation necessary. This transaction forms the basis for Count 4. She thereafter gave the prisoners advice on the pending criminal case and saw them regularly at the Sandton Police Station. At one stage, she said she could not visit them because she had no money for fuel, and the result of this was that Afolabi gave her R3000 in cash. Count 5 relates to this event. Thereafter, she informed Afolabi that her car had burned out. As a result, Mohamedou arranged for her to use a Polo Volkswagen vehicle hired from an entity referred to as Europcar for R6000 per month, which amount Afolabi paid. The transaction concerned forms the subject matter of count 6. Thereafter, the accused informed them that AFU was bringing an urgent application for Afolabi’s property to be forfeited, and that they needed to produce R30,000 to prevent this from happening. These allegations formed the basis for count 8. The accused, at a stage, informed the prisoners that she had arranged with Provina Rughoonandan the prosecutor appointed in their case and the investigating officer concerned, for herself, the accused, to take over the prosecution, and that they had demanded R10000 for so agreeing. These allegations gave rise to Count 10. The accused informed them that she had reduced the fine they would have to pay to R315 000, and that the amount of the fine must be paid into a bank account of one David Molefe Moepi, who she said was a colleague. The payment was to be a quid pro quo for the withdrawal of the case against the prisoners, and it gave rise to count 9. On 28 September 2006 the accused received R40000 in cash from Afolabi. This money was the quid pro quo for the favours provided by the accused, and covered by counts 8 and 10, and the threats which allegedly induced it gave rise to count 11.

[17] Mohamedou testified that he came to South Africa in 1996 from Nigeria, having been born in Benin. He was arrested on 17 August 2006 by members of the DSO. He eventually entered into a plea agreement with the State, and was now serving a sentence at the Leeuwkop Prison for fraud. His arrest occurred at his residence and he was taken to the Morningside Police Station around 11h00, after his house had been searched. Afolabi was brought to the police station at about 16h00. He had known Afolabi for almost 6 years and they were like brothers. He saw the investigating officer Ursula on Friday morning 18 August. She ordered that he and Afolabi be kept in separate cells. She said that the reason why he was arrested was that she believed he was working for Afolabi and that he was staying in the country longer than was permissible.

[18] On Saturday morning 19 August 2006, the accused came to the police station and spoke to Afolabi there in a waiting cell. Afolabi thereafter introduced the accused and Mohamedou to one another. She said that she was a senior prosecutor of the Scorpions who led the team to Afolabi’s house, and that she was just passing by to see how he was coping with the situation and to speak of the gravity of the case. She said Afolabi was charged with four counts of money laundering and fraud, and she asked Afolabi if she could talk in front of Mohamedou. She said that the damage of the case was that two Malawian passports had been found in Afolabi’s office. Afolabi asked her what they could do about it, and she said that she had a contact in Home Affairs, and would revert and tell them what this man said. Before that Afolabi told her that he used “that passport” in order to get a telephone line at Telkom, and that it was no longer active. They spoke English. She said even though it was not active they had found it in his office, and that there were two different passports. Mohamedou interrupted himself to explain to the Court that one was in Afolabi’s name and the other in a different name. She would see, she said, the fellow in Home Affairs about validating the one in Afolabi’s name and she left.

[19] About two hours later she returned and said that the man at Home Affairs was willing to help, but asked what Afolabi was going to offer as his appreciation. Mohamedou and Afolabi spoke to each other in Yuruba discussing how much they could offer the man. Mohamedou said that he did not know and that Afolabi must decide and Afolabi told her that he could afford R7000. She said that he must go ahead and organise the money and she then left, saying she would return.

[20] Afolabi made a call in a phone booth in the cells, and asked a friend to come up with R10 000. After about an hour Afolabi was taken out of his cell to the cell-commander’s office and after about ten minutes returned to his cell which was opposite Mohamedou’s cell. Afolabi told him that he had R10 000 and he saw it.

[21] About an hour later the accused returned and Afolabi counted out R7000 and gave it to her. She said that she was going to see the man at Home Affairs and she gave Afolabi and Mohamedou her contact number to call her after about an hour. The number began with 073.

[22] About two to three hours later visitors brought food for them, and the police then called them out of their cells. Mohamedou requested Afolabi to telephone the accused to ask her about the passport. He did so from the phone booth and asked about the passport. He heard Afolabi say that they could not afford that, and that they only had R2000 left, and that she could come and collect it. After Afolabi had put down the phone Mohamedou asked him what the accused had said, and Afolabi told him that she said that the man at Home Affairs had considered R7000 an insult considering the risk and said that they should at least come up with R10 000. It was true that he only had R2000 left since Mohamedou had given R1000 to a visitor to get him a cellphone.

[23] About an hour later a policeman came and called Afolabi from his cell saying that the Senior Advocate was there. Mohamedou was praying then. About ten or fifteen minutes later Afolabi returned, and told Mohamedou that he had given her R2000. The amount of R7000 was paid over in the prisoners’ visiting room.

[24] On Tuesday 22 August he saw the accused again at the Sandton Police Station. They were taken to the consultation room numbered 4 on page 40 of Exhibit E, he thinks, and she was already there. The police knew her and when she came the police would call them out. They sat together and she was giving them advice as to what to say, and how they could go on with their case. The case had been remanded. This had occurred on Monday 21 August in the Wynberg Court. She asked who their attorney was, and how good he was, and how did they know him. They told her that Afolabi’s friend had referred them to him, and she asked them to tell him to go and meet the Scorpion team in Pretoria. When their attorney (Mogoeng) came, they conveyed this advice to him and he made an appointment to see Paul Louw of the Scorpions.

[25] At 14h00 on the day of the appointment the accused telephoned and spoke to Afolabi, in the presence of Mohamedou and told him of the outcome of the meeting: that Afolabi was to be charged with 4 cases involving fraud and money laundering and he (Mohamedou) and a third accused with being illegal immigrants, and that they were charging Afolabi “under the prevention of organised crime.” The third accused, one Moyo, had been arrested in Afolabi’s office; he was a gardener. The accused said that she would come over and tell them what to do. Before she arrived Mogoeng arrived, and told them what she had said. Afolabi told Mogoeng that they would tell him the next day what to do further.

[26] At about 3 to 4 pm that day the accused arrived. She normally came in the afternoons. They were taken out of their cells to see her. She said the only advice she could give them was to attempt a plea-bargain.

[27] The next day Mogoeng arrived in the morning and they told him that they were going to plea-bargain, and he made a call there to organise another meeting with the Scorpion team in order to plea–bargain. Before he reverted to them, the accused called them on a cellphone. Sometimes she called them on the telephone in the police station. The cellphone was kept in a safe. Sometimes Afolabi spoke to her on a cellphone and sometimes on the other phone. She would call on the cellphone about anything concerning the case. If she called on a landline at the station she would say that that she would call later on the cellphone. She informed Afolabi of the outcome of the meeting, which was that Afolabi was to be fined R 700 000, and that Mohamedou and Moyo had to be deported. Sometimes Mohamedou put the phone to his ear. Mohamedou disagreed with this, saying that he still had a valid work permit. Afolabi thereupon asked the accused to visit them and she said that she would come late.

[28] After an hour or some hours Mogoeng arrived and told them exactly what she had said. After he left she returned and advised that Mogoeng should “break” Afolabi’s case into two, so that it would become a normal fraud case and therefore the fine would come down; if there were four cases, they would be dealt with under the organised crime act. They called Mogoeng over the next day, and explained to him exactly what the accused had told them. As a result of this meeting Mogoeng returned to the Scorpions to try to negotiate three of the cases being allocated to Afolabi and one to Mohamedou. Before Mogoeng reverted to them, the accused telephoned on her cellphone, and said that the fine was down to R415 000 for Afolabi, and R20 000 for Mohamedou, and that they were going to be deported.

[29] They contacted her regularly. Only twice was there a period of two days which passed without any contact with her. She came regularly, sometimes twice a day. Then she said she could not come because she did not have fuel in her car. Afolabi asked her to come the next day and he said that he would organise something for her. She came the next day on a date Mohamedou cannot recall. It was a week day. They sat in consultation room 5 because the other rooms were busy. This is a room where the police kept handcuffs. There were cameras. He, she and Afolabi sat there. Afolabi gave her R3000 and she left. She had said she had a problem with fuel and had not come for two days. Afolabi had asked Mohamedou to call someone to whom he referred as a brother to bring the money. That person brought it early in the morning after Mohamedou had called him and after she said she had no money for fuel. After that she came regularly every afternoon. The police knew her there.

[30] So they pursued a plea-bargain. Afolabi’s fine was brought down to R415000, but they asked Mogoeng to negotiate it lower, because they could not afford that figure. When they went to court the accused would tell them what was to happen. She was a demi–god to them. She was supposed to come on a Friday and did not arrive; neither did she arrive on the Saturday, or the Sunday. They called her on the Monday. She said that she had a problem with her car which had burned out. She spoke to Afolabi in Mohamedou’s presence. At that stage the police were no longer locking them in their cells. So he was able to simply go over to Afolabi’s cell and walk in the passage. She told them that she took three taxis to get to her office and that her children could not go to school. Afolabi said that he would call her back. That was on a Sunday night.

[31] Afolabi knew that Mohamedou had a contact in Europcar, which did rental, and asked him if he could organise a Europcar for her. Mohamedou telephoned a friend at Europcar on a Sunday evening. The friend’s name is Jeff. Mohamedou told him that he (Mohamedou) was out of the country and needed a Europcar for a good friend coming from Angola. Jeff said that Mohamedou must call him early in the morning. Mohamedou called him in the morning, and Jeff asked him about payment which was normally effected by credit card. Mohamedou told him that he would send the mother of his child with cash, and Jeff said he would talk to a friend about using his credit card. Jeff said that Mohamedou must send the mother of his child to pay the money into “the account” and that they could then “swipe the card”. Jeff worked out that the car would cost R6000 per month.

[32] Afolabi provided the R6000. His wife brought the money at about 8h00 the following day, and Mohamedou gave this money to the mother of his child who went to Jeff with it and a friend of Mohamedou brought the car to the police station, having dropped the mother of his child at her home. Mohamedou knew the car from before, having rented it from Europcar. There was a black Renault Cleo which he had rented as well as a blue Polo Volkswagen. It was the blue Polo which came to the police station. Mohamedou cannot remember the date; it was during the fast of Ramadan. The friend gave Mohamedou the key in the visiting room through the hole on photograph 1 on exhibit E. Just after he was handed the key the accused arrived and Afolabi asked for the key. Mohamedou gave it to him. She and Afolabi then spoke for about 20 minutes after which she left with the key.

[33] Thereafter attorney Mogoeng went to meet the Scorpion team. Before he reported what had happened the accused informed Mohamedou and Afolabi that the Scorpions had come up with three options. There were three meetings with the Scorpions. This was at the second meeting and occurred before the incident of the Polo. The first option was to pay a fine of R415 000 – R200 000 would be for CARA, which refers to asset recovery, R115 000 would be for the complainant, and R100 000 would be a fine. The second option was five years’ imprisonment, and the third option was a full trial. They asked her on a telephone before the attorney reverted how long a trial would be, and she said 24 months, but that she would come over to see them later that afternoon. Mogoeng then arrived and told them exactly what she had told them.

[34] And so they believed whatever she told them. Mogoeng told them to take the first option which was to pay the money and get deported. Afolabi asked why they had to get deported because they believed she had validated the passport. Mogoeng said it was the best the Scorpions could do for them. The accused had not spoken about deportation. They then asked Mogoeng to go and said that they would call him later. She arrived later that day and told them exactly what she had said over the phone and advised them to take the first option saying that she would try to get Paul Louw to reduce the fine. They asked her about the deportation. She said that they must not worry about that and that she was there to help them. Mohamedou then spoke to Afolabi in Yuruba in her presence, and asked why they should keep paying Mogoeng money, because she was doing the whole job. Afolabi said they would talk about it later. She left and then Afolabi and Mohamedou had an argument about Mogoeng. Mohamedou said they should terminate his mandate, because he was very slow and that actually she was doing the whole job. Mohamedou and Afolabi then agreed to get a new attorney, Maharaj. The latter came and consulted with them, but they did not mention anything about the accused to him. They went to court at Wynberg; and asked Mogoeng to step aside. The case was remanded. Maharaj had taken over and they returned to the Sandton Police Station.

[35] The accused visited them all the time. Then the issue of the Polo occurred.

[36] One day the accused told them that she would help them “big time”; she would get the fine reduced to R315 000, and that they were lucky the advocate prosecuting, Provina, was going to a funeral over the weekend and that she (the accused) was going to take over the case.

[37] A day later she came and said that there was an urgent application for Afolabi’s property to be forfeited as the profits of crime, but that she could “get them off his back”. They asked what they could now do, and she said she would call a man from AFU to come up with a good arrangement for them so that she could remove the threat.

[38] On the next day in the afternoon she called them on her cellphone to say that they needed to come up with R30 000 for the man from AFU. They said they could only afford R10 000; Afolabi did the talking. She said no, and that she would give them time to organise the money, failing which she could not help them in regard to asset forfeiture. In that conversation Afolabi told her that they had changed attorneys. She asked why they did so without informing her, and she was not really happy about it; she said that she would come over and that they should not make any stupid decision and wait for her.

[39] She came later that day; he cannot remember what day. She said she had everything on track for them, since she was taking over the case, because Provina was going away. She was unhappy about them changing attorneys and said so. She said she could not work with Maharaj and that she already had everything on track with Mogoeng. She then left.

[40] The next day she called on the cellphone. Afolabi and Mohamedou were together all the time at that stage because the police were not locking them up. Mohamedou had a Motorola cellphone about which the police did not know. So they could use either the Motorola or Afolabi’s cellphone by exchanging the sim card. She told them that advocate Provina and the investigating officer Ursula agreed that she take over the case, but that they needed something of appreciation to allow her to do so. Afolabi asked her how much. She said let me speak to her. She spoke as if Provina and Ursula were right there. After about a minute she said they must come up with about R10 000. Afolabi said that this was alright, and that they would organise it in an hour. She said that she would be coming with advocate Provina to see them at the police station.

[41] Later on at about 1 pm she arrived and said that Provina did not want to come into the police station and that she was outside. Mohamedou asked Afolabi in Yuruba how it was that Provina had come all the way from Pretoria, and did not want to come in for 5 or 10 minutes, and he told Afolabi that this did not make sense to him. He then walked out of the room and left her sitting with Afolabi. He called one of the cleaners, and whilst he was speaking to him Afolabi came out of the room leaving her there. At that stage a policeman called Snake saw them standing with the cleaner and asked them what they were talking about, and they told him exactly what was going on and said that they wanted him to go and check and see if there was any Indian woman in the accused’s car or across the road in the coffee shop. He went to look and came back and said no. Mohamedou then told Afolabi that he must tell the accused that the money was not yet available and would be there around 3pm. Mohamedou explained that when he left Afolabi and the accused in consultation room 5 he went to call the person who was supposed to bring the money at the phone booth. When Mohamedou sent the police and the cleaner outside Afolabi went back to the room. He told Afolabi what they reported in Yuruba, and in English he said that the money would be available at 3 pm. The accused was not happy about that; he could see it in her face. She left and she said she would come back at 3pm.

[42] He asked the cleaner to follow her out and see if she talked to someone. An inspector was there when he spoke to the cleaner, and the inspector and the cleaner went outside and they returned and said that she had just driven away.

[43] Immediately thereafter an sms was sent by the accused to Afolabi’s phone to the effect that Provina was very angry about their action. Then Mohamedou asked Afolabi to apologise to her, and to say that they would make sure that the money was ready by 3pm. He, Mohamedou, added that they still had time to organise R30 000 for AFU. Afolabi did this and the accused arrived at 3pm. By then Mohamedou had called Sello, a policeman, aside and explained that the senior advocate said that she had helped to reduce the fine to R315 000, and that she was going to take over the case during the next appearance, and that she wanted R10 000 for her colleague and R30 000 for AFU. Sello told Mohamedou that he was a policeman, and that he did not know much about AFU but that the only advice that he could give was that they must talk to their lawyer.

[44] She arrived at 3pm. Afolabi told her that the money was not available but Mohamedou testified that he had the R10 000 in his possession. She said she was taking over the case and as they were having trouble with R10000 and R30 000 how would they pay the fine. Afolabi said the money is available but the man who was supposed to bring it was delayed. They discussed how the fine was to be paid. She said the amount of the fine must be paid into the account of David Molefe Moepi and that she would sms the account number which she did not have with her. Afolabi apologised about the R10 000 and the R30 000. If Mohammedou remembers correctly, she came with a little boy of 10 or 11. Later the same day she smsed an account number, the name of the account and the bank’s name FNB. The sms’s were to Afolabi’s cellphone. By that stage Afolabi was sick. Sometimes he could not get up and Mohamedou would get a phone and bring it to him in his cell. After she had sent the sms they informed her that the R315 000 would come from Afolabi’s mother in the UK. Afolabi said this on the cellphone and also face to face to the accused.

[45] The day after she sent the sms she returned. Mohamedou asked who David Moepi was. She said a colleague. She was joking with the police. Mohamedou called Afolabi aside and asked him how they could pay the money into the account of someone they did not know Afolabi said that the accused was there to help them and that he believed everything she said. At that stage Mohamedou had a problem about paying the money into the account. They asked her to give them time to organise the amount of R315 000 but said they would have the R40 000 in their hands on Thursday. She had visited them with her child on Saturday and this discussion was on Monday after they had received the sms.

[46] There were sms’s after the one about the account number. Mohamedou thinks that on the Monday night after she had left them, she sent an sms saying that they were wasting David Moepi’s time, and that he was going to Lesotho for his own business. Mohamedou remarked to Afolabi that she had said that David Moepi was a colleague, and he asked how it could be that a policeman could be a businessman at the same time. At that stage Mohamedou started having doubts about the whole situation but Afolabi still believed that she could help them and believed whatever she said.

[47] Mohamedou decided that he wanted to talk to Maharaj. On Tuesday she came over and said that she wanted the R315 000 to be paid before 2 October to prepare herself for the case. She said she would withdraw it against them and she said that she had even done so for two or three other Nigerians, and that they had walked free. (2 October was a Monday and the Tuesday preceding that was 26 September 2006)

[48] Mohamedou tried to phone Maharaj but did not make contact with him that Tuesday night. Sello was on duty. Mohamedou called him and told him the whole story and told him that she wanted the money in the account before she got to court on 2 October. Sello said there must be something wrong. He asked, in the event that the magistrate wanted them to pay the fine, where would they get the money and what would they tell the court if David Moepi was not there to pay the fine. Mohamedou tried to telephone Maharaj and didn’t get him, and left a message. He asked one of the inspectors to tell Maharaj if he saw him to come over, and that there was a problem.

[49] Eventually on the Wednesday Maharaj called. Mohamedou and Afolabi argued in front of him as to whether Mohamedou should tell Maharaj about the whole situation. They argued in Yuruba and then switched to English. Mohamedou said to Afolabi that they had to tell Maharaj. Maharaj asked what were they going to tell him. Then he (Mohamedou) explained to Maharaj the whole situation from the beginning and how the accused had helped them. They said that they believed the she was the head of the prosecutors. Maharaj said that he did not know her and would phone to find out who she was. He then made a call on his cellphone with the loudspeaker on. The voice told Maharaj that she was a senior advocate. Mohamedou told him about Provina going away and that she would not be available on 2 October. Maharaj called her and she confirmed that she was going away and would not be available. Mohamedou and Afolabi had an argument. Maharaj said they must not do anything until he had ascertained what the whole situation was and returned the next day. Later Mohamedou spoke to Maharaj by cellphone and he said that David Moepi was not known at the Scorpions.

[50] The accused phoned after a while and told them that the man at AFU had called her and wanted to know what the situation was. Afolabi spoke with the loudspeaker on, telling her that they were ready with the money. Mohamedou called Maharaj again and told him what she had said. He said they must not do anything until he came the next day which was a Thursday.

[51] On Thursday there was a call from the accused to ask when she could come and get the money. They told her around 1pm. Mohamedou then called Maharaj and the latter said that he was coming at about 12h00. They then communicated with the accused and told her to come at around 4 to 5 pm to get the R40 000. They did so because Maharaj said they must not give the money until he had been there. Maharaj came with a Captain Makate who signed them out of the cells, and took them to the Sandton Police Station which is in a different building from that of the cell block. There he met Piet Jonker and Piet van der Merwe, who both produced their ID cards, and said that they were from the Scorpions. Maharaj asked Mohamedou to explain to them exactly what he had said to him. Mohamedou said to Maharaj that he did not know who to trust: the accused or these policemen; and he said that if anything went wrong he would take Maharaj to the Law Society. Maharaj said that these men were there to help him. Mohamedou then explained the whole situation to them. Because Afolabi was sick he could only give a comment on what was being said. Van der Merwe said he had nothing to do with Mohamedou’s case, but he was just there to help save their money and that otherwise they were going to lose R315 000.

[52] Whilst they were there with the two policemen the accused called Afolabi and wanted to know at what time she should come and get the money. Afolabi told her at around 4 to 5pm.

[53] Mohamedou explained the whole situation to the police. They made some calls and were told that David Moepi was the accused’s husband. Van der Merwe made a few calls and it seemed that the State did not have money available. He asked Mohamedou if he had R40 000 to give her and they said they did have and that it was at Mohamedou’s house. Van der Merwe asked that it be brought to the police station. By then it was about 3pm and Mohamedou agreed that Afolabi call his wife and send her to Mohamedou’s house where she would get the money. She brought it over with food to the charge office at the police station and gave it there to Afolabi. Mohamedou gave it to Piet Van der Merwe and they spread it on the table and photographed it. They marked some of the money. It consisted of R200 notes. The money was counted; it was R40 000. After recording and marking the money Piet Van der Merwe put it in a brown envelope which he stapled and gave to Afolabi and they returned to their cells. One of the officers, who was tattooed and had a camera, pretended to be a drunkard. He was brought there by captain Makate. They took the man into the cell-commander’s office, and Mohamedou and Afolabi back to their cells. The man remained in the passage.

[54] At around 5 to 6pm the accused came and the police called Mohamedou and Afolabi. The cameraman was in the passage swearing at everyone. Then the accused arrived. The police brought someone, who was selling clothes, into consultation room 3. Rooms 3 and 4 were occupied. Room 5 was locked. The accused and Afolabi went to consultation room 6, the fingerprint room. Mohamedou was standing in the cell-commander’s office helping an arrested man in consultation room 3 who was a Nigerian, whilst he (Mohamedou) was at the same time watching the computer screen on the desk in the cell-commander’s office. He did not know what the conversation between Afolabi and the accused was but saw Afolabi open an envelope and show her the money inside it.

[55] After that she was going in and out of the fingerprint room to the cell-commander’s office and, if he remembers correctly, she asked for a docket and went back to Afolabi and left her bag and docket in the fingerprint room. She left it again and went to the cell-commander’s room. She took papers in the cell-commander’s office from the pigeon-holes there. She then went to Afolabi in the fingerprint room and after about five minutes she came out. Whilst she was there she placed papers on the table there.

[56] Afolabi then called Mohamedou on his cellphone to that of Mohamedou. Mohamedou then went to the fingerprint room and Afolabi told him that he had shown the accused the money and that he was afraid that they were going to lose it. At that stage the accused had left the bag in the room. Afolabi said that she said he must put the money into the docket and he had done that, and showed Mohamedou the money in the docket and he said that he was scared that they may lose it. He took the money out and put it into his pocket. Mohamedou said they could not start what they were doing and then not go through with it and that otherwise they would be charged with corruption as Piet Van der Merwe had said. Afolabi said that it was his (Mohamedou’s) money and that he must not blame Afolabi if the money was lost. Mohamedou said he would not and that Afolabi should put it in. At that stage the accused came into the fingerprint room, speaking to the AFU man on the cellphone and saying that they were ready with the money and that he should cancel everything. She turned as if she was going out and she asked where the money was and Afolabi opened the docket and showed her; she looked at it and walked out. The docket remained on top of the desk and the bag was there too.

[57] Mohamedou could see she was not calm and that she was expecting somebody; Mohamedou thought it was possibly the man from AFU. She was going in and out of the cell-block. Afolabi was sick. He wanted to go and sleep. He called her by cellphone. At that stage she was back in the cell- commander’s office and Afolabi told her that he was tired and that he had to go and that she knew that he was sick and wanted to go and sleep. She said over the phone: “Bring everything with my bag.” Mohamedou could hear her saying it and from that he knew that she was in the cell- commander’s office.

[58] Afolabi took the docket and the bag. At that time the man with the tattoo was swearing and making a lot of noise. The mother of Mohamedou’s child arrived with food and so Mohamedou went to the fingerprint room with her, leaving Afolabi with the accused in the cell-commander’s room. He did not know how the docket got inside the accused’s bag. Afolabi told him that she had asked Afolabi to put it into the bag.

[59] When Mohamedou returned the accused was sitting in the cell- commander’s room at his desk. The bell rang again at which stage Mohamedou, Afolabi and the accused was sitting there. The man with the tattoo and the police were in the passage outside the cell-commander’s room. When the bell rang they could see on the screen that the person ringing was Mary from Maharaj’s office. She came into the cell- commander’s room. Afolabi introduced Mary and the accused to each other. Mary went to consultation room 3 leaving the three of them in the cell- commander’s room. She was there for two to three minutes, and returned to the cell-commander’s room and then they were busy talking to the accused, and she was now calm.

[60] Mary returned to the cell-commander’s room and then went out again. Mohamedou thinks she saw a male and a female client separately. After she had finished she came to sit with them in the cell-commander’s room. Before Mary arrived in the cell-commander’s office the accused asked whether they had told Maharaj about the R315 000. Afolabi said yes and she asked what he said and that was the stage Mary came in.

[61] After Mary had consulted with her clients they sat and chatted for about fifteen minutes. Afolabi said he was tired and had to go and sleep. Mohamedou interrupted his recital to explain to us that Afolabii had diabetes and a kidney problem. Mohamedou was the first to leave the cell-commander’s office and he saw the accused give her bag to Mary while she was adjusting her dress in the cell-commander’s office and while they were going out. Policemen came and kicked the man with the tattoo and said that he must now go. The man with the tattoo was right behind them and they all went out. The police then locked the entrance and that was all that he saw.

[62] Exhibit R contains a number of sms’s. Sms 1, dated 22 September 2006 at 14:47 was from the accused to Afolabi and read: “John, u have really angered Provina n spoiling our friendship”. That was sent the day the accused had said Provina was refusing to come into the police station. Sms 2 of 23 September at 12h21reads: “Dm Moepi 6708205828082”. The reason for this sms from the accused was, Mohamedou said, that the money from the UK was coming by moneygram, and they needed the receiver’s ID. It was Mohamedou’s idea just to get the ID. By then he was getting advice from Sello. Afolabi told her that the ID was required to transfer money.

[63] Sms 3 directed to Afolabi’s cellphone from the accused on 23 September at 1:22pm gives the full name of David Molefe Moepi. This was sent because Mohamedou asked Afolabi to request the accused to supply the full names. Sms 4, dated 26 September 2006 at 13:42, and from the accused reads: “John, I need 2 release David 2 go 2 Lesotho seeing that nothing is happening n he will b gone 4 2 weeks, I cant make him wait 4 nothing *some text missing*”. Sms 5 dated 26 September at 15:50 pm to Afolabi from the accused reads: “D. M. Moepi. 621114674380. Savings. FNB. Branch code – 258155”. Sms 6 from the accused to Afolabi dated 27 September at 13:07 reads: “John, David needs 2 go 2 Lesotho 4 his business n cant wait 4 u any longer as he thinks u r just waisting his time, should I let him go as he is losing money by waiting 4 nothing”. Sms 7 dated 28 September at 11:45 sent by Afolabi to Maharaj reads: “Now she wants r40000 today r10000 for pravina and paul and r30000 for the asset forfeiture fellows”. Sms 8 dated 28 September at 12:49 reads: “She just called that if the 40 000 is not made available by 17hrs she will instruct paul and pravina that the deal if off i hope your contact will be able to make it”.

[64] He reported to Sello at the stage when the accused was asking for R315000 to be paid into David Moepi’s account. All along until then they believed her. His trial was finalised two weeks after the accused was arrested. They appeared in court once, and the second time they got sentenced. He saw the video shown to the Court and confirmed what happened there and what is recorded on the video.

[65] Mr Pretorius, who appeared for the accused, and cross-examined Mohamedou confronted him with an affidavit deposed to by Afolabi on 6 October 2006. The affidavit was a typed version of a statement hand-written by Afolabi himself. The pen-ultimate typed page was missing when Afolabi took the oath before Pieter Marthinus Van der Merwe (referred to above as Piet van der Merwe), the commissioner of oaths and policeman who gave evidence before us. There is no dispute that we must read the affidavit as if it contained the missing page. Before the State closed its case I was asked by its counsel, Mr Broodryk, who appeared with Mr Mohammed, to rule Afolabi’s statement admissible, in terms of section 3 (1)(c) of Act 45 of 1988. I acceded to the State’s request and ruled the statement admissible, indicating that I would furnish reasons for the ruling later, and I now proceed to do so.

Section 3 reads as follows:

3. Hearsay evidence.—(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless—

(a) each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings;

(b) the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceeding; or

(c) the court, having regard to—

(i) the nature of the proceedings;

(ii) the nature of the evidence;

(iii) the purpose for which the evidence is tendered;

(iv) the probative value of the evidence;

(v) the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;

(vi) any prejudice to a party which the admission of such evidence might entail; and

(vii) any other factor which should in the opinion of the court be taken into account, is of the opinion that such evidence should be admitted in the interests of jus­tice.

(2) The provisions of subsection (1) shall not render admissible any evidence which is inadmissible on any ground other than that such evidence is hearsay evidence.

(3) …

(4) For the purposes of this section—

“hearsay evidence” means evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence,

“party” means the accused or party against whom hearsay evidence is to be ad­duced including the prosecution.”

[66] There are judicial dicta indicating a reluctance to admit hearsay evidence in criminal cases. In Metedad v National Employers’ General Insurance Co Ltd 1992 (1) SA 494 (W), Van Schalkwyk J said at 499 H in respect of the application of section 3(1)(c) of Act 45 of 1988:

“Because of the presumption of innocence, and the court's intuitive reluctance to permit untested evidence to be used against an accused in a criminal case, this section might only rarely find application in our criminal law. That does not however mean that it will not be usefully and constructively applied to assist in the search for the truth in civil actions.”

See too Hewan v Kourie NO and Another 1993 (3) SA 233 (T) at 239F.

[67] In S v Ramavhale 1996 (1) SACR 639 (A) Schutz JA agreed at 647i-j with Schalkwyk J’s remark about the Court’s reluctance to permit untested evidence to be used against an accused in a criminal case, and he agreed too with the expression of the same concern in Hewan at 239F and in S v Cekiso and Another 1990 (4) SA 20 (E), and he went on to say at

648 a-b: “An accused person usually has enough to contend with without expecting him also to engage in mortal combat with the absent witness.”

Schutz JA also said at 649d-e that “a Judge should hesitate long in admitting or relying on hearsay evidence which plays a decisive or even significant part in convicting an accused, unless there are compelling justifications for doing so.” See too S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) at 337d. In considering the probative value of the evidence in Ramavhale Schutz JA, at 650f–g, appears in effect to take the view that the hearsay evidence concerned did not give rise to an inference of any real importance in determining the issues in the case. At 650i–j he warns against allowing the State to force an accused into the witness box “by piling on flimsy hearsay evidence… where the dearth of weighty direct evidence is such that he should be entitled to stay out.” In the present case there was certainly not a dearth of weighty direct evidence, entitling this accused to stay out of the witness box. In Ramavhale a serious irregularity had occurred in the Court a quo in that hearsay evidence was admitted at the conclusion of the whole case and without a ruling at the close of the State’s case, and the dicta of the Supreme Court of Appeal adverse to the admission of the hearsay involved must be read in that important context.

[68] But there are dicta stressing the flexibility of section 3(1)(c). In Metadad at 499G the following appears:

“There is no principle to be extracted from the Act that it is to be applied only sparingly. On the contrary, the court is bound to apply it when so required by the interests of justice.”

In Hewan at 239C–240B Du Plessis J, speaking for a Full Court of three Judges, said the following:

“Section 3(1)(c) requires the Court, in the exercise of its discretion, to have regard to the collective and interrelated effect of all the considerations set out in paras (i)-(vi) and also to 'any other factor which should in the opinion of the court be taken into account' (para (vii)). When doing that, the reliability of the evidence will no doubt play an important role: para (iv) requires the Court to have regard to the probative value of the evidence. It stands to reason that the less reliable the evidence, the less its probative value will be. However, probative value or reliability are not static, well defined concepts. There are numerous degrees of reliability. The Legislature recognised this in requiring the Court to have regard to all the factors mentioned in s 3(1)(c). A proper application of the provisions of s 3(1)(c) will result in the Court having proper regard to the reciprocal influences that the various factors have on each other in determining the interests of justice in every case. Thus the Court, having regard to the nature of the proceedings, the purpose for which the evidence is tendered, the reason why hearsay evidence is tendered and the prejudice to the other party, might be inclined to admit evidence which is by its nature less reliable where the evidence is tendered in motion proceedings, but, in order to prove a central issue in a criminal case, the Court would in turn probably require a high degree of reliability or a substantial probative value before exercising its discretion in favour of admitting evidence. Section 3(1)(c) introduces into the rule against hearsay a flexibility which should not be negated by also introducing, in addition to the requirements of the section, reliability as an overriding requirement. The difficulties encountered by the Court in applying the exceptions to the common-law rule against hearsay underline the dangers in categorising and labeling exceptions to the hearsay rule. Paizes… puts it as follows:

'The stark reality, it would seem, is that the category and label approach is conceptually defective in that it fails to come to grips with the variable character of hearsay. The border between acceptable and unacceptable hearsay is often very thin, and depends on several interdependent factors which defy precise enumeration and which may only be garnered from the totality of the circumstances of each individual case.'

By the same token, it would not be in accordance with the intention of the Legislature to categorise certain cases or certain issues and to hold that s 3(1)(c) should be applied only sparingly or reluctantly in such cases or to such issues. The dictum of Van Schalkwyk J in the Metedad case is therefore respectfully agreed with. The dicta in S v Cekiso and Another (supra) and Aetiology Today CC t/a Somerset Schools v Van Aswegen and Another (supra) to the contrary are, with respect, not in accordance with the wording of s 3(1)(c) of the Act. It might at this juncture be appropriate to echo a note of warning from the article by Unterhalter (quoted supra):

'Since s 3(1) is an exclusionary rule, the court should proceed on the basis that the hearsay evidence is inadmissible unless there is reason to suppose that the interests of justice require admission. A consideration of the factors listed in s 3(1)(c) must provide a clear, though not overwhelming, preponderance of reasons in favour of admitting the evidence to rebut the presumptive exclusionary force of the rule.'”

It is to be noted that Du Plessis J ’s remarks relating to a criminal case concern the proof of a central issue, and that he emphasises, immediately after these remarks that the section introduces a flexibility which should not be negated by the addition of reliability as an overriding requirement.

[69] In Ndhlovu Cameron JA stated at 366a that it had long ago been emphasised by the Appellate Division that hearsay evidence, unless brought within one of the recognised exceptions, was not evidence at all. He then went on to say the following at 336b-f;

“[14] The 1988 Act does not change that starting point. Subject to the framework it creates, its provisions are exclusionary. Hearsay not admitted in accordance with its provisions is not evidence at all. What the statute does is to create supple standards within which courts may consider whether the interests of justice warrant the admission of hearsay notwithstanding the procedural and substantive disadvantages its reception might entail. The Act thus introduces the very feature this Court held the common law lacked, namely 'a principle that the rule against hearsay may be relaxed or is subject to a general qualification if the Court thinks that the case is one of necessity'.

[15] The 1988 Act was thus designed to create a general framework to regulate the admission of hearsay evidence that would supersede the excessive rigidity and inflexibility - and occasional absurdity - of the common law position. In the result, as this Court recently stated in Makhathini v Road Accident Fund, the 1988 Act retained 'the common law caution' about receiving hearsay evidence, but 'altered the rules governing when it is to be received and when not', principally by glossing the common law exceptions with the general criteria of relevance, weight and the interests of justice:

'The statutory preconditions for the reception of hearsay evidence are now designed to ensure that it is received only if the interests of justice dictate its reception.' ”

[70] In S v Shaik and Others [2006] ZASCA 105; 2007 (1) SACR 247 (SCA) the Court said the following at 306 a–c in para [171]:

“Being criminal proceedings the onus was on the State to prove the appellants' guilt beyond reasonable doubt in a fair trial which, in terms of the Constitution, entailed the right to challenge evidence. Although the right to challenge evidence does not always encompass the right to cross-examine the original declarant, Courts do have an 'intuitive reluctance to permit untested evidence to be used against an accused in a criminal case'. In S v Ramavhale 1996 (1) SACR 639 (A) Schutz JA said that 'a Judge should hesitate long in admitting or relying on hearsay evidence which plays a decisive or even significant part in convicting an accused, unless there are compelling justifications for doing so'. However, sight should not be lost of the true test for the evidence to be admitted, and that is whether the interest of justice demands its reception.”

(My underlining)

[71] And in para [173] at 306g the following was said in regard to the purpose for which the evidence was tendered:

“The evidence was tendered by the State to prove the offence in terms of the main charge under count 3 and was of vital importance to the State’s case”.

In the present case Afolabi’s statement is less vital to the State’s case and, as it contradicts some of the objective evidence, may actually assist the accused. It is important to note that the dictum in Ramavhale should not result in the Court losing sight of the true test, enunciated in the sentence from Shaik underlined by me, and that is whether the interest of justice demands the reception of the evidence. In my view, this means that it is encumbent upon to the Court to consider all the factors at play.

[72] I turn to deal with the provisions of the section:

(i) The nature of the proceedings

The fact that this is a criminal case results in reluctance to admit the evidence involved. But it is a case involving corruption, and direct evidence in such a case of the corrupt relationship between the actors can often only be given by such actors. Ex confesso, such an actor, who was a party to the corruption, was involved in dishonest dealing, and is suspect for that reason alone. In the result, the evidence of such a person should be regarded with great circumspection, and the case decided upon those aspects which the objective evidence indicates are true – in a criminal case, beyond a reasonable doubt. It is in the interest of justice for the Court to attempt to find gems of truth in the murky waters created by the corrupt relationship, and not to be too fastidious about entering those waters in order to do so. There is a further important factor regarding corruption. Whilst all other crimes are committed against innocent complainants, the crime of corruption is normally committed by two or more persons who are themselves perpetrators, and because of this, commit the crime in as much secrecy as possible. All these considerations indicate that it is in the interests of justice in a corruption case for the Court to lean in favour of admitting the evidence rather than excluding it.

(ii) The nature of the evidence

The evidence is that of the relationship between Afolabi and the accused during the period 17 August to 28 September 2006. The statement concerned formed the basis of the indictment. Virtually all of it constitutes direct evidence of what occurred, and not evidence of what others may have told Afolabi. The statement was made under oath and would accordingly have been admissible in motion proceedings. Furthermore, it was obviously made seriously in contemplation of this very trial, making it likely that the declarant would have realised its importance, and the fact that he would expose himself to criminal sanctions if he lied in it. The statement was made in writing and so there is no difficulty about its accurately conveying what Afolabi said.

(iii) The purpose for which the evidence is tendered

The evidence is tendered to explain the objective facts arising from the sms’s and the other objective evidence in this matter. It is also tendered to support the evidence of Mohamedou, and the allegations in the indictment. Sometimes the hearsay proffered in a case is the sole evidence available to prove a particular factum probandum. This is not one of those cases. Here Afolabi’s statement is only one element in a body of probative material whose cumulative effect is relied on to prove one or more of the facta probanda. It seems to me that all that is required in such a case is that the statement should contribute, together with the other relevant probative material, to proving the relevant facta probanda with the required degree of reliability. The statement does this.

(iv) The probative value of the evidence

In Ndhlovu Cameron JA was dealing with evidence which did play “a decisive or even a significant part in convicting the accused”, and at 347 d-e he said: “The high probative value of the evidence in this case and the objective guarantees of its reliability, provide the compelling justification which must always be sought if hearsay evidence is to play a decisive or even a significant part in convicting an accused”. In the present case the hearsay evidence will play a part in convicting or acquitting the accused because Mohamedou’s evidence, which is admissible, substantially covers all the issues raised in Afolabi’s affidavit. The significance of the hearsay evidence is, of course, less than it would have been had the affidavit stood alone. The evidence has a number of weaknesses but it does tend to support the State’s case. Furthermore, much of the evidence rings true and is supported by objective evidence, and, of course, by other evidence. In admitting it, I was of the view that this Court might reasonably conclude at the end of all the evidence that it had sufficient probative value to be a factor in determining the guilt or innocence of the accused. When I made my ruling, at the stage when the State’s case was about to close, I faced the difficulty a trial court faces in such circumstances: only part of the evidence had been led, and evidence by the defence, or even by a witness called by the Court, could notionally affect the reliability or otherwise of the hearsay sought to be admitted.

(v) The reason why Afolabi is not giving the evidence

He died on 25 November 2006.

(vi) Prejudice to a party which the admission may entail

This means procedural prejudice, and results from the declarant not being cross-examined, and is always present − Ndhlovu at 347f-g. Cameron JA says at 347g that such prejudice “must be weighed against the reliability of the hearsay in deciding whether, despite the inevitable prejudice, the interests of justice require its admission.” Clearly, of course, all the factors referred to in section 3(1)(c) fall to be weighed and the learned Judge of Appeal by highlighting one of them could not have intended to say otherwise. In the present case Mohamedou has testified and been cross- examined on substantially the same evidence as that contained in Afolabi’s statement. This is a factor which to some extent reduces the prejudice involved for the accused.

(vii) Any other factor which ought to be taken into account

I can think of none.

Taking account of all the above, I remain of the view that, applying section 3(1)(c), it is in the interest of justice that Afolabi’s statement be admitted.

[73] Afolabi’s statement reads as follows:

“I, the undersigned attest that this statement is issued voluntarily without any protest or force of any kind, this statement detailing events regarding extortions and threats from Senior Advocate Portia, a Prosecuting Advocate attached to the Directorate of Special Operations.

I, Olayein John Afolabi hereby state:

1.

I am a Nigerian National of 42 years of age, an entrepreneur, married with 2 kids and that I am a Director of Providence Society International, a Medical Funeral Insurance concern in conjunction with AVBOB Funeral Society of Pretoria, we have establish a society funeral scheme to cater for funeral/medical insurance coverage for legally resident African Foreigners in South Africa.

2.

That I am in critical health situation, a diabetic with kidney complications.

3.

That I am implicated in:

1 Money laundering case - for receiving funds from Namibia, that certain acquaintance of mine from Namibia with my consent fraudulently directed a total of R46,000 into one of my account in April 2005.

11 Diamond Trading Case - that in June 2005, I acted as broker in a diamond transaction that turned sour, the transaction involves US Dollar 140,000, the complainant, an American through his local representative seek redress and refund of his money effected into my account on payment for diamond courier services.

4.

That on the month of the 17^th of August 2006 at dawn, 04:15 am, the Directorate of special operations, armed with a search warrant and warrant arrest raided my residence in Bryanston, along with my office in Midrand, Illovo and Johannesburg City Center.

5.

That the Senior Advocate Portia was part of the raiding team that came to my in Bryanston, that came to the raid and subsequently arrested me. I have never knew any of the Scorpion agents including Senior Advocate Portia.

6.

That I was detained at Sandton Police Station with an old friend, a co- accused, Djibril M. Issa, with instruction that we must be separated in different cells.

7.

That the investigating officer, Senior Investigator Urshla came to see me on Friday the 18^th of August to issue me with preliminary warning and I was charged with 4 cases of fraud on the 19^th of August 2006.

8.

That I accepted 3 of the charges and the fourth charge was not to my knowledge but my co-­accused agreed it was him.

9.

That on the morning of the 19^th of August 2006, Senior Advocate Portia passed by the Sandton Police Station to check on my health and to find out how I was copying with the situation, she informed me of the gravity of the case against me totalling ±60,000 and confirmed that the most damaging evidence against me is the 2 Malawian passport found at my office in Midrand. The passport that I have used to open accounts in 2005, even though the account are no longer active, it is still extremely grave but that she can assist to have the passport validated and confirmed by Home Affairs, that the details of the passport will be uploaded into the Home Affairs system through her direct contact at Home Affairs.

10.

That her contact in Home Affairs will consider helping me resolve this mess but asked me, how much do I have to offer to show my appreciation, I told her that I could arrange R7,000. within ½ hour, she gave me the go ahead, I made some calls and a friend came to my aid with R10,000 out of which I gave her R7,000 by the telephone booth next to the charge office where there is no close circuit camera, this was around mid-day, she gave me her private contact number 073 344 3435. She told me she is heading to see the Home Affairs contact and that I should contact her later and she left.

11.

That I called her at around 16:00 hours and, Portia informed me that the fellow at Home Affairs is willing to help but considered R7,000 to be very insulting, too small for his efforts and risks involved. She asked if I can up the amount to R10,000, I told her that I only have R2,000 left, she said OK, she will pass by to collect, she returned to Sandton Police cells and I was called out for her then I gave another R2,000 to make R9,000 to enable the Home Affairs contact to help me out.

12.

That I used the remaining R1,000 to procure an old 3310 Nokia phone with a new sim card, which I keep at the front charge office in my medication bag and only used the phone when I have visitors between 10:O0am to 11:00am or 17:00 to 18:00 pm.

13.

That my new number 072 294 2912 was texted to her by sms and she called back to confirm and from there on we communicated regularly through the phone as time allows.

14.

That on Monday the 21^st of August 2006, we went to court and case was remanded to the 28^th of August and we were allowed to return to Sandton Police cells for health reasons and to allow the investigations to easy access to us.

15.

That Senior Advocate Portia came to see me in the afternoon to check on me and to inform me that the passport issue has been resolved and I was content.

16.

That as I did not hear from Senior Advocate Portia again, after 4 days, I called her on Friday afternoon, she said she could not come to Sandton for lack of fuel, that she ran out of funds, her month allocation is exhausted, I told her to come over and I will resolve that. I called friends and made arrangements for R3,000 for an urgent need, she came on Saturday morning and I gave her R3,000 at the same place, over the telephone booth next to the charge office.

17.

That she called the charge office at Sandton Police station to inform me that she will be busy during the week and will only see me next Monday.

17.

That I called her to enquire about her health and the kids, she confirmed all was well with her family but that her car was got burned out with the whole engine engulfed in fire and smoke and that she had to take 3 taxis to work and that the kids could not go to school for lack of transport. I told her that I will call her back shortly.

19.

That I asked Mohamed my co-accused if he could arrange a small car for Senior Advocate Portia from Europcar as he have accounts with Europcar. Mohamed made arrangements with Jeff at Europcar for a blue Polo at a cost of R6,000 per month, which I paid for the first month through Mohamed.

20.

That I then called Portia that we have arranged a car for her from Europcar and that the car should be ready by 12:00 mid-day.

21.

That the car was brought to the Sandton Police station by a friend before 12:00 and that she came at 12:07 and I gave her the car keys, we discussed at length for over an hour and she left.

22.

That my first attorney, Mr Reuben Mokaeng went to see the Scorpion on Pretoria for a meeting on the 7^th of September 2006, at the meeting, we were given 3 options

Option 1: 8 years suspended 7 years on condition that:

1. Pay R115,000 to complainant

11. Pay R100,000 into CARA

111. Pay R200,000 as fine

Total=R41 5,000

Option 2: 10 years imprisonment suspended on condition that:

1. As above

11. As above

111. Serve 5 years in terms of 276(1) (1)

Option 3: Full trial

23

That at the meeting in Pretoria it became clear that out of the 4 cases, 3 are mine and my co-­accused is responsible for the 4^th case in an amount of R42,000 and will be fined R20,000.

24.

That Mr. Reuben Makaeng came to see us on the afternoon of the 7^th September on his way back from Pretoria to advise that we should consider the plea bargain and that he has brought down the fines from R700,000 to R300,000 + R115,000 = R415,000 that we should pay the complainant and pay a fine of R3 00,000 and get deported, then I realized that the passport issue was not resolved, I called Portia and she insisted the matter has been resolved, that she is coming over to see me, that she has won a major victory today on my behalf.

25.

That we requested Mr. Reuben Makaeng to request a lesser fine to R350,000 in total.

26.

That Mr. Reuben Makaeng was very slow in coming up with new figure and the case kept on being postponed to allow time for possible plea and summarily terminated his mandate and asked him to step aside.

27.

That we arranged for the Senior of a reputable Rivonia based Attorneys to take over the case and mandated to finalise the matter. I received a call from Advocate Portia the very same day asking “why those Attorneys”. She will not work with these Attorneys and that I should hold off until she finds time to see me. I must not make any nasty decisions. (In the original hand-written draft the word ‘nasty’ appears to read ‘hasty’)

28.

That on the 20^th of September, Wednesday, Advocate Portia came to confirm that she is working on reducing the fines to R3 15,000 and will keep me informed in few days but most urgent is that the Asset Forfeiture Unit (AFU) has made an urgent application to have my assets attached as crime benefits but that she is going to keep them off my back and will get the AFU fellows to come up with a possible arrangement.

29.

That on the 21^st of September, Thursday, Advocate Portia came to advise that I must raise R30,000 for the AFU fellows and to keep the AFU from attaching my assets, she must have the R30K immediately, same day if the AFU is to be kept at bay.

30.

That time was too short to raise R3OK and I offered R10,000 for now that within the coming week, I will make good on the balance of R2OK, but I could not raise the RlO,000 immediately, so she gave me some time to come up with the funds.

31.

Moreover she informed that she is willing and ready to take over the case from the Prosecuting Advocate, Advocate Pravina, that she and Senior Advocate Pravina are friends of good standing, that they have done each other favours in the past, that this will not be the last they have come to an agreement that Advocate Pravina will go on leave during the week of 2^nd October as our trial was scheduled for 2^nd October, that with understanding from Senior Advocate Pravina, and Advocate Pravina and Advocate Pravina absence, she will be the only available Advocate and the case will be prosecuted by herself, Advocate Portia, on the 2^nd of October 2006.

32.

That before she appears in court on the 2^nd of October, she wants.

R315,000 paid into the account of one David Moeti, she promised to strike off the case on that very day and that she will SMS text David’s bank account which Portia did.

33.

That she did SMS text over the details of David’s account at FNB, insisting that the R315,000 must be made available before she gets to court on Monday the 2^nd of October preferably by Friday the 20^th of September so she can prepare herself. (The date of 20 September may well have been intended to be 29 September judging by its appearance in the handwritten statement and, unlike 20 September which fell on a Wednesday, that day was a Friday)

34.

That when in court, as the Prosecuting Advocate she will withdraw the charge and we can go home, and we believed her. It later emerged that Pravina will, in truth and in fact, not be available on the 02^nd October 2006.

35.

That on Friday 22^nd she and Advocate Pravina will be coming to see us and finalize the arrangements.

36.

That she called on Friday the 22^nd saying Advocate Pravina and Senior investigator Urshla need some kind of appreciation, some small gesture for allowing Advocate Portia to take over the case. I asked her how much, and she told me to hold on whilst she asked them, they came up with

R1 0,000 and I said she should come for the RI 0,000 at 11:00am She promised to be at the Sandton Police station with Advocate Pravina. at 11:00am, she came alone at 11:05am claiming Advocate Pravina is outside but refused to come into the charge office. We became suspicious that how could she come from Pretoria to Sandton and refuse to come in, so, we asked a Police inspector to check outside if there is an Indian lady in Advocate Portia’s car and to also check the coffee shop opposite Sandton Police station if there is any Indian lady.

37.

That we suspected something is not going down the right way and held onto the R10,000, we told her to come back at 15:00 for the money and she left to later send me an SMS/text that Advocate Pravina was very angered by our action, she called later to say she will come on Saturday afternoon to collect the R10,000, because she has promised her collegue and if she did not come up with the R10,000, we will leave a big problem on our hands and may God help us.

38.

On Saturday the 23rd of September she called in the morning asking about the money, the R30,000 for the AFU and the R10,000 for Advocate Pravina and Senior investigator Urshla, that she angrily threatened that if the full amount upon not raised on the very same day, we will be going down for 15 years at least. I pleaded with her to give us some couple of days to come up with the funds and she agreed and gave us 3 days to raise the money and must not come up with any tricks. We wanted to call in the SAP anti corruption for advice but decided to wait for advice from our Lawyer.

39

We tried to reach on Attorneys for advice and we could not reach him until the 26^th of September, Thursday, when he came over, we explained our predicaments and he advised us. The lawyer advised us that Portia is not the allocated Prosecutor and only Mr Louw has discretion in my case. He also advised us not to part take in any corrupt activity. I took the lawyer’s advise and caused the matter to be investigated.

40.

That after investigation with Scorpion Head offices, it was decided to meet with us. We met other Scorpion investigators detailed our story in presence of our Attorneys and was asked to cooperate fully with the Directorate of special operations. We were asked to make arrangement for R40,000 in cash, which we did and which was photographed and serial numbers noted before we envelope the R40,000 and I was asked to call her in their presence and tell her that the full amount of R40,000 is ready. I called her and informed her to come over to collect her R40, 000, RI 0,000 for Pravina / Urshla and R30,000 for the AFU unit, that she should come at 18:15pm.

41.

That she came in at 18:35pm to collect the money, that I passed the envelope to her and she asked me to open her bag and put the envelope in her bag. There was a Scorpion agent witnessing the entire show without Portia’s knowledge as to whom he is. She received R40,000 and was arrested outside the cell gate.

42.

My fear since this event is that I hope this occurrence will not jeopadise my case and the plead bargain we are reporting with the DSO.

My health is deteriorating at a critically alarming state as I am Diabetic with kidney complications.

Advocate Portia knows my residence and the safety of my family is at risk, I will supplement this statement if required but that is all I wish to state for now. I know and understand the contents of the this statement. I have no objection to taking the prescribed oath. I consider the prescribed oath to be binding on my conscience. I swear that the contents of this statement are true, so help me God.”

[74] The accused testified that she was born on 14 June 1967and was married with three children. She studied at the University of the Northwest from 1987 to 1990, and obtained a University Education Diploma. She thereafter at the University of the North obtained the degree of B Iuris, having studied there from 1991 to 1993, and the LLB degree, having studied there from 1994 to 1996. She enrolled for the LLM degree at the University of Pretoria in 1999. After 1996 she served articles with the Legal Aid Board where she spent seven to eight months, and then obtained a post at the South African Revenue Services (“SARS”), stationed at the Johannesburg International Airport as a senior customs or excise officer. She left there after a year and was then employed at the Department of Foreign Affairs as a senior legal officer.

[75] She worked at the Legal Aid Board from 16 January to 30 July 1996, at SARS from 1 August 1996 to 31 July 1997 and at the Department of Foreign Affairs from 1 August 1997 to 31 July 1999. She worked as a senior state advocate for an entity described as IDSEO from 1 August 1999.

[76] She was present during the arrest of Afolabi during the morning of 17 August 2006. Their discussion was a very social one. He was a very humble person and down to earth and not arrogant at all. Other suspects were arrogant, shouted and yelled. She gave him the numbers of her landline, her private cellphone, and her official cellphone. He asked for these and she saw no reason not to give them to him. During the search and seizure at his property she allowed him to telephone his attorney and she supplied the numbers so that he could furnish his attorney with the numbers. It was very evident that he was sick; his mouth was dry and his eyes were not bright and she intervened to asked the police to give him a chance to have something to eat before he was taken away since he had sugar diabetes and a kidney problem.

[77] On 18 August 2006, as appears from page 14 of exhibit K, the record of her cellphone calls, Afolabi telephoned her on a landline at the Sandton Police Station at 09:31 and the call lasted 664 seconds. During the call Afolabi was complaining about his health and asked what she could do about it. She said she could not comment she was not a doctor, and was not even involved with his case, and that it was best for him to make contact either with the prosecutor, his own attorney or the investigating officer. She said that, speaking from a mother’s point of view, she developed a soft spot for Afolabi because from the very first day he spoke about her children, and his kind of love or small interest in them melted her heart; he wanted to know how they were doing at school and what grades they were in; this was despite the fact that he was under arrest.

[78] At 11:24 on 18 August, according to page 14 of Exhibit K, which contains the calls made on her private cellphone, she went to the police station. Afolabi spoke to her complaining about his health which was also a great concern to her. He was long-winded and would talk and nag about everything. She said she could hear his concern and frustration during her previous cellphone call to him, and she had promised to visit him, saying that he knew that he did not have to worry, and that she would see him on her way to a meeting in Sandton. She did not even spend five minutes with him and then rushed off to her meeting. She could see that he was really weak and he was always complaining about his health, and so she called the investigating officer to tell her that his health was a concern, and to ask what she was going to do about it. It was not fair to be keep a sick person there without him getting the necessary attention. According to page 14 of Exhibit K she telephoned the investigating officer at 15:17 and the call lasted 116 seconds. Shortly thereafter at 15:22 the investigating officer returned the call and the duration of her call was 105 seconds.

[79] At 15:59 she received another call from Afolabi on a landline at the police station lasting 516 seconds. She cannot remember much of the details of this call, but Afolabi was still complaining about his health and speaking of whether there was a possibility of bail and he discussed his own business and the ambitions that he had. He was going into an AVBOB business, which had come to an abrupt end, and he needed to put the present difficulty behind him. He asked her if it was possible for her to come and see him again, and she said no as she was running late and had to go home and fetch her children. At 18:04 she received a call from Provina, who asked her to stand in for her on Saturday the 19^th during a meeting with the investigating officer and the prisoners’ attorney Mogoeng. The accused told Provina she was unsure if she had any commitments and that she would have to check and would revert to her. At 18:47 she did so during a 2 second call, and informed Provina that she did not think she had anything to do, and would revert to her, but needed to confirm with her husband. She did not do so and then at 19:19 informed Provina that she would go. It was arranged that she would meet the investigating officer and the attorney at the Sandton Police Station between 09:00 and 10:00; she is not sure which of the two.

[80] At 08:23 on the 19^th she contacted Provina and told her that she would be running late as appears from page 124 of Exhibit J, which contains the calls of her official cellphone. She telephoned the investigating officer at 09:19, 10:09 and 10:19 for calls lasting respectively 167, 15, and 15 seconds. These calls were about her delay. She then left Pretoria and proceeded to Johannesburg. She did not go straight from home to the Sandton Police Station since she had some errands to do. At 09:28 Afolabi called her on her private cellphone on a landline from the Sandton Police Station for a call lasting 81 seconds and then again at 09:31 for a call lasting 141 seconds. Page 15 of the Exhibit K indicates that she was in Sunninghill at the time of the 09:28 call, and in Rivonia at the time of the 09:31 call. During the first of these calls she informed him that she would be participating in the meeting and would be there but had some errands. During the second he said that he hoped that she would. She told him that she would be standing in for Provina and he did not need to worry. She was using an official car which had been authorised for the trip. After the call at 09:31 she went “towards like up past” the police station taking the Rivonia offramp, which if one goes to the right one travels to Sunninghill, and if one goes to the left, one approaches the Sandton Police Station. She took the left as the record shows she was in the vicinity of the Sandton Police Station at 09:34 and at 09:35. She did not enter but went past. She had other errands that morning, having to try to get a present for her husband’s birthday which was going to be the next day – the 20^th. She went shopping and thereafter went to the Sandton Police Station at about 11:00.

[81] Outside the Sandton Police Station in a coffee shop she had a meeting with the attorney and the investigating officer. The question of bail was discussed, and the investigating officer said that bail could not be entertained. In any event, she did not have to dwell much on it because it was not her case. They sat there for about an hour and the investigating officer left. The attorney asked if she would mind accompanying him to tell his clients that there was no question of bail. She said that she was not in much of a hurry that she would accompany him, and that there was nothing wrong in this.

[82] They walked into the police station and met his clients. He told them that there was no question of bail and she confirmed what he said. The discussion with his clients lasted for an hour, or an hour and a half; she was not present all the time. She cannot say what else was discussed. She was in and out. Just opposite the cell-commander’s office is a kitchen where a very nice lady works and she used to sit and chat to her; she is sorry to say that she (the accused) is a very friendly person who befriends others very easily. The lady started telling her what the menu was going to be, and how they cooked it, and all that sort of thing. She usually enjoyed drinking water from a mug made of stainless steel, and so she usually enjoyed her chats and water there. There is a call from Mogoeng to her at 12:56, which she returned at 13:31, whilst she was at the Sandton Police Station. This shows that she was not with him at all times and that she was in and out. She chatted to some police officers there and went to the cleaner outside; Mogoeng did not know her whereabouts but she was still in the vicinity. There was definitely no discussion about passports and she and the attorney left just before 14:00. There was no discussion about money and no money changed hands. She did not ask Afolabi for any reward for validating his passport.

[83] From early in the morning she had an appointment with her sister for later in the afternoon. She went to Shell Ultra City where she met her sister and they followed each other in two separate cars to go on a shopping spree to Menlyn to buy food, drinks and presents for her husband’s birthday the next day. After shopping they went home to Fairie Glen. She did not return to Johannesburg after going to Pretoria. She did not receive any calls from the prisoners that afternoon and there was no discussion about her going back to fetch another R2000. They were at the Menlyn Shopping Centre at 16:28.

[84] As appears from pages 18 to 19 of Exhibit K, she was in Wynberg on 21 August; possibly she was in court for her own case, or possibly to check on dates with the prosecutor at that court. She did go to see Afolabi in the cells on the afternoon of the 21^st, but there was no discussion between them about the passport issue, as Afolabi alleges in paragraph 15 of his statement.

[85] She did visit the cells on Saturday the 26th of August, but there was definitely no discussion between her and the prisoners regarding a shortage of funds for petrol. She was at her parents’ home in Diepkloof that morning and in the afternoon she decided to go and check her friend Afolabi, and see how he was doing; it had been some time since she had seen him. She went to check on his health and it was basically a social visit. She was there for about an hour and a half, but was not alone with him in all that time. She socialised with other policemen, went to the cleaner, sat in the kitchen, and did all sorts of things. No money was paid to her and she did not ask for any. Until that stage she had done no favours for the prisoners and would in any event not have done so; the case was not hers.

[86] It is true that her vehicle broke down and had burnt out, but definitely it had not burnt out completely. It happened more or less in September but she cannot be more specific, not wanting to lie. What happened is that her vehicle did not change gears, and went from first to second gear, and would not go to third and fourth gears, and so the revs were very high, and it consumed much petrol. Her car was a Mercedes Benz 190E. She was advised that there was a problem with the gearbox and that a friend of an acquaintance could arrange another one for her, but she did not have the necessary money. However, her father had two cars and her mother could not drive and so one was unused. She called her father and informed him that her car was giving her problems and that her husband David was not at home, and asked whether she could borrow his car. He said yes. She got a lift to her parents’ home and borrowed her father’s car. There was no problem. It was a white Mercedes Benz. She was under no pressure to get another car at all. Her father put no pressure on her.

[87] But prior to that Afolabi had called her some time after work, when she was driving her own car, and it was very frustrating due to the high rev count, and it was consuming petrol, and it was getting hot and she was feeling down about this, being on her own and her husband not at home. He asked what was wrong and she said that her car was really frustrating her, and that she did not have any other help, but that he did not have to worry and that she was just feeling low and very, very frustrated but that it was not a train smash, and that her father would give her a car which she drove at work and everywhere, and she guesses that her colleagues knew that she drove his white Mercedes Benz.

[88] Then Afolabi called her and said that she knew that she was like a sister to him, that he was a friend to her, and he said he had a car which he was going to lend her. She said that he did not have to worry: she was using her father’s car and there was no need. He asked her what kind of friend she was, and whether she was going to throw back his token of friendship. She felt bad, and said that he really did not have to go the extra mile, she did not need it. He said that she was now closing the door between him and her, but he regarded her as a friend and as a sister, and this was his token of friendship, and she felt bad to throw back in his face the olive branch he was offering her; so she said that if he was going to provide her with a car that was fine, and she would return her father’s car. She was already in possession of her father’s car but Afolabi was making her feel guilty, and asked her please to accept his token of friendship for the support and the encouragement she had always given him. He had taken her as a sister and she took him as a friend and as a brother. He needed all the support because he indicated that he was alone here, and did not have any close family and that it was like she was the only person. She said that she would come and take the car now that he said that he had it.

[89] She had difficulty remembering how she had got to the police station. She went there and both prisoners came to see her, but most of the time she was speaking to Afolabi. Afolabi handed her the keys which she thinks he got from Mohamedou. She looked at the keys and saw Europcar, and asked Afolabi if the car was his. He said no, and that he had got it for her. She said that it was a hired car, and asked how Afolabi could do this. At that time Mohamedou left them; she thinks that it was Ramadan and that he was fasting. She sat there with Afolabi for about an hour or just over an hour.

[90] She said to Afolabi that he did not have to go the extra mile for her and that she did not want the hired car. He said no and he started nagging, nagging, nagging. She told him that they had to get something straight: she would only take the car on condition that she would pay for it. He said no and that they would see. She said no, that they had to get the bottom line straight; she would take it on condition that she paid for it; because she did not want to be seen to be abusing their friendship she would not allow him to pay for it. She would definitely pay for it and that was it. She then took possession of the car. She had heard that it had been put as her version to Mohamedou that she possibly received the vehicle on 5 September but she cannot pinpoint the exact date. From the telephone records it appears that she was at the Sandton Police Station on 5 September, but she could have received the vehicle at a later stage. She used it for a week or just over a week, and possibly for longer than a week; she cannot say.

[91] Before 16 September there was most definitely no discussion between her and the prisoners regarding advice given to them in respect of the case and no discussion between her and any of them regarding the negotiations which were in progress in respect of sentence. Initially she had thought that she had received the Polo during the week of the 5^th,or the first week of September, based on the contract the defence had been given by the State, but after Mohamedou’s girlfriend had said that she had driven the car for some days she (the accused) could not have received it on the 5^th. So judging by the record the next time she was in Sandton was the 16^th. Possibly that was the date she took possession of the car. She did drive it for a week, or just over a week, and was then arrested on the 28^th. So she could not have taken it on the 5^th and the possibility or the probability was that she did so on the 16^th.

[92] According to the records she was nowhere near the Sandton Police Station from 5 September until 16 September and she was there on the 16^th. She made a call to Afolabi on that day, a Saturday, at 13:13 for 218 seconds. 15 September was her sister’s birthday. So on Saturday she went there, and called Afolabi saying, hey my friend, we are having a good time here, it is my sister’s birthday, we are having cakes and whatever; all sorts; it was definitely a social call and nothing else. She chatted with him for the 218 seconds, boasting about the fun they were having at her sister’s place and he asked her whether she could please come and see him if she had the time, and she said ok fine, and that in any event there was not much happening that was so serious; she would quickly pop in; she did not mind if he wanted her; she would be there; she had always been there if he wanted her; so she did go. Asked by her counsel, for what purpose, she said that she must say that she and Afolabi were really good friends, and from the record it appeared that for most of the time he was the one that called her. She got very close to him. She went there also to say hey you know thanks for the car that she already got from him, and she brought him some little cookie as a friend to say that he was there, and why could he not have a little bit of what she was also enjoying at her sister’s place.

[93] On 17 September at 19:11 she called Afolabi for 601 seconds. It was a social call, if she remembers well, and during the world cup season. She was at her parents’ house. They talked about football; it was social call; they talked about their children and their families; it was a very social conversation.

[94] On 18 September she telephoned him at 15:05. She cannot remember much of what the call was about, but if she does remember well, that was the time that they had a long operation under cover at a Chinese restaurant in Caesar’s Palace or in Kempton Park at a casino. During the course of that time she called Afolabi to say she was there and tired, because they had sat there the whole day, and did he know that, or that she was so exhausted, that they had been sitting around, but she would be fine. This was what it was– most definitely just a social call.

[95] Page 48 of Exhibit K indicates that the accused was at the Sandton Police Station at 09:57 on 19 September, as well as at 10:14. She had called him on 18 September at 15:28 for 90 seconds. That was a social call at a stage when she was still involved in the operation in Kempton Park. Afolabi was her friend. She called him and said hey I am still here not home yet, and basically it was a social call. On 19 September, if she is not mistaken, she was going to court in Wynberg; so she thought what was wrong in popping in and checking how Afolabi was in respect of his health and whatever. At 18:53 Afolabi telephoned her, and the call lasted for 235 seconds. She and Afolabi were friends and called each other on a very social basis. Either she called him or he called her. They spoke about their families, their children, his health and all sorts of things.

[96] She most definitely did not visit Afolabi on 20 September as he alleges in paragraph 28 of his affidavit. The record at page 49 of Exhibit K shows that she was throughout in the vicinity of Pretoria and nowhere else. She had no conversation with Afolabi about a fine or its reduction. On the 19^th she was with him for about ten minutes. It is not possible to arrive, park one’s car, walk through the entrance, ring the bell at the cells, wait for somebody to open, go into the cells, let the cell-commander go to the cells and bring the prisoners or one of them out, and then talk to them, and then go out again, within that short period of time if they were discussing such a serious matter. She had no discussion with Afolabi on the 19^th regarding a forfeiture order or regarding AFU wanting to bring an application against him. She had no discussion with him about reducing the fine to R315 000. She was not a party to the case, and she would not even have had knowledge of such. She became aware of the amount involved on 28 September, having heard it from Afolabi, but not having heard anything about it before.

[97] In respect of paragraph 29 of Afolabi’s statement regarding a visit by her on Thursday 21 September, page 58 of Exhibit K shows that she was in Pretoria the whole day. It was the day she was in the company of Provina. She and Provina were not really in the mood to work, and were idling, and friends, and so decided to have early lunch together. Around midday they decided to leave the office and did so in a car driven by the accused and travelling to Midrand to Provina’s house. The accused decided to call Afolabi in the presence of Provina because he was for ever nagging that the fine was too high. So she decided to call him and let him speak directly to the person concerned who could perhaps do something about the fine. She said to him in the presence of Provina that here was the right person to talk to, that she was in the company of Provina, and Afolabi said that he would speak to her. She was handing the phone to Provina, who said no, and that she did not wish to speak to Afolabi, and that he should be told that the deal that they had offered him was good, and that he had better take it; that it was the best offer that he could have ever got. The accused then conveyed to him that the person in charge of his case was with her and she was saying that he better take the offer and that it was the best deal they could ever give him. She and Provina then went to Woolworths at Faerie Glen, and she called Afolabi from there, and told him that, as he had heard, there was nothing that could be done about the fine, and that if he wanted to push it further she was really definitely angry. The accused had known Provina for some time. Provina was not impressed and was angry and she conveyed this to Afolabi. She was nowhere near the Sandton Police Station on 21 September.

[98] She cannot really recall the events of 22 September. It was not true that she said that Provina and Ursula needed some kind of appreciation, and it was not true that R10 000 was mentioned. Looking at page 50 of Exhibit K she can now recall that Afolabi called her at 09:13, whilst she was at work, and said that she must come and see him. That was a call in which she spoke to him about his health and all sorts of things and asked whether she could come and see him, her friend. She said she would come and see him.

[99] She telephoned from the garage near the police station to ask whether she could bring him something to drink. She and Afolabi were really friends and she came all the way to see him for a social purpose. They spoke on a social basis, and then he started nagging about his fine being too high and that he could not afford it. She had always maintained that there was nothing she could do about it. She did not ask him what the fine was. That was not of concern. He did not mention the amount of the fine, and just that it was too high. She always maintained to him that, in regard to the fine, she had given him Provina to talk to and Provina had told him that this was the best deal he could get. She said that he was still telling her that the fine was too high, but he was really directing this to the wrong person, and there was nothing she could do about it, and he should address this to the prosecutor, the investigating officer or his attorney; there was absolutely nothing she could do about it; this was not her case; there was no miracle she could do. The fine and the sentence had absolutely nothing to do with her, and there was nothing she could change.

[100] There were no request during this visit for him to pay her any money, or for him to pay any money for her to take over the case and no discussion at all in that regard, but she must say that she was angry. This was because she had taken her time, she was busy, she was at work and took time off work after he had begged her to come and see him; she had gone all the way to the Sandton Police Station to see him only for him to start nagging her again about the same issue about the fine being high in respect of which there was nothing she could do. It really made her very furious and she told him that she had come all this way to see him and that he was still nagging about something in respect of which she had already told him she could do nothing; it was a futile waste of time; she would have not have gone there if he had told her about the fine of which she could do nothing. She was angry because of the time she had taken off work to come and see him. On leaving she sent him sms 1 to say that Provina was angry, and that was a fact, and that he was definitely spoiling their relationship; he should not have nagged her about something that she could not change, or do anything about, and on top of that he wasted her time making her come all the way from Pretoria to nag her and now she had to drive back to Pretoria; it was a big waste of time for her.

[101] She did not telephone him after she left as he alleges in paragraph 37 of his statement. There was no discussion that she should come back at 15:00 to collect R10 000. She had no idea at that stage that Provina would not be available on 2 October to deal with the matter. `She definitely did not tell them that she would arrange to take over the case, and or would most probably be the prosecutor on 2 October. It was not true that she would return on Saturday afternoon to collect R10 000 because she had promised this to her colleague. As to the allegation that she was at the Sandton Police Station at 11:05 on the 22^nd, made in paragraph 36 of Afolabi’s statement, this is not correct; she was not there at all at that time. At 11:31 she telephoned Afolabi from the garage opposite the police station. When she left the police station on the 22^nd she was really, really, angry, and there were no arrangements on that day that she should visit on the Saturday.

[102] She could recall the events of 23 September without having to refresh her memory from the record because what occurred was very close to her heart. Afolabi was a very humble person. He really touched her heart especially because he liked her son; they had something in common – football; so over weekends sometimes when her son was at home Afolabi would speak to him over the phone about football and everything like that. Afolabi asked her to bring her son to him on the 23^rd saying he would like to meet him. That call was made on the 23^rd. It must have been during the morning because she only went there late in the afternoon.

[103] Whilst her cellphone was off there were four missed calls from Afolabi, recorded on page 51 of Exhibit K, at 10:00, 10:01, 10:14 and 10:24 on the 23^rd. When she switched her cellphone on she saw the missed calls and telephoned Afolabi at 11:04, speaking to him for 73 seconds. Then he telephoned her at 12:07, and the call lasted 212 seconds. Afolabi was beginning to panic at that stage, since he would not have the money ready for the fine by 2 October. He told her that he needed her help, that he was really desperate that the only person who could help him was his mother in the UK with whom he had already made contact and who said that she would send the money. He asked whether the accused could do him a favour and get him preferably a South African citizen who would receive the money on his behalf from his mother. The accused thought really this was a friend in need. He said he needed somebody really trustworthy who would not run away with the money because if that happened he would be back to square one. The date of 2 October was coming and was do or die; the money must be there and the fine must be paid. She said that the person she trusted was her own husband, since she stayed with him and since she was sure that he could not run away with the money, and that she would not refer him to anybody else.

[104] Then she asked her husband if he was willing to receive the money. Afolabi said the money would come via a moneygram, and that she should send the details of the person who would receive it together with his identity number. She then smsed to Afolabi the name D M Moepi together with his identity number as is reflected on sms 2. Afolabi confirmed that he received the sms, and that he was going to send it to his mother in the UK. He then called to say that he had just made contact with his mother in the UK, and she was saying that the system required full names and details and was rejecting the D M. She then sent sms 3 which contains the names David Molefe Moepi. Afolabi wanted the full details with the right spelling. According to him the details had to be precise. That was why it was not possible for her to give him the details over the phone. During the telephonic exchanges that Saturday morning he was in a happy mood and they discussed her visit on the 23^rd. She was not sure whether he was happy because his mother was sending the money, or because he was looking forward to seeing her son. He could not wait to see her son.

[105] And so she visited him with her son on the 23^rd. There was no discussion about money which had to be paid to her and she demanded none. There was no need to make threats. His mother was going to send the money through a moneygram; and he was her friend. She denied that she called on the morning of the 23^rd making the demands reflected in paragraph 38 of Afolabi’s statement. She was returning his calls. She at no stage went to fetch R10 000.

[106] In regard to the allegation that whenever negotiations took place regarding the sentences of the prisoners, she informed them of these, she said she was never a party to any of the meetings which took place between their attorney and Paul Louw’s office. She was never present and does not even know how many meetings they had. Paul Louw is the head of the group and in charge and he is the one who allocates cases. She was not kept informed. It would have made no difference to her because it was not her case. She did not even enquire after there had been a meeting what had transpired. She would not even have the nerve to ask because what benefit would that be to her since it was not her case, and she had nothing to do with it.

[107] The monthly meetings at work on a Monday were attended by all the staff of the Scorpions including the police, prosecutors, messengers, clerks, drivers, and typists, but not the tea lady. The meetings start at 7:00. There are ten to twelve groups, and each group has its own head and its own cases. Time is of the essence and they must be behind their desks, starting to work at 7:30. It she had to give the report, Paul Louw would on a Friday inform her. Her group consisted of ten to eleven people including prosecutors, investigators, and Paul Louw. If she had to give a report she would have to go to the other members who did cases which were not hers. The reports are short and usually not more than a page, because each of the ten to twelve groups have to give a report and time is limited. She definitely did not receive any information through the Monday meetings or by other means of what have been negotiated in the case of the prisoners. In so far as information about the case may have been available on the computer system, she had no reason whatsoever to check what was happening there since it was not her case. She is also not a guru in computers and has never even logged in. The system is not one in which a great deal of information can be contained. It has limited blocks of two and a half to three centimetres. It can only give the highlight of a meeting without any detail.

[108] Mohamedou’s evidence that before the prisoners’ attorney reported to them she told them what had happened during meetings was untrue; it did not happen at all. She was never present at the meetings. She never bothered to ask what had happened. She had no reason. She had her own workload to take care of. As to whether there was any particular reason she did not ask Provina or the investigating officer about the negotiations which concerned her friend, she said that to have asked would not have taken the matter any further, and that, knowledge of what they did or what the whole meeting was about, would not benefit her. She had no interest in it at all and it had nothing to do with her. At no stage did either of them discuss any of the negotiations with her. As to paragraph 38 of Afolabi’s statement, on 23 September Afolabi had said that he had been talking to this young man on the phone and could she eventually bring him so that he could meet him and see his face. In these circumstances a threat would have made no sense and is definitely a lie.

[109] She was nowhere near the Sandton Police Station on Sunday 24 September. On Monday 25 September she telephoned Afolabi at 10:38, as appears from page 54 of Exhibit K; the call lasting 113 seconds was a social call. She was not at the Sandton Police Station on 25, 26 or27 September.

[110] On Tuesday 26 September at 12:17 she telephoned Afolabi, the call lasting 19 seconds. Then at 12:20 he telephoned her and the duration of the call was 382 seconds. She had difficulty remembering what was said, but this was the time when his mother was supposed to send the money for the fine, but it is also possible that she does not recall what was said. As to sms4 which was sent at 13:42, there was a conversation between her and Afolabi before she sent it. Afolabi had first started with the moneygram route, and then he stated that his mother said that if the amount came in a lump sum it could not be withdrawn from Rennies or Thomas Cook, since they have a maximum amount which they can give to a person per day. So that would create a hassle for her husband making him go up and down, and that he was not even sure that the money would be here by 2 October when he had to go to court. It was a long procedure. He said also that he had a problem because his mother in the UK, who was not a UK citizen, was required by the agency there to provide a resident of the UK for the sending of the money, and all this could result in delay because now she had to go out and start looking for a UK citizen. So this was causing the delay on his part. During this time her husband had to go to attend to his own business.

[111] Afolabi then said that his mother had now decided to send the money by swift transfer and he now needed a person with either an Absa bank account or an FNB account. She said that unfortunately she banked with Nedbank. He asked whether she could get somebody with such an account, who would not let him down because time was of the essence since 2 October was approaching. She said the only person that she trusted and was close to her was her husband, with whom she stayed and she would ask him to receive the money. She asked Afolabi why he did not get one of his own brothers to receive the money, but he said that it had to be received by a South African citizen who was trustworthy. She asked him why the money was not being transferred to his attorney’s trust account, and he said that he had worked with Indians for quite some time, and he was sure that he did not trust them, they were crooks and they were capable of leaving a person in the lurch at the last minute, when he would be running around like a headless chicken and the attorney not be found. So he did not want to take a chance and that was how she came to send him her husband’s bank details.

[112] She cannot recall whether she actually sent three sms’s to him. She cannot remember what was discussed during the calls of 12:17 and 12:20 on 26 September. Sms 4 however rings a bell with her. That was sent to say that she needed to release David because he had waited. She sent it because Afolabi was delaying Moepi who was actually trying to do Afolabi a favour because the latter was her friend. Moepi did not have any obligation whatever to help convey the money for the fine, he had other commitments of his own to take care of, but because of her and the friendship she had with Afolabi she begged him to wait since Afolabi said that the money would be coming. The moneygram route was the quickest way, but then Afolabi was changing that in a way which was going to hold Moepi back since he was now not going to fetch the money through the moneygram route and there was now another delay resulting from Afolabi and his mother trying to get a UK citizen to transfer the money by swift transfer. All of this delay was being caused to somebody who had his own errands to take care of. Moepi had to be present if the moneygram route, were followed because he had to present himself with his name and his identity number to be the correct recipient of the money. He was then going to pay the fine with the money. She sent sms4 because Moepi was getting angry with her.

[113] After it had been sent she had a 123 second call with Afolabi at 15:20 in which she conveyed that Moepi had to leave. Afolabi begged her not to let him go because the money was about to be transferred into his name and, if he were to go, who would be there to get the money. Afolabi said that there was nobody else who could get the money because it had been sent in his name. During the call Afolabi said that his mother was now sending the money by swift transfer which would be quicker than the moneygram. So she then sent sms 5 to Afolabi giving Afolabi Moepi’s banking details as a result of the change from moneygram to bank account during her conversation with Afolabi. She cannot remember when it was on the 26^th, or on the day before, since he called her on a regular basis. Possibly the request for the banking details came during the 15:20 call on the 26^th. At 18:26 on the 26^th there was a 21 second call from Afolabi to her. This was to confirm receipt of the banking details.

[114] On 27 September she was not in Sandton. At 13:47 Afolabi called her for 273 seconds; she cannot recall what they discussed. Then at 20:25, 20:26, and 20:30 there were three missed calls from Mohamedou’s cellphone. She picked them up on 28 September. It appears from Exhibit N, which is a record of her official landline calls, that she called Mohamedou’s cellphone at 8:09 on the 28^th. This was a courtesy return call by her to find out the reason for them having called her the night before. She wanted to know if anything was wrong, and whether Afolabi was fine. Mohamedou said that there was nothing wrong, and that it was Afolabi who had called the previous night on four occasions. She then attempted to contact Afolabi on his cellphone at 8:23, 8:26, and 8:36. The attempts were unsuccessful. At 8:37 she once again called Mohamdou’s cellphone. She kept on trying Afolabi’s number because the four sms’s in a row of the previous night sounded like somebody was really desperate. She got through to Mohamedou at 8:37 and spoke to him for 4 minutes and 53 seconds. She told Mohamedou that she could not contact Afolabi and asked him to please deliver a message to him that she had returned his call. After that there is no further call on her landline to either Afolabi or Mohamedou.

[115] Afolabi called her at 10:16 on his cellphone for a period of 615 seconds. He sounded very excited and happy because one of the members of his congregation that she had met by the name of Levy had managed to raise money from his church congregation to help him with his legal costs and the payment of the fine. The amount was R40 000 and all his woes and troubles and frustrations were going to get resolved because he did not have the money for the fine and the legal fees and everything else. He said the church people had now left but that he was going to feel better because the money from the UK was coming and the R40 000 had been raised to top up on the money which would be coming from overseas for the fine and the legal fees. He asked her to please to come and fetch the money and keep it for him and said that it was only about two or three days before his appearance in court. He said he only trusted her and God and nobody else at this very late stage. She asked him why he did not ask the police to lock up the money in the safe and write it up in the SAP13. He said that if the money stayed with him one of the policemen was going to take it away from him if they found him in possession of it and that was why he needed her to come and take it. If they confiscated it, it would be a big setback for him because the date of the 2^nd was coming and he needed everything behind him. She said no, and that he should tell the police to keep it in the safe in safe custody. He said that she could not let him down at this late stage and that it was now do or die. He said that if he put the money in the safe there would be a problem – when police officials change shifts things went missing, and that would be really a big setback; so he was relying on her as a trusted friend to keep it in her custody and safely for him to top up the money that would be forthcoming for the payment of the fine and the legal fees on 2 October.

[116] She was very reluctant to go and fetch the money and she did not agree. There was another call from him at 16:17 which lasted 68 seconds at a stage when she was already on her way home. She was already in Murrayfield and he said please, and that he was begging her, that she was his last hope to please come and get the money. She said she could not come then because she still had to fetch her children from school, and that to be stuck in the traffic was really going to inconvenience her and he said that if she did not come she would have abandoned him and it would be as if she would have cut their friendship; he trusted her so much so she could not let him down at this late hour. Subsequently she called him at 16:21 and said ok, now he was really pumping her with guilt, saying she was dumping him as a friend at this last hour. She said that he should give her the benefit of letting her go and fetch her children and then she would see if she would come.

[117] Before then when she had told him to keep the money in the safe, and he had said that everything went missing, she asked him if she could not speak to one of the cell-commanders to allow him to have the money in the safe, and that once it was there there was no way it could disappear because it would have been properly recorded. He said to her that he did not want her to speak to the person and that he already made the necessary arrangements and that he needed her to please come to his rescue and take it.

[118] Between 10:16 and 16:17 there was no contact between the two of them. She did agree at 16:21 to come to Sandton seeing that he was really pumping her with guilt. At 17:54 he telephoned her again when she was in Centurion, the call lasting for 123 seconds. She told him she would drop her children off; she said that now that she had been pumped with fear she felt guilty if she let Afolabi down. It appears from Exhibit K that she was in Centurion at 17:54, and he was now asking her whether she was still coming. She told him to hold on and stop panicking, as it was peak hour and the traffic was going southwards at that time, so he must not panic, she would be coming; he must not worry. He said she must get there quickly because there was a shift change coming and anything could happen, and if the cell-commander came and searched him he was going to find the money with him, and it was going to be confiscated because one was not allowed to have money with them. It is not true that there was a specific time arranged for her to fetch the money. She denies that she was coming to fetch her money or that of AFU. According to Exhibit K at 18:34, when there was a call from Afolabi which lasted 66 seconds, she was at or in front of the police station. He was really panicking. She could feel that he thought that she was not coming, and that he was now going to be in trouble, and she said that he should not panic, and that she was right there, and he should keep cool and she would come.

[119] She, Afolabi and Mohamedou first sat in the cell-commander’s office. She enjoys looking at the CCTV there and the places and the people coming in. The CCTV, if she remembers well, did cover the fingerprint room and she was aware that there were lots of cameras. When she got there she really did not have much leeway with regard to time. She asked Afolabi where the money was and that was when he said that he was going to request it from the cell-commander’s office. She arrived late because he had wanted her to be there by 18:00 when shifts were changed. Because of the traffic she could not make it in time. While she and the other two were together there was a drunk man swearing and yelling and she tried to tolerate him because she was there for Afolabi.

[120] Afolabi started to say that she knows that they are going to court and that the fine was too high, and unfortunately Mohamedou had not been able to raise the R20 000 he was going to need; apparently he had R20 000, but did not have another R20 000, and Afolabi asked if his own fine could be reduced in order to release part of the money for Mohamedou. She asked what the fine was, and he said that his fine was too high, it was R315000, and that was when she realised that this was the fine he was going to pay, and that was why he wanted it reduced, and if that happened he could help Mohamedou from the balance and give him the R20 000 that he was going to need on 2 October. Then she said that he cannot be talking about this at that stage, and that he had had all the time to talk to the investigating officer, to his attorney, and to the prosecutor; that it was at that stage late and nothing could be done, absolutely nothing. He said no, and that the plea agreement could be changed. She said that it was not easy to change a plea agreement overnight, because of the process of drawing up such an agreement, which had to be signed by the prisoner, the investigating officer, the attorney and the National Director as well. So if you wanted to change it where things were in place it was going to be impossible. He was going to court on Monday and that was something he himself could have raised. At that stage it was very late and nothing could be changed and even if he had wanted the fine to be brought down it would not be possible at all because the final word in this regard came from the National Director. So she was sorry; there was nothing that could be done, but she asked if he told his attorney and what did he say. She also reminded him that Provina had said that the deal was the best deal ever and that he had better take it. So that he would be pushing his luck now. What was done was done. All the parties must have signed by that time because the case had to be in court on Tuesday.

[121] He then said that the money was there. The drunk man was really irritating her talking on top of his voice yelling and swearing, and this was really affecting her, so Afolabi said that they should go and sit in the fingerprint room. He took her bag and put it on the table there. She got a bottle of water and drank water. She spoke on the phone. She thinks she was in contact with friends. She did not talk to them about the accused, but it was not as if she was hiding in a corner; once she is in the police station she does not just sit there; there are policemen that she knows and her friend Sello who also works there. So she was checking whether he was around there in the vicinity. That is what she usually does. She does not sit at one place. She chats. She talks. She goes in, checks whether Sello is perhaps working that night, and she did all sorts of things. She guesses that possibly the movement of the video creates a bad perception as if she was panicking or something like that, but she was not.

[122] Afolabi then looked really tired and sick. She asked why should she go and take the money with him in the fingerprint room. So she said he should bring everything into the cell-commander’s office in front of the cameras and everybody else; in the cell-commander’s office was a cell-commander and an inspector who was in charge of the drunk man, and another two or three policemen who had brought a man in, and who they were charging with section 36 or something of that nature. She did not go into the dark or into the fingerprint room. She sat with them in the cell-commander’s office in full view of everybody including the drunk man, because she never suspected that anything was amiss, or that something wrong was going to happen. She asked Afolabi where the money was and he said he had put it inside the bag and she said ok and that is fine.

[123] A lady came in whose name she did not know at that stage. She had a client. She (the accused) is somebody who sparks a conversation very easily at this time of the night, and she cracked the ice. This was a woman friend and she could see that she was an attorney and she had a client who had been arrested. They chatted about general things, nothing specific or intricate. Being inquisitive she saw the man the police had arrested. They took him to another room next door to the cell-commander’s office. She remarked that he had been caught in connection with section 36, and she asked to have a look at what they had got and she started pulling the clothes out and was cracking jokes and chatting with the police as usual. She saw nothing wrong in that regard. She said this item was nice and this nice, and they chattered and laughed.

[124] Then she left them and returned to the cell-commander’s office, and then Afolabi said “your money is here” and she said “ok thank you”. At that stage the woman was also leaving having finished with her client. Before that she had gone out without the bag to check and see whether she could see her friend Sello.

[125] The bag was in the cell-commander’s office with Afolabi. The call on the 28^th in Exhibit K at 19:23 by Afolabi to her occurred whilst she was in the police station and he asked where she was. She was not sitting in one place. She is a move-about kind of person, and Afolabi did not see that she was sitting in the cell-commander’s office chatting. She told him that she was sitting there and that she was not coming back and he must bring everything. She had left the bag in the fingerprint room and it was brought to her in the cell-commander’s office, placed on the desk and at a certain stage she left.

[126] She took a walk as usual since she is not a fidgety kind of person but cannot sit still. The drunk man was irritating her and she was looking for somebody outside, Sello, who is her friend. She then went back because she had to go and get the money. When she got back to the cells she found Mohamedou and Afolabi still sitting on the bench there. She sat with them there and Afolabi was really anxious and looked tired; he was sick; she had compassion and a soft heart for him. She felt that she should not keep him longer than was necessary. Coincidentally, fortunately or unfortunately, the attorney had already finished with her client and was going out. She asked the attorney to hold the bag for her because she needed to fix her dress; it was a light sleeveless dress and she was not sure if she was comfortable and needed to fix it. The woman said that it was not a problem to hold the bag; so they chatted, having cracked the ice a long time ago. They left and they got to the charge office. She asked for her bag in order to go to the toilet. When she came out of the police station she stood for a couple of seconds looking for Sello and she went to her car and greeted the gentlemen there.

[127] At one stage when she and Afolabi were in the fingerprint room, and Mohamedou had gone out, Afolabi said that he thought her bag was small, and that she would need a bigger one to contain the money. She asked him why they should be hiding the money and said that there would be nothing wrong if she held it in her hand. He said that he did not want it that way, and she said the ball was in his court, the money was his and who was she to call the shots. He asked whether she could get a docket to put the money in and she said ok, and went to one of the pigeon-holes and took the docket. She thinks there were none in the cell-commander’s office and that she must have got it in the charge office. In regard to the documents inside the docket, she just picked up the docket as it was, to check what was in the docket was not important to her. She was unaware what the documents inside the docket were. She was not paying attention to where the money was brought from. As at the 28^th she thought Provina was going to appear in court on the Monday. Provina had to appear, who else would?

[128] She was referred by her counsel to Exhibit N, which is the record of her official landline calls, and an entry of a call on 5 September at 10:22 to Afolabi’s cellphone. That was the day reflected on page 36 of Exhibit K as her having been at the police station at 12:49. She had difficulty in recalling what the call at 10:22 was about, but the gist of most of the calls was his condition, which was of great concern to her, because the investigating officer had indicated that she did not really care about his health; she did bring his health to her attention and the investigating officer said that she would take care of it but she never did; his health was deteriorating, really going down and she (the accused) was there as a sort of support and encouragement because really to tell the truth she would feel very bad if he had died under their custody, and when they had the power and means to have done something about it and did not. So the best she could do for him under the circumstances was to visit him, bring him water and whatever he wanted, talk to him giving him the support and the courage to fight on, telling him that it was not the end of the world, and that he would be fine. It was not her duty to approach doctors or take him to hospital; that was something that should have been done by the people who were in charge of him. So the call would have been a social call. She was referred to an entry in Exhibit N, being the record of her landline on 11 September indicating a call between her and Afolabi at 15:11. That was a social call.

[129] Sms 6 was sent because from 23 September Afolabi was not doing anything. At first he said the money was coming by moneygram. Then suddenly there was no moneygram and she sent him the details which he confirmed, and which he confirmed he was sending to his mother. Now suddenly he did not need the details, and it was a waste of time for someone who had errands to take care of. She made her husband wait. Afolabi wanted bank details. She sent the details including the branch code and everything else, and nothing had happened. So between the 23^rd and the 26^th nothing was happening, and her poor husband was still waiting and he was unemployed; he had to make ends meet; he could not just sit and fold his arms; she was the bread-winner at that time, and he needed to help her, and three or four days waiting for nothing was costly to him. He had to go to Lesotho on his own business. He buys and sells things, not on a high scale but what little he can do, since blankets are needed in schools in Lesotho. So if he is able to get two or three he takes them and comes back, and gets more and returns, and it is something then to sit for three or four days where he could have perhaps made a trip or two back already to get more stuff. That was a big waste. She did not send the sms to put pressure on Afolabi to pay. She did not say that the money must be in the account before she goes to court because she was not going to court in any event.

[130] The note contained on Exhibit W in Afolabi’s handwriting and her own came into her possession during the time she was with Afolabi in the cells on the 28^th. Afolabi told her he was very sure that the money was coming. So that she did not have to go around in circles to meet the deadline of the 2^nd she asked him to give her the details of the person who was sending the money, and how much it was, and from what source. Afolabi then wrote his mother’s name and that she was going to transfer ₤25 000 and the other details. She asked him to write it down so that it did not cause confusion when it came in, and she wrote the note about checking with the reserve bank because she did not want her husband to receive “dirty money”. She wished to check the legitimacy of the funds and whether they were the proceeds of money-laundering or some sort of unlawful activity which could get her husband into trouble. The reason she made the note was that she wanted to make Afolabi aware that she was going to check, and that she could not take the risk of receiving money like that out of the air for payment of the fine.

[131] There were random gifts that she received from Afolabi. He would enquire about her son, using the name Sundowner, because of the football they had in common, and ask how he was doing, and how his school was doing, and would ask her to buy him something on her way at Nandos or Mac Donalds or whatever, and she really appreciated that. On 23 September Afolabi had packets of chips and chocolate and biscuits and other things for the boy. So if he did not have them he would ask her to buy him something, and say that uncle John had sent this with pleasure, with love, and that they should be good boys and girls. She received no money for herself. She did no favour for the prisoners in connection with their case. There was no favour in return for the Polo vehicle. There was definitely no mention of withdrawing the case for R315 000.

[132] The prisoners made significant statements before the arrest of the accused to various witnesses who gave evidence before us. Sello Mutaung said that he was a sergeant in the South African Police Services, stationed in September 2006 at the Sandton Police Station as cell-commander. During mid-September the prisoners came to him and said that they were worried and needed him to advise them as to what to do next. The person who related the whole story was actually Afolabi. I disallowed the evidence of what was conveyed to Motaung and later reversed that ruling under the impression that the prisoners had said something to him about the amount of R315 000. After Motaung was recalled, however, he testified that he was informed about the amount of R40 000. I then requested the witness to leave the court room and asked counsel Mr Mohammed, who was leading him on behalf of the State, whether he would be able to throw light on the demand for the amount of R315 000 alleged by the State, and Mr Mohammed answered that he would not. The witness was thereafter excused for giving further evidence. It is significant that at the stage before the sms’s relevant to count 9 were sent, the prisoners had already commenced the process which would lead to their reporting the accused to the authorities.

[133] Moodley testified that he was summoned on 26 September to the Sandton Police Station by the prisoners who informed him that they had tried to contact his partner Maharaj and that they needed to see him urgently. This was, of course, the very day on which Afolabi elicited sms 5 from the accused. Afolabi did the talking and told Moodley that the accused wanted R350 000 paid into an FNB account. Afolabi showed Moodley an sms on his cellphone and informed Moodley that he was paying the money to have his case scrapped, and that the accused was going to take over the case and scrap it against both prisoners. They also told him “that they already got wind of the fact that Portia was, they used the word ‘bullshitting’ them, and they were already speaking to the anti-corruption unit… The station commissioner was working on a so called trap”. They said that they were setting the trap because the accused “is taking monies and she is not delivering”. The word “scrap” was used by Afolabi. Mr Pretorius, who appeared for the accused, put it to Moodley that the two policemen who had testified had said that they heard from Moodley or Maharaj that the accused had promised that the prisoners would get a suspended sentence, and Moodley said that this was possible. Van der Merwe testified that the prisoners informed him that the accused required the payment of R315 000, and not R350 000, and that if this were paid they would be given a suspended sentence. The other policeman, Pieter Lesley Jonker, said that, if he remembered correctly, there was mention made by the prisoners of a suspended sentence. Van der Merwe said there was no mention of the case possibly being withdrawn. It appears from all of this that the prisoners were conveying contradictory versions to different people regarding their dealings with the accused on this issue.

[134] It is clear that the evidence of the prisoners must be approached by this Court with great caution. They are not only accomplices, in respect of whom there is a well-known cautionary rule (See for example S v Hlapezula and Others 1965 (4) SA 439 (A) at 440 D–H), but they conveyed to Moodley on 26 September that the accused had deceived them and that she had not delivered on her promises. This accords with the State’s case that they had at that stage already paid to her the amounts of R10 000 and R3000 reflected in counts 4 and 5, and the rental for the Polo of R6000 of count 6. Moreover, Mohamedou spoke of having paid her various other amounts totalling R40 000. On the State’s case she had failed to deliver on her promise to validate Afolabi’s passport, and she had misled the prisoners in respect of Provina’s presence outside the Sandton Police Station. Exhibit S which consists of the charge sheet and other documentation in the case against the prisoners indicates further reason for great caution. Afolabi pleaded guilty to having placed an advertisement, which was responded to by victims who filled in application forms faxed to them, and then paid money into bank accounts, opened under fictitious names. Furthermore, he pleaded guilty to being in possession of four different passports with different passport numbers, thereby committing fraud by representing to various banks that he was the person mentioned in the passports, when in fact they belonged to other people. Mohamedou pleaded guilty to fraud, and alternatively to theft, in that he caused his victim to be offered a parcel of diamonds and thereafter to make a deposit into an FNB account under a fictitious name. It follows that the prisoners must be viewed as quite capable not only of misleading the Court as to what occurred, but also of manipulating the manufacture or creation of evidence.

[135] In the light of the exceptionally poor credentials of the prisoners, and the obvious weaknesses in their evidence the correct approach is, we consider, to examine what the prisoners and the accused actually did, and to give more weight to that than to what they say. Mohamedou gave his evidence confidently and convincingly, and much of it had the ring of truth. It was quite clear though, that he was untruthful in certain respects. It appears that he was asked by the State to prepare a written statement. He says he did so without reference to Afolabi’s statement, but it is clear that this evidence was untruthful and that he must have had it before him when he prepared his statement. Furthermore, he attempted at various stages to minimise his involvement in wrongdoing. The State and the defence were agreed that we could accept the correctness of Exhibits J, K , L, M, and N, being respectively the records of the accused’s official cellphone, her private cellphone, Afolabi’s cellphone, Mohamedou’s cellphone, and the accused’s official landline. Mohamedou gave his evidence without reference to any of these important exhibits and, possibly as a result of this, and the lapse of time there is confusion in his evidence on dates and times. The accused’s evidence is of course of great importance in this case. She gave lengthy evidence-in-chief, led carefully by her counsel through the objective evidence of telephonic and other contact, and she was thereafter cross-examined at length. In our view, she was an appalling witness, evasive and talkative and brazen. It will be recalled that Mohamedou described her as a demi-god and this description, as well as the conduct he ascribed to her, appear to us substantially consistent with the personality of the accused we observed in the witness box over many days.

[136] Paul Jacobus Louw testified that he joined the Department of Justice in 1987, and that he has served in the DSO since November 2000. The DSO is a multi-disciplinary organisation. They investigate and prosecute organised crime of national impact. The DSO has a head office with various units. There are five regions of which Gauteng is one. In this region are seven to eight groups. He is the group leader of one of these. The accused was a senior state advocate in that group, as was Provina Rughoonandan. They had nine investigators in the group with a large area of jurisdiction, including the geographical area of the previous Transvaal and certain areas outside of that.

[137] The whole group was designated to the case of the prisoners, although a particular prosecutor and particular investigator would work on it. It may be necessary, in the event of unavailability, for someone else in the group to carry out the function concerned. Ursula Herfurth and Rughoonandan were respectively the investigating officer and prosecutor in respect of the prisoners.

[138] The prosecutor plays an important role in the pre-trial procedure, but an attempt is made to avoid a prosecutor becoming too much involved in the investigation, to avoid her becoming a witness. And so an alternative prosecutor may be used for certain functions. The accused was assigned the role of being the lawyer present on the scene when the search warrant of Afolabi’s home was given effect to.

[139] Louw testified that on Saturday morning 23 September, he received a call from a Mr Ruben (this is an obvious reference to the prisoners’ attorney Mogoeng) that Afolabi was desperate to speak to him, and Louw said that he would be prepared to talk once they had sorted out who their legal representative was.

[140] The policy of his office was that they simply did not meet directly with accused persons. Louw said that he was passionate about training, and that he had trained his staff to keep their distance from criminals. He referred to a particular article written by Mr Justice Stephen Trott of the United States Court of Appeals, which he had distributed among his group, and which stated that prosecutors should keep their distance from criminals.

[141] The news of the accused’s arrest was very sad for him. She was very likeable, and she and he got along well; she had a very strong personality and worked very hard. She became a fulltime member of his group two and a half years ago at his request. At the time affecting the prisoners there were only two prosecutors under his control, the accused and Rughoonandan. He would certainly not describe the accused as naïve; she is kind-hearted, but has a strong personality and is street-wise. If a prosecutor assigned to a case were not available it would be common for the other prosecutor to stand in.

[142] It would have been irregular for either of his prosecutors to visit prisoners in jail. It was common practice that one did not talk directly to an accused person if he was represented. This evidence is supported by Exhibit LL, entitled “Ethics A Practical Guide to the Ethical Code of Conduct for Members of the National Prosecuting Authority”. The accused must, overwhelmingly on the probabilities, have been aware of the fact that it was quite improper for her to have direct contact with the prisoners in the way she did, and moreover, that in doing so she must have been putting her career in jeopardy. This is not only the effect of the evidence of Louw but appears also to be confirmed by the evidence of Rughoonandan. The investigating officer, Herfurth, testified that if a prosecutor were to visit a prisoner on a friendly basis it would have been necessary for her to have been apprised of this. She said that such a visit was “ongehoord”. Given all of this evidence, it is quite clear that the probabilities are overwhelming that the accused would not have struck up so close a relationship, as she did with Afolabi, purely for altruistic reasons.

[143] An unfortunate, if not incredible feature of this case, is the evidence of the laxity of the procedure for recording visits which obtained at the Sandton Police Station whilst the prisoners were incarcerated there. There are, we were informed by the State, no reliable records of such visits. We were accordingly limited to the cellphone and telephone records to which I have referred for objective evidence of the accused’s visits to the police station. Mr Mohammed, who appeared as junior counsel for the State, did an analysis of the contacts which the records show between the accused and one or other or both of the prisoners. According to this analysis in the period 13 September to 28 September the accused made 17 cellphone calls to Afolabi. He made 55 calls to her during the period 26 August to 28 September. She made 13 calls to him from her landline from 5 to 28 September. She made two calls on her landline to Mohamedou on 28 September. There were 8 calls made from the public phone at the Sandton police cells to her private cellphone from 18 August to 23 September, and there were 5 calls from 23 September to 27 September by Mohamedou to the accused on her private cellphone; she visited the Sandton police cells on 18, 19, 21, and 26 August, and on 5, 16, 19, 22, 23 and 28 September. This amounts to substantial contact between a prosecutor and awaiting trial prisoners.

[144] The accused denied having received the amounts of R9000 and R3000, and denied all the evidence relating thereto. She denied also having received any of the amounts totalling about R40 000, referred to by Mohamedou, and not reflected in any of the charges. Mohamedou testified, and Afolabi’s evidence indicates, that she failed to deliver on her promise to have Afolabi’s passport validated, and that this failure appears to have contributed to the prisoners’ disillusionment with her, their eventually reporting her to the police and her being trapped with R40, 000. Whilst the evidence of the receipt of the R9000 and her alleged failure to have Afolabi’s passport validated does explain the breakdown in her relationship with him, there is not enough evidence to satisfy us beyond a reasonable doubt that the amounts of R9000 and R3000 were in fact agreed upon or exchanged hands. Moreover, the evidence, and especially the objective evidence, appearing from the cellphone records indicates that the passport incident probably did not occur on 19 August as Afolabi’s affidavit and Mohamedou’s evidence stated. The events may well have occurred on 18 August when there were contacts between the prisoners and the accused according to Exhibit K. Also weighing against the accused are certain facts which emerged during her cross-examination. It appears that on 22 August 2006, when there was only R79.15 in her bank account, she paid a cash amount of R5445.00 into a bank account in payment of the rental of her family’s residence. She had difficulty explaining the source of this money, saying inter alia that it may have come from her father or mother or her husband. We accept in favour of the State that she may well have given untruthful evidence in regard thereto. These factors do not, however, cure the lacunae in the State’s case and the accused must be acquitted on counts 4 and 5.

[145] I turn to deal with count 6. The State sought to prove that Afolabi and/or Mohamedou provided the accused with the Polo vehicle, which she used from about 5 September until her arrest on 28 September. During her evidence –in-chief she stated that she used it for a much shorter period, but this version was not put to Mohamedou. However, it is unnecessary to make a finding in this regard. The accused testified that her arrangement with Afolabi was that she would pay for the use of the vehicle, but that she was arrested before she could do so. Lillian Nkosi Makhubela testified that she knew one Jeff, who worked for Europcar, and that, at his request, she became the nominal signatory to a rental agreement with Europcar, and that her credit card was used in connection with the transaction. The name of the so-called “additional driver” in the agreement is given as Felicia Sobekwa. She is the mother of Mohamedou’s child, and she had the use of the vehicle for about a day, after which it was given to the accused. The accused testified that after her vehicle had broken down she borrowed a Mercedes motor vehicle from her father, and that she therefore needed no other vehicle. However, Afolabi prevailed upon her to accept the use of a vehicle he was providing. At first she thought it was his property, and when she noticed from the key-ring of the Polo that it was a rented car she told him she could not accept it, but he prevailed upon her to do so, and she eventually agreed, insisting that she would pay the rental charge. This version cannot be reasonably possibly true: she says nothing of enquiring as to how much the rental was, and thus how much she would have to pay, and furthermore, she had the free use of her father’s car, making it highly improbable that she would have agreed to pay for the rental of another vehicle. In accepting the use of the Polo she was accepting a gratification for her own benefit, and it was clearly given in order to influence her to act illegally or dishonestly or in an unauthorised or biased way, and she must have received it in the full knowledge of that purpose. She must accordingly be convicted on count 6.

[146] I turn to deal with counts 8 and 10. Both prisoners say that the accused required payment of R30 000 in order to remove the threat emanating from AFU, and R10 000 in appreciation for Rughoonandan and Herfurth allowing the accused to taking over the trial on 2 October. The prisoners also say that she came to fetch the R10 000 intended for Rughoonandan and Herfurth on 22 September, informing them that Rughoonandan was outside the police station, but that their check indicated the contrary, and that as a result they did not hand over the money. They say that after she left the police station on 23 September 2006 at 14:47 she sent sms 1 to Afolabi which read “John, u have really angered pravina n spoiling our friendship”. The accused’s explanation that this referred to Rughoonandan’s anger on the previous day resulting from Afolabi’s attempt to speak to her is very weak and unconvincing. Sms 1 accords overwhelmingly on the probabilities with the version of the prisoners.

[147] But, of course, in regard to these counts, the essential and most material fact is that the accused was arrested just outside the Sandton Police Station, after having left it and been in the company of the prisoners, with R40 000 in cash in an envelope in a docket cover in her bag. On the State’s version that made up the amounts of R30 000 and R10 000 referred in counts 8 and 10. A camera recorded much of her movements in the cell-block housing the prisoners from about 18h42 until she finally left it with the money at 19h43 – a little more than a hour later. During that substantial period of time she removed a fresh docket from the cell–commander’s office or the charge office, as well as blank police forms of various kinds, which were found in her bag and handed in during the trial. Furthermore, she did not take the money from Afolabi, but he placed it in the docket, according to Mohamedou, who did not see how it got into her bag. The camera shows her walking out of one of the rooms in the cell-block at one stage, and looking back in the direction of the envelope and the docket in the bag. All of the aforegoing appears entirely inconsistent with her defence that she was receiving the money in order to keep it in safe-keeping until it would be used to supplement the other money Moepi was to receive to pay a fine. It is relevant to these counts that before the State closed its case I ruled inadmissible a statement the accused made shortly before she was arrested, and indicated that reasons for the ruling would be given later. And it is to this issue that I now turn.

[148] When the accused left the Sandton Police Station carrying her bag in which were contained the docket cover, and the envelope with its R40 000 in cash, she was being awaited by about 10 policemen in plain clothes. Apparently, quite by coincidence, an approximately equivalent number of other policemen happened upon the scene, and got into discussion with the accused, who had placed her bag and its contents on the front floor of her vehicle. There was much confusion, if not danger, created by the presence of the two groups of policemen, all or many of whom were armed and drew their weapons, each group apparently seeking to protect itself against the other. One of those in the group of police waiting for the accused, Pieter Marthinus Van der Merwe, directed his attention to the accused, and asked her to open the front door of the vehicle. He saw the bag and took it out. He placed it on the bonnet of the vehicle and began unpacking the contents of the bag. He asked her about the money and she thereupon made a statement. At that stage the police already intended arresting her because they knew that the operation in the cell-block had been successfully concluded. Only after she had made the statement was she arrested by a one Maseko, a policeman. The accused declined to give separate evidence during the course of the State’s case on the question of admissibility of her statement.

[149] Section 35(1)(a) of the Constitution provides that a person “arrested for … committing an offence has the right … to remain silent”, and section 35(1)(b) that such a person “has the right … to be informed promptly” of such right and “of the consequences of not remaining silent”. In my view, it is clearly implicit in section 35(1)(a) that where the police are about to effect an arrest covered by the section they act improperly if they question the proposed arrestee without informing her that her arrest is imminent, and without informing her of the provisions of section 35(1)(b). Clearly as an experienced prosecutor herself, the accused must have been aware of the contents of sections 35(1)(b), and so non-compliance with the requirements of that provision does not matter. But she was not informed that her arrest was imminent. Mr Broodryk, who appeared for the State with Mr Mohammed, argued that she must have realised that her arrest was imminent. I do not believe that we can make that finding beyond a reasonable doubt, especially given the confusion at the scene which may have been very puzzling to her. And I must accordingly accept in her favour that she made the statement sought to be admitted without realising that she was about to be arrested. It follows that the police acted in contravention of section 35(1)(a) of the Constitution.

[150] Section 35(5) of the Constitution mandates the exclusion of the evidence of her statement if its admission would render the trial unfair or otherwise be detrimental to the administration of justice. The State did not seek to argue that, if the Constitution were breached, the evidence could nevertheless be admitted, following such cases as S v Mkhize 1999 (2) SACR 632 (W), and in my view, neither fairness nor any other factor such as the “no difference” principle (Mkhize at 637 i-j) make it necessary to admit it. Indeed, if I were to approve of the police conduct concerned, I would be encouraging behaviour which Van der Merwe himself conceded was not in accordance with proper procedure. I refrain from expressing a view on the “suspect” cases commencing with S v Sebejan and Others 1997 (1) SACR 626 (W), which were cited during argument. For the aforegoing reasons I remain of the view that it was correct to rule the accused’s statement to Van der Merwe inadmissible. In case my assessors’ agreement may be necessary for my ruling on the accused’s statement, they have throughout agreed with it.

[151] Even without her statement to Van der Merwe the accused must be convicted on counts 8 and 10.

[152] This Court is divided on count 9. I shall first give my views, with which my learned assessor Mr Nkutha agrees, and thereafter read the reasons for his dissenting views prepared by my learned assessor, Professor Whiting. It is significant to note that the objective facts, and especially the contents of sms 1, indicate that the relationship between the accused, on the one hand, and the prisoners, on the other, was at a low ebb on the afternoon of 22 September. Sms 1 indicates that she was angry, and from their perspective she had failed to deliver on her promise to have Afolabi’s passport validated, and she deceived them about Rughoonandan’s presence outside the police station. Clearly now they no longer believed her. It is significant too that Louw received a call on Saturday morning from Mogoeng, indicating that, quite possibly before sms 2 and 3 were sent on 23 September, the prisoners had already complained to Mogeong about the accused having dealt corruptly with them. It is significant also that on 23 September at 10:00, 10:01, 10:14, 10:24 Afolabi attempted to contact the accused on her cellphone, and that she thereafter at 11:04 returned these calls, and also had a further telephonic contact with him lasting 212 seconds at 12:07, and that only after that did she send sms 2. The accused’s version was that during those calls Afolabi invited her to bring her son to the prison that afternoon, and that the arrangements were then made for the receipt of the money by moneygram, resulting in sms 2 and 3 being sent soon thereafter. That version cannot be rejected as false in view of the objective evidence to which I have referred and the fact that a visit by the accused and her son did occur that afternoon. Her version is that he was asking her telephonically for assistance to receive the money necessary to pay the fine, and his version is that the amount she was to receive was to be a quid pro quo for striking off the case. It seems that at that stage the prisoners were acting inconsistently: whilst they were probably complaining to Mogoeng who conveyed to Louw that Afolabi was desperate to see him, they were dealing with the accused, apparently amicably. Furthermore, that the R315 000 was to be used to pay the fine is borne out by the evidence of the State that she had informed them that the fine had been reduced to that sum. Moreover, the main thrust of Mohamedou’s evidence is that the R315 000 was to be used to pay the fine. Significantly, and contrary to the State’s case is that the prisoners gave a different version to Van der Merwe and Jonker of the purpose of the payment. On that version they were to receive suspended sentences. Then it seems to us unlikely that the amount of the bribe would be the equivalent of the amount of the fine. Surely the prisoners would have sought a discount. Significantly also in favour of her version is that Mohamedou testified that she asked the prisoners on the 28^th whether they had told their attorney about the R315 000 and asked what he had said. There is no suggestion that she made a similar enquiry about the R40 000. One of the documents found in the accused’s possession when she was confronted by the police contained, in Afolabi’s handwriting, particulars of the amount of ₤25 000, obviously the equivalent of R315 000, which was to be transferred to South Africa, and in her handwriting, a note that she was to check the legitimacy of the funds with the Reserve Bank. She said she appended that note in Afolabi’s presence to indicate to him that she was going to check the funds. This evidence cannot be rejected as false. All of these factors are more consistent with her innocence than it is with her guilt on count 9.

[153] The accused explained sms4 and sms6 on the basis that her husband was earning very little at the time, and that what little he earned was through travelling to Lesotho, that he appeared to be waiting for nothing, and was anxious to be released. If one views this evidence against the background of the failure of the prisoners hitherto to produce the R40 000 required for Rughoonandan and AFU, it is not improbable that the accused would have doubted their ability to raise the amount of the fine (indeed she expressed such a doubt to the prisoners as appears from para [44] above), and that she would have been anxious to expedite the matter. The prisoners were, however, quite possibly achieving their goal which was to extract sms’s from her concerning the names and the identity number of an individual and his bank accounts details, thereby setting a trap for her. At the stage of sms 4 and sms 5 she was still attempting to extract R40 000 from the prisoners and so had a motive not to refuse their request to receive the amount of the fine.

[154] Most significant about all this is that the actors in the drama we have to assess themselves distinguished between the payments of R40 000 and R315 000. If the former were simply to supplement the fine and costs, as the accused would have us to believe, why did she not simply tell the prisoners to have it deposited in Moepi’s account, rather than go to all the trouble and risk of receiving it in cash herself? And if the State’s version were to be accepted that both amounts were simply payments for the accused’s corrupt favours the same question arises.

[155] At one stage I thought it unlikely that anyone would give any credence at all to paying so large a fine in cash. But counsel appeared to accept during argument that in the absence of cash there is often practical difficulty in effecting payment of fines, and Afolabi and the accused may well have thought that if he wished to pay his fine on 2 October and could not produce the cash, he would be incarcerated, and moved away from the Sandton Police Station to a prison where his release may have been impeded by bureaucratic delays – something to be avoided in view of his very poor health.

[156] At the end of the day, there is a lack of clear, convincing and detailed evidence on what actually occurred in respect of this count. Then there is the not insignificant fact that one of Mohamedou’s versions actually accords with that of the accused. In all the circumstances, the accused’s version in regard to the amount of R315 000 cannot be rejected as false beyond a reasonable doubt, and she is entitled to her acquittal on count 9.

[157] Whiting’s judgment on count 9 reads as follows:

“1. It is not in dispute that it was agreed between the accused and Afolabi that a substantial sum of money coming from the UK would be paid to D M Moepi, who it is clear is the husband of the accused. At first it was intended that the money would be made available to him by moneygram, but later it was decided that the money should be paid into his savings account with FNB.

2. The State case is that this sum of money amounted to R315 000 (or its approximate equivalent in pounds sterling) and was to be paid before the 2^nd October as a bribe for the benefit of the accused in return for her securing the withdrawal of the case against the two prisoners (or having it struck off the roll) on that date.

3. The accused’s version is that the arrangement was that this money was to be received by her husband for the payment of the prisoner’s fine or fines on the 2^nd October and that it was agreed that her husband would personally bring the money to court on that day for this purpose. According to her this had been arranged between her and Afolabi prior to the sending of SMS 2 at 12.21 on Saturday 23^rd September, and remained the arrangement between them up till the time of her arrest on Thursday 28^th September. Indeed, she maintained that it was only on that day that she first heard of the amount involved.

4. In support of its case the State relied on the affidavit of Afolabi, particularly paras 31 to 34 thereof. Mohammedou, however, gave differing versions of why the money was to be paid. In the course of examination- in-chief he supported both the version of the accused and that of Afolabi. Later he gave further versions – that the money was to be paid so that they would get a suspended sentence or so that some of the charges would be withdrawn – while also continuing to vacillate between the other two versions. Eventually he adhered to his affidavit Exh U (1), which is to the same effect on this aspect as the affidavit of Afolabi. While his support for the accused’s version may be explicable on the basis of his reluctance to admit to any wrongdoing on his own part, it is clear that no reliance can be placed on Mohammedou’s evidence as to the purpose for which the money was to be paid to Moepi.

5. It is clear that the evidence of Afolabi, before the court only in the form of an affidavit, must for a number of reasons mentioned in the main judgment be treated with great caution. However, substantial support for the State case is provided by SMS’s 4 and 6. They are clearly irreconcilable with the accused’s version. If, as the accused maintained, her arrangement with Afolabi required that Moepi be present on the 2^nd October so as personally to bring the money he had received to court, why was she saying - while this arrangement remained unaltered – that he would have to go to Lesotho for two weeks? And why should she be saying on Tuesday 26^th September, at 2.05 pm, that “nothing is happening” when the earliest that the money could have been transferred from the United Kingdom would have been the previous day? On the other hand, on the State case it makes good sense that the accused would have been putting pressure on the prisoners to ensure that the money would be paid to Moepi as soon as possible.

6. There are other considerations which count heavily against the accused. It is most improbable that an honest prosecutor would – particularly without informing her superior or a colleague – have arranged for her husband to assist an accused with the payment of a fine in the way she claims to have done. It is much more improbable that a dishonest prosecutor – as she clearly was – would have arranged with a person with whom she was in a corrupt relationship for money to be paid to her husband for the innocent purpose of paying a fine. Furthermore, it makes no sense that the prisoners would have agreed to pay R10 000 for the accused to take over the case from Ms Rughoonandan if the payment of the money to Moepi was simply to enable him to act as a conduit for the payment of their fines, for he could equally have done this if Ms Rughoonandan were still acting as prosecutor. Moreover, if – as the accused was maintaining to the prisoners – the payment of R10 000 was to be for them to show their appreciation to Ms Rughoonandan and Ms Herfurth, one would surely expect that the accused would also have wanted them to make a very much larger payment to her or her nominee to show their appreciation to her for taking over the case and securing benefits for them.

7. Against these considerations must be weighed the version of the accused that the payment to Moepi was to be for the innocent purpose of facilitating the payment of their fines. The accused was an extremely poor witness, and her evidence was replete with instances in which she sought to counter incriminating material with explanations not worthy of belief.

8. When one weighs one side against the other, the conclusion is inevitable that there is no reasonable possibility that the version of the accused is true. The considerations mentioned above are overwhelming in their cumulative effect. They lead inescapably to the conclusion that there can be no reasonable doubt that the money was, to the knowledge of the accused, to be paid to Moepi for a corrupt purpose, namely to influence the accused to seek, in breach of her duty as a prosecutor, to provide an improper benefit for the prisoners. Indeed, it is equally clear that the accused both offered and agreed that the money be paid in this way for this purpose.

9. However, it should be noted that the abovementioned factors which are decisive against the accused do not afford an indication as to what precisely was to be the quid pro quo for the corrupt payment to Moepi. They are neutral as to whether the payment was to be for the withdrawal of the whole case against the prisoners or merely some of the charges against them, or whether it was to be in return for their getting a suspended sentence or some other corrupt benefit. In view of this and in the light of the evidence as a whole, it is not possible to make a definite finding as to the particular form which the corrupt quid pro quo was to take. However, this should not stand in the way of a conviction on Count 9. In all the circumstances, the accused should be found guilty on this count on the basis that she offered and agreed to accept a gratification in the sum of R315 000 from one or both of the prisoners to be paid to her husband in order for her to act or to influence her to act corruptly and dishonestly to achieve an unjustified result in the criminal prosecution against the prisoners on 2 October 2006.

10. It remains to State that in my opinion there are a number of weaknesses in the majority judgment. Of these I shall mention two, which I consider to be fundamental. The first is that the judgment fails to recognise the extent to which SMS’s 4 and 6, particularly the former, run counter to the version of the accused. The second is that the judgment fails to give consideration to the other factors which I have mentioned as operating decisively against the accused.”

[158] Count 11 can be briefly disposed of. The allegations relating thereto appear in paragraph 38 of Afolabi’s statement and are supported by no other evidence, and are denied by the accused. In the circumstances, the State failed to discharge its onus in regard to that count.

[159] I proceed to deal with count 1. Exhibit “C” is a document headed “FINGER PRINTS FOR SECURITY CLEARANCE”. It provides for the fingerprints and signature of the person concerned. It is signed by the accused, and contains the question:

“IF YOU HAVE EVER BEEN CONVICTED OF ANY OFFENCE STATE PLACE, DATE AND SENTENCE.”

Mphengwa Alfred Manabalala testified that he completed Exhibit C and wrote the word “no” in answer to the question. This meant, he said, that he must have asked her if “she had been charged”, and she must have answered in the negative. There is no reason to reject this evidence. The accused left with the document and it bears the word “no” in Manabalala’s handwriting. The document was prepared for obtaining security clearance. Clearly in signing it the accused acted with intent to represent that she had no previous convictions, and clearly the National Prosecuting Authority and the DSO, for which the document was intended, were prejudiced, or potentially prejudiced, by the representation if it was false, since the document was intended to assist these bodies in determining whether the accused constituted a security risk or not. The accused admits that the document was handed to the National Prosecuting Authority, and that she was convicted of theft on 28 February 1991, and sentenced to R450 or 3 months’ imprisonment, as well as 3 months’ imprisonment suspended for 4 years on condition that she not be convicted of theft or attempted theft committed during the period of suspension. The accused’s defence is that she was with a friend whose bag she was carrying when they were apprehended and an item was found in the bag which had, if I understood her correctly, accidentally not been paid for. When she appeared in court the prosecutor and the interpreter on duty told her to agree to everything, and that she would be fined R450, and there would be no repercussions. She understood that she would have no conviction as a result of what occurred. She testified that she remembers nothing or very little of what happened when the Magistrate was present. She said that she had indicated to her previous employers, the South African Revenue Service and the Department of Foreign Affairs, that she had no previous convictions and this had never been queried. Save for what she says about her previous employers, her version is highly improbable. The accused has a selective memory. She recalls what happened before the Magistrate entered the court room but not what occurred while he presided. Furthermore, her evidence of having pleaded guilty to an offence she did not commit, is entirely at variance with her strong personality, and is highly improbable. Then there is the factor of her very poor performance in the witness box. We have no hesitation in rejecting her defence as false beyond a reasonable doubt. All the elements of the crime of fraud are proved, and the accused is accordingly guilty on count 1.

[160] In respect of count 12 the accused admits that when she applied for bail in this matter on 9 October 2006 she stated in an affidavit handed in that she had no previous convictions. That allegation was false, and the accused’s defence of having acted in good faith and in the belief that she had no previous convictions, cannot be reasonably possibly true for the reasons given in respect of her conviction on count 1. She must in the result be found guilty on count 12.

[161] In the result, the accused is found guilty on counts 1, 6, 8, 10 and 12 and not guilty on counts 4, 5, 9 and 11.

For the accused: J D Pretorius

Instructed by: Maponya Inc

For the State: H J Broodryk SC

F Mohammed

Dates of hearing: 16, 23, 24, 25, 26, 30 April 2007

2, 7, 10, 14, 15, 16, 17, 21, 22 May 2007

30, 31, July 2007

1, 7, 8, 10, 13, 14, 22, 23, 24, 27, 28, 31, August 2007

3, 4 September 2007

Date of judgment: 19 September 2007

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

CASE N0: 2006/296

In the matter between:

THE STATE

And

KGANTSI, PORTIA REFILOE

________________________________________________________________

JUDGMENT – SENTENCE

GOLDSTEIN J:

[1] The accused is 40 years of age. When she was arrested her job title was Senior State Advocate, and she worked in the Directorate of Special Operations (“the DSO”). Some of the history of her career appears from paras [74] and [75] of the judgment I delivered on 19 September. Her counsel informed me that she is married with 3 children, aged 12, 6, 4, that her husband intends divorcing her and that has she lost everything as a result of this case; she will be discharged from her employment. She will not be able to practice her profession for which she has studied so much. Her children are cared for and supported by her parents. She was the sole breadwinner of her family. Her husband does not earn much, and since her arrest he has not assisted her parents with the support or care of their children. Both her parents are pensioners; her father is 69, and mother 66. They have reached the end of their means, and it is uncertain how long they will be capable to continue caring for the children. She has chronic ulcers and a medical condition called slow bowel movement. She needs special medication and food which are not normally provided for in prison. Her brother-in-law is prepared to employ her and so there is a prospect of her once more becoming a productive member of society.

[2] Count 1 involved a false statement denying her previous conviction of theft. This is a serious crime. The complainant clearly had an interest in ensuring that only persons of integrity be appointed to, or retained in, the position of senior state advocate. In my view, the proper sentence in all the circumstances for a crime of this seriousness is 2 years’ imprisonment. Count 12 involved the same misrepresentation as that in count 1. That crime is also a serious one and the proper sentence there is 1 year’s imprisonment.

[3] Counts 6, 8 and 10 involve corruption. In S v Shaik & Others [2006] ZASCA 105; 2007 (1) SACR 247 at 319e–j the following is said about this very serious crime:

“[222] The Constitutional Court in South African Association of Personal Injury Lawyers v Heath and Others [2000] ZACC 22; 2001 (1) SA 883 (CC) (2001 (1) BCLR 77) at para [4] said the following:

'Corruption and maladministration are inconsistent with the rule of law and the fundamental values of our Constitution. They undermine the constitutional commitment to human dignity, the achievement of equality and the advancement of human rights and freedoms. They are the antithesis of the open, accountable, democratic government required by the Constitution. If allowed to go unchecked and unpunished they will pose a serious threat to our democratic State.'

[223] The seriousness of the offence of corruption cannot be over-emphasised. It offends against the rule of law and the principles of good governance. It lowers the moral tone of a nation and negatively affects development and the promotion of human rights. As a country we have travelled a long and tortuous road to achieve democracy. Corruption threatens our constitutional order. We must make every effort to ensure that corruption with its putrefying effects is halted. Courts must send out an unequivocal message that corruption will not be tolerated and that punishment will be appropriately severe. In our view, the trial Judge was correct not only in viewing the offence of corruption as serious, but also in describing it as follows:

'It is plainly a pervasive and insidious evil, and the interests of a democratic people and their government require at least its rigorous suppression, even if total eradication is something of a dream.'

It is thus not an exaggeration to say that corruption of the kind in question eats away at the very fabric of our society and is the scourge of modern democracies. However, each case depends on its own facts and the personal circumstances and interests of the accused must always be balanced against the seriousness of the offence and societal interests in accordance with well-established sentencing principles.”

[4] There are seriously aggravating circumstances in respect of the corruption counts. Here was an advocate, an officer of the Court, and a member of an elite crime fighting unit herself committing these very serious crimes. Moreover, counsel for the State informed the Court that the DSO had a strategic plan to eradicate corruption in the criminal justice system. She tarnished the reputation of the DSO and of her colleagues, and indeed, of the criminal justice system. In the case of count 6 she had the effrontery to drive the Polo openly and even take it to work. Furthermore, she brazenly conducted her corrupt relationship with the prisoners in the Sandton Police Station under the very noses of the police there.

[5] Count 6 involved the corrupt receipt of a benefit of R6000. Here the quid pro quo for the money was the continuation of the corrupt relationship between the accused and the prisoners. Taking account of all the circumstances, I consider 4 years’ imprisonment the appropriate sentence.

[6] Count 8 involved the corrupt receipt of R30 000. If she is a “law enforcement officer” in terms of Act 105 of 1997, the minimum sentence is 15 years’ imprisonment unless substantial and compelling circumstances dictate otherwise. I find it unnecessary to decide this point, because the crime of corruption committed here is serious enough to warrant long term imprisonment, and if the minimum sentence does apply there are substantial and compelling circumstances justifying a lighter sentence than the prescribed minimum. But I do have grave doubts whether the accused in fact was such an officer. The quid pro quo for the receipt of the money was that the Assets Forfeiture Unit (AFU) would not seek to attach Afolabi’s assets. We have heard no evidence that AFU intended to do so, and thus it seems that the accused did not actually change the course of the administration of justice. But of course, the crime remains extremely serious. I consider 10 years’ imprisonment the appropriate sentence.

[7] In count 10 the amount involved is R10, 000. Here the accused promised to take over the case as prosecutor. It seems that she may have done so, but if this had occurred, it would probably have happened because she and Rughoonandan were the only prosecutors in Paul Louw’s group, and Rughoonandan had to appear in another court. It seems doubtful whether she would have been able to affect the course of the prosecution in any way. This count is very similar to count 8, but given the smaller sum involved, it seems that the appropriate sentence is 8 years’ imprisonment.

[8] The cumulative effect of the sentences must be considered. The total of 25 years’ imprisonment is clearly excessive, and must be reduced. In considering the extent of the reduction I regard as aggravating Afolabi’s poor health. This made him extremely vulnerable and desperate and the accused exploited and preyed on those weaknesses. Extremely aggravating is the fact that as an advocate she is an officer of the Court and every officer of the Court is expected to maintain at all times the highest degree of integrity and honesty. Then there is the mitigating fact that she has spent a year in prison awaiting trial. I am prepared to accept in her favour, following the view recently expressed by a Full Court of 3 Judges of this Division, that the period she spent in prison ought to be doubled and therefore regarded as 2 years. Then I accept as mitigating the fact that she is a mother of young children, that her marriage has broken down, and that she has lost the prospects of what appears to have been a promising career, together with all the considerable status that a senior state advocate must enjoy. I intend ordering the sentences on counts 8 and 10 to run concurrently. A disturbing feature of this case is that each of the crimes I am concerned with involves gross dishonesty. I intend to address this problem by suspending the remaining sentences of imprisonment in an attempt to prevent the accused from committing further criminal dishonest conduct after her release.

[9] On 26 August 1999 I gave a judgment in S v Vilikazi & Others 2000 (1) SACR 140 (W) in which I drew attention to the sentencing problem which arises where an accused is kept in prison awaiting trial and before sentence. At that time section 32 (1) of the Correctional Services Act 8 of 1959 prevented the ante-dating of the sentence to the date of the arrest. I said the following at 141h – 142i:

“A major difficulty which arises is that all three accused have been in prison for about two years. Accused No 1 was arrested on 23 June 1997, accused No 2 on 24 June and accused No 3 on 18 August 1997. It follows that the accused are entitled to my taking account of the substantial period of about two years which each has spent in prison awaiting trial. If I do so the sentence of imprisonment which would be appropriate in each case must be reduced to take account of the period the accused concerned has spent in custody and self-evidently each sentence must be reduced by at least such period in order that justice be done.

A difficulty which arises is that the official sentence of this Court is then approximately two years lighter than it should have been in each case. This lighter sentence then becomes part of the particular accused's official record of previous convictions, thereby possibly misleading any court which may subsequently convict him, and also the prison authorities on the seriousness of his crime. Then, too, the lighter sentence misleads the news media and more importantly the public which has an important interest in sentence, and especially in its deterrent function.

In the present case the difference as a deterrent between say 20 years' imprisonment and 18 years' imprisonment in the case of murder is in my view a significant one. In regard to accused No 1 the problem is perhaps even more serious. If a proper sentence of being an accessory is, say, three years, I am obliged to impose one year in his case. If a proper sentence were two years' imprisonment, in order to do justice I would simply have to set him free today.

A further difficulty arises. The learned author S S Terblanche says the following in The Guide to Sentencing in South Africa at 236-7:

'If the accused is held in custody while awaiting the completion of the trial, it should be taken into account when the duration of the sentence is determined. It is not certain to what extent this should be taken into account. The courts have stopped short of saying that the term of confinement whilst awaiting trial should be subtracted from the term of imprisonment which the court considers appropriate, but in practice this is probably the basic intention.'

Terblanche's perceptive observation that whilst our courts take account of time spent in prison awaiting trial, they have stopped short of simply subtracting such time from the sentence imposed, raises the interesting question as to why this is so. It seems to me that the reason may well be that a simple subtraction often results in an odd period of time which will almost invariably include days. So, for example, if an appropriate sentence were 20 years and an accused had spent one year, two months and seven days of such period awaiting trial he would have to be sentenced to 18 years, nine months and 23 or 24 days if effect were given to simple subtraction. Such a sentence would fall strangely on the public ear and would indeed appear absurd. And so in my view the courts are driven to eschew simple subtraction and fudge the period of awaiting trial, thereby doing substantial but perhaps less than perfect justice.

The reason for this unsatisfactory situation lies in the wording of s 32(1) of the Correctional Services Act 8 of 1959 which provides for a sentence of imprisonment to take effect on the day it is passed, and which prevents the sentence being ante-dated in any way. See S v Hawthorne en 'n Ander 1980 (1) SA 521 (A). Cf s 282 of Act 51 of 1977 (as amended).

In my view the legislation concerned ought to be amended to provide for the ante-dating of a sentence to occur to the extent of any time spent in custody awaiting trial. If this were done all the problems I have referred to would, it seems, be resolved.”

[9] I added the following in Vilikazi after imposing sentence:

“The Registrar is kindly requested to furnish the South African Law Commission with a copy of this judgment and a request that it consider advising the amendment of s 32(1) of Act 8 of 1959.”

[10] The Legislature repealed Act 8 of 1959 with effect from 31 July 2004 in the Correctional Services Act 111 of 1998, and section 39 (1) of the latter Act is in substantially the same terms as section 32 (1) of the former Act. And so after more than 8 years the problem remains. In the present case if the accused had been convicted only on count 12 for which I have imposed 1 year’s imprisonment I would probably have had to caution and discharge her - a sentence which would have been quite inadequate. I shall at this end of the sentence I impose today essentially repeat, with two additions, the request to the Registrar made so long ago.

[11] In the result the sentences I impose are as follows:

A 1. On Count 1 2 years’ imprisonment

2. On Count 6 4 years’ imprisonment

3. On Count 8 10 years’ imprisonment

4. On Count 10 8 years’ imprisonment

5. On Count 12 1 years’ imprisonment

B 1. The sentences imposed on counts 8 and 10 are to run

concurrently.

2. The sentences imposed on counts 1, 6 and 12 are suspended for 5 years on condition that the accused is not convicted of a crime involving dishonesty committed during the period of suspension.

3. The effective period of imprisonment is thus 10 years’ imprisonment.

The Registrar is kindly requested to furnish the South African Law Commission and the Minister of Justice with a copy of this judgment and a request that they consider the amendment of s 39(1) of Act 111 of 1998, and of s282 of Act 51 of 1977.

For the accused: J D Pretorius

Instructed by: Maponya Inc

For the State: H J Broodryk SC

F Mohammed

Date of Hearing: 21 September 2007

Date of Sentence: 21 September 2007

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