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POSSESSION OF FIREARMS BY A GROUP

ALTERNATIVE DISPUTE RESOLUTION

COMMON PURPOSE

THE JURY IS OUT (CONSIDER THE VERDICT)

SENTENCING-SOME MITIGATING FACTORS

CIRCUMSTANTIAL EVIDENCE

THE DOCTRINE OF RECENT POSSESSION  

PLANNED OR PREMEDITATED MURDER-GUIDELINES

UNDERCOVER OPERATIONS OR TRAPS


 

MATTERS OF INTEREST

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


 

As an acting Judge of the High Court, I delivered a number of judgments in different divisions of the High Court. Many of these judgments deal with interesting aspects of the law and they are available for download on this page.

  1. H.Michaels and the State-Appeal-Cautionary approach to evidence
  2. The State v J. Joseph-Review-Sect 112(1)(b) of Act 51 of 1977-Family Violence Matters
  3. The State v T. Mzandi-Review-Housebreaking and Theft (absence of contrectatio)
  4. J.April and the State-Appeal-Discrepancies in evidence-approach on appeal
  5. M.Y. Hendricks and the State-Appeal-Identification-approach
  6. Archvisi National & 1 other v Divine Inspiration-Provisional Liquidation-principles
  7. H.R.Bauman NO & 1 other v Erf 27283 Sunset Links-Absolution from the instance
  8. B.Blanckenberg v E.M.M Williams & 1 other-Costs in a postponement application
  9. Bovidae Investments v J.H.Nel & 3 others-Anton Piller order
  10. M.Lechner v RAF-Medical expenses-system in Germany- Krankenkassen-Deductible collateral benefits or not
  11. C Mgatyellwa & 2 others v Victoria & Alfred Waterfront Properties & 1 other-Interpretation of an indemnity clause
  12. R. White and the State-Appeal-Defects in appeal record
  13. The State v S. Plati & 1 other-Identification-photographs
  14. The State v N. Gqalane and Others-Hearsay evidence-s.3 of Act 45 of 1988

The Supreme Court of Appeals upheld the finding in Lechner v RAF in RAF v Lechner (2011) The benefits awarded are not deductible.

 

 

 

Possession of firearms by a group

 

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

 

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

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

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

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

 

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

 


ALTERNATIVE DISPUTE RESOLUTION or
THE ALTERNATIVE TO LITIGATION

by Adv Danie Theunissen


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


Alternative Dispute Resolution (ADR)


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


Mediation


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


Arbitration


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

 

 


 

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

COMMON PURPOSE

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

The Court stated at 607:

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

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

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

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


 

THE JURY IS OUT (CONSIDER THE VERDICT)

See the article on Common Purpose and Possession of Firearms’ and decide for yourself what the outcome of this matter was. The facts are based on an actual case heard recently in the Western Cape High Court.

THE CHARGES AND PLEA

The accused, a 38-year-old male was arraigned on the following counts:

Count 1- Murder (the death of a Fidelity guard).

Count 2- Murder (the death a member of the group that attempted to perpetrate the robbery at a service station)

Count 3-Robbery of a firearm.

Count 4- Attempted Robbery of an amount of cash.

Count 5-Attempted Murder of another Fidelity guard.

Count 6- Attempted Murder of yet another Fidelity guard.

Count 7- Attempted Murder of a police official.

Count 8- Unlawful possession of three firearms.

Count 9- Unlawful possession of an unknown quantity of ammunition.

The accused pleaded guilty to Counts 4, 8 and 9 and not guilty to Counts 1, 2,3,5,6 and 7 He was convicted in terms of s.112 (2) of the Criminal Procedure Act on Count 4. The State did not accept his plea on Counts 8 and 9 and pleas of not guilty were recorded.

A number of formal admissions mostly concerning certain procedural formalities were made by the accused in terms of s220 of the Criminal Procedure Act

THE BASIS OF THE ACCUSED DEFENCE

In essence, the defence on Counts 1, 2, 5-7 amounted to a denial by the accused that he had the intention in any of its relevant forms to kill any of the persons referred to in the indictment. The accused also denied that he had any specific knowledge of the circumstances in which the alleged crimes were committed. In respect of Count 3, the accused denied that he had the intention to rob the Fidelity guard of a firearm and that he had any specific knowledge of the circumstances in which the firearm was taken.

THE FACTS PRESENTED TO THE COURT (THE BROAD SCENARIO)

The evidence presented by the State was not in dispute nor was the credibility of witnesses in dispute. The witnesses were involved in the incidents at different points in time and had different opportunities to observe. As a result, they did not observe everything that took place. The broad scenario of what took place as indicated by the evidence and the facts, which are common cause, or not in dispute are the following:

  1. At approximately 9h 30 on the day in question, a group of men (7 in total) approached the particular service station. Some of the men were armed with firearms.
  2. Some of the men (including the accused) entered a shop on the premises and waited for the Fidelity Van containing a number of guards to arrive to pick up cash, which had been deposited in a cash box and was stored in a drop safe on the premises.
  3. The Fidelity Van arrived and the guards alighted and proceeded to attend to their duties. The one guard was responsible for retrieving the cash box and was in the process of doing so. Another guard positioned himself near an ATM and the third guard placed himself in the driver’s seat of the vehicle.
  4. Shots were fired and one of the men in the group removed a guard’s firearm from a holster at his side. A number of the group surrounded that guard and attempted to get him to open the drop safe.
  5. At the same time, the members of the group in the shop left the shop and further shots were fired.
  6. The owner of the service station also fired a shot from the inside of the kiosk with his personal firearm.
  7. Shots were also fired by members of the group at the guard near the ATM. None of the shots struck him and he managed to flee from immediate danger unscathed.
  8. One of the members of the group fired shots at the guard who was seated in the Fidelity Van. The shots did not penetrate the heavy armour of the vehicle. The guard managed to drive the vehicle away from immediate danger and was unscathed.
  9. The members of the group who attempted to retrieve the cash box were unsuccessful, as the drop safe was not released. In the process, the guard they had overpowered was shot in the abdomen and remained on the scene whilst the group attempted to flee the scene by running around the back of the service station to a nearby township.
  10. A police official, who was in the vicinity when the incident took place intercepted the group and fired shots at the fleeing members. The very first shot struck the accused and he fell down near a number of telephone booths. The remaining members of the group fled towards the township whilst shots were exchanged between the group and the police official. A number of shots were fired in the direction of the police official but none of them struck him.
  11. One of the group, was shot in the back and subsequently fell down after crossing the railway line near a house on the border of the township. The rest of the group escaped.
  12. Both the security guard and the fleeing robber died as a result of the injuries they sustained during the incident.
  13. The accused who remained on the scene was taken to hospital and treated for the injuries that he received during the incident.
  14. A 9mm pistol was found a few metres away from the accused.
  15. A number of cartridges of varied calibre and description were found at various places on the scene.
  16. A Kimar gas operated pistol and a .38 special Rossi revolver were found in a field at the back of the service station. This was near the route taken by the fleeing group who were engaged in a shoot-out with the police official.

RELEVANT FACTS ESTABLISHED BY THE EVIDENCE

The evidence lead by the State and the accused established the following facts:

Count 1

  1. There is no direct evidence indicating who shot the deceased security guard.
  2. It is clear from the totality of the evidence that he was shot during the engagement with members of the group when attempting to open the drop safe.
  3. The guard sitting in the Van testified that a shot went off and he saw red in the vicinity of the deceased’s back.
  4. It was not a reasonable possibility that someone other than one of the robbers shot the deceased.
  5. The evidence indicated that there was no resistance by the security guard at the time and no logical reason to justify the actions of that particular member of the group.
  6. There was no evidence that the accused shot the deceased.

Count 2

  1. The evidence indicated that one of the fleeing robbers was fatally wounded when he, together with other members of the group attempted to flee the scene.
  2. At this time, the accused was not part of the fleeing group and lay wounded near the telephone booths after receiving several bullet wounds.
  3. The members of the group and a police official were exchanging fire when the robber was wounded.
  4. All the facts indicated that the fleeing robber was shot by the police official when he returned fire at the group who were firing at him.
  5. There is no evidence to indicate that the accused shot at the police official or was engaged in any activity that made it necessary at that time for the police official to shoot the fleeing robber.

Count 3

  1. A tall slender man grabbed the firearm from the security guard.
  2. The accused did not take the firearm and was not directly involved in the taking thereof.
  3. From these circumstances, it can be concluded that one of the group took the security guard’s firearm during the incident. It is common cause that this was a 9mm pistol.
  4. The taking of the firearm merely involved one of the group approaching the guard from behind and removing the firearm from a holster at his side. The evidence does not indicate whether that member was armed at the time or that there were any threats or force involved.

Count 5

  1. Some of the group fired shots at the guard near the ATM.
  2. Some of the bullets struck the ATM in his vicinity.
  3. There was no evidence that the accused was involved in the shooting of the guard at any stage of the incident.
  4. The guard offered no resistance and despite the fact that he was armed at the time did not fire any shots.
  5. The only reasonable inference was that members of the group attempted to kill him. He was however not injured during the incident.

Count 6

  1. A member of the group fired a shot or shots at the guard in the Van.
  2. The shots did not penetrate the armour of the vehicle in which he was seated at the time. According to his testimony, it would have struck him on his right side.
  3. The accused was not involved in the shooting of this guard and was on the opposite side of the vehicle at the time.
  4. The guard had not offered any resistance at the time and had not given his assailant any reason to fire directly at him.
  5. The accused fired a single shot directed at the rear of the vehicle on the passenger side. The shot was not directed at the guard and did not place his life in jeopardy.
  6. A member of the group fired shots at the guard and as a result attempted to kill him.

Count 7

  1. Members of the group fired at a police official during an attempt to escape from the scene.
  2. The evidence did not indicate that the accused ever fired at the police official.
  3. The accused was not part of the group involved in the shooting at the police official.
  4. None of the shots fired at the official struck him but the circumstances justified as the only reasonable inference that an attempt was made by members of the group to kill him.

Count 8

  1. The accused had physical possession of the 9mm pistol referred to in the indictment.
  2. Other members of the group including the deceased robber also possessed firearms.
  3. The two firearms referred to in the indictment were found in an open field near the escape route used by members of the group after they were involved in a shootout with the police official.
  4. There was no evidence that the accused physically possessed these firearms or that there was any prior agreement between members of the group concerning these firearms.

Count 9

  1. The accused admitted being in physical possession of an unknown quantity of 9mm ammunition.
  2. At least two rounds were possessed by the accused. The one round was fired at the rear of the Fidelity Van and a second round was found in the chamber of the relevant 9mm pistol.
  3. There is no evidence to indicate that the accused was aware of or had any knowledge of other ammunition in the possession of other members of the group.
  4. There is furthermore no evidence of any prior agreement concerning the possession of such ammunition.

THE EVIDENCE GIVEN BY THE ACCUSED

The accused’s evidence was to a great extent confirmed by the facts in the State’s case:

  1. That he was not the person who shot the guard.
  2. That he was not involved when the fleeing robber was shot.
  3. That he did not take the guard’s firearm.
  4. That he did not fire at the other persons on the scene.
  5. That he did not physically possess the firearms and ammunition (other than the firearm and ammunition forming the basis of his admissions) referred to in the indictment.

The accused testified that he was approached at the 11th hour by the deceased robber to assist in the robbery of cash at the service station.He was not part of the original group or involved in any planning with that group.The information given by the deceased robber was at best on a ‘need to know’ basis and included the fact that the job would not be difficult, would be over quickly, would involve the firing of shots into the air to scare the guards and the taking of the cash box.

The accused described in some detail his relationship with the deceased robber and his reasons for believing what was explained to him. His testimony also revealed that the deceased robber was aware of his vulnerability and the fact that he was desperate for money.

The accused was not introduced to other members of the group and he did not know them.

The accused indicated that he entered the shop as instructed by the deceased robber and left the shop after shots were fired.The accused admitted that he fired one shot and testified that he did so in order to indicate that he was part of the group and had associated himself with the group. The shot according to the accused was intended to be fired into the air but it went off before he had sufficiently raised the firearm.

The accused testified that he did not observe the shooting of the guard. There was no resistance by the guard and no reason to kill him. The accused denied that he had the intention to kill the guard or had foreseen that someone in the group would do so.

The accused testified that he had not witnessed the circumstances in which the deceased robber had been killed. It was never his intention that he be killed nor did he foresee that he would be killed. He was not part of the group that fired at the police official.

The accused testified that he did not see who took the guard’s firearm. It was neither his intention nor part of the plan explained by the deceased robber that firearms be taken from the guards. The plan was to take the cash box.

The accused similarly explained that he did not witness the shooting at the other persons in the scene. This he testified had taken place contrary to the plan explained by the deceased robber. He testified that he did not have the intention to kill any of the relevant persons.

The accused admitted the possession of the 9mm pistol and ammunition in the magazine of the weapon. He denied that he possessed any of the other firearms or ammunition, that he intended to possess them, or that the group possessed them on his behalf. According to his version, each person who possessed a firearm or ammunition did so for himself.

The accused conceded that it was foreseeable in the circumstances that shots would be fired to overcome any resistance.

THE ARGUMENTS MADE TO THE COURT

Counsel for the State argued that the accused should be convicted on all counts based on the doctrine of common purpose and joint possession of the firearms.

What follows is an extract from the argument of Counsel for the Defence.

“It may certainly be argued that the accused who involved himself in an attempt to commit a robbery with a group of persons armed with firearms ought to have foreseen the possibility of things not going as planned or the fact that contingencies would occur.

The accused was certainly aware of the fact that firearms were to be used and he also possessed a firearm.

The State however bears the onus to prove all the elements of the crimes in question beyond a reasonable doubt. Despite the application of general principles to cases with similar facts, each case must be judged on its own merits. In many cases, there are different forces, which come into play and often very subtle yet very relevant distinctions.

The Honourable Court is respectfully requested to consider the nature of the prior agreement between the deceased robber and the accused and the scanty information given to the accused when considering the accused state of mind before and during the incident.

The Honourable Court is also respectfully requested to consider the circumstances in which the incidents occurred when considering whether the accused had the necessary mens rea.

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

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

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

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

The Court stated at 607:

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

As indicated supra in the majority of cases of this nature the Court does not have the benefit of the thought processes of an accused and must often infer them. In this matter, the accused has attempted to share those processes with this Honourable Court.

The State must therefore prove beyond a reasonable doubt that the accused in fact did foresee that the security guard (Count 1) would be shot by a member of the group.

It is respectfully submitted that this was not the case bearing in mind what the accused testified and also the circumstances in which the guard was shot. It was not part of the original plan involving the accused that anyone would be shot. It can be argued, as it often is, that the accused in the circumstances must have foreseen that if resistance is offered one or more members of the group would use the firearms and someone would be injured or killed.

The evidence however clearly indicates that that there was no such resistance and no reason for any of the members of the group to apply such violence in the achievement of the goal to obtain the cash. The killing amounted to a cold-blooded senseless action on the part of an individual in the group who acted outside the bounds of what the accused understood would take place. It is humbly submitted that this could not have been a contingency envisaged by the accused in his particular situation and therefore one in which he persisted, reckless of such consequences and with mens rea in the form of dolus eventualis. See S v Mkhwanazi 1998 (2) All SA 53 (A) at 56 and S v Maritz 1996 (1) SACR 405 (A) at 415. In S v Molimi and Another 2006(2) SACR 8 (SCA) the Court recognised the fact that there would be circumstances in which a participant in a robbery would not be required to anticipate every unlawful act in which each of the participants may conceivably engage in the pursuit of the objectives of the common purpose.

It is respectfully argued that in applying the doctrine to the facts the State must also establish that the conduct to be imputed in fact amounts to the specified and alleged crime.

The fatal shot, which killed the fleeing robber, (Count 2) and according to the accused his mentor, was in all probability fired by the police official. He conceded this fact in cross-examination.

In accepting this fact, it is clear that in killing the fleeing robber, the police official did not act unlawfully. He in fact acted in necessity, (‘noordtoestand’ or ‘noodweer’) firing at the fleeing group who were firing at him. On the facts, the fleeing robber had caused his own death by creating a situation, which necessitated return fire by the police official. The fleeing robber in fact acted unlawfully. The accused at this stage was not part of the group and did not engage in the shooting.

It is respectfully submitted that as far as the death of the fleeing robber is concerned no crime was committed and certainly not that of murder which involves the intentional and unlawful killing of another human being.

It is also respectfully submitted that the fact that the accused had been shot and was also unarmed at the time that the gun battle which killed the fleeing robber ensued, made it impossible in the circumstances for him to associate himself with the crime or to commit any act of participation if a crime in respect of the death of the fleeing robber had been committed.

In respect of Count 3 and based on the arguments supra in respect of Count 1,it is respectfully argued that the taking of the firearm by an unknown member of the group was not part and parcel of the original agreement or arrangement.

It is clear that a member of the group set out to take the weapon on his own initiative and that this action was indeed independent of and separate from the intentions of the group and that of the accused.

As such, it is argued with respect that it is reasonably possibility true that the accused did not foresee that one of the members of the group would take a firearm from a guard and that it has not been established beyond a reasonable doubt that the accused had the intention in any of the recognised forms to take the firearm. The Honourable Court is requested to give the accused the benefit of the doubt in this regard.

As a further point of contention, it is respectfully argued that the State on the facts has not proved the crime of robbery and in particular, the removal of the firearm accompanied by violence or even threats of violence. See S v Witbooi 1984(1) SA 242 (K).The evidence indicated that an unknown member of the group approached the guard from behind and removed the firearm. At most, there was a theft of the firearm.

In respect of Counts 5, 6 and 7 the Honourable Court is requested to consider the evidence of the accused and the facts of this particular case. The accused testified that he did not foresee the possibility that any persons would be shot at and he did not intend to kill anyone.

It can certainly be argued that he ought to have foreseen that possibility and was certainly very naïve in his thinking of what would take place and his belief in the version given to him by the deceased robber.

The Court is respectfully requested to give him the benefit of the doubt when it determines his subjective foresight in this regard.

In respect of Counts 8 and 9, it is respectfully argued that the State has not proved beyond a reasonable doubt that the accused possessed the relevant firearms and ammunition.

There is no evidence that the accused at any stage had physical possession of the relevant firearms or ammunition.

In order to request the Court to infer from the totality of the facts that the group possessed all the firearms the State must comply with the requirements as set out in S v Mbuli 2003 (1) SACR 97 (SCA) Para. 71,where the reasoning of Marais J in S v Nkosi 1998 (1) SACR 284 (W) at 286 wasaccepted. The learned Judge remarked as follows:

‘The issues which arise in deciding whether the group (and hence the appellant) possessed the guns must be decided with reference to the question whether the State has established facts from which it can properly be inferred by the Court that:

  1. the group had the intention (animus) to exercise possession of the guns through the actual detentor and
  2. the actual detentors had the intention to hold the guns on behalf of the group.
  3. Only if both requirements are fulfilled can there be a joint possession involving the group as a whole and the detentors, or (common purpose) between the members of the group to possess all the guns.

It is submitted, that the State has not succeeded in establishing these requirements and the evidence placed before the Court in fact suggests the contrary, nl. that each individual possessed a firearm and ammunition for himself. The Court in Johannes Kwanda v The State 2011 ZASCA 50 was at pains to state the fact that such an inference cannot be drawn from the mere fact that the parties conspired to commit a robbery with firearms. The Court ruled:

The fact that the appellant conspired with his co-accused to commit robbery, and even assuming that he was aware that some of his co-accused possessed firearms for the purpose of committing the robbery, does not lead to the inference that he possessed such firearms jointly with his co-accused.’

 

These are the facts that faced the Court in this matter. For the decision of the Court click here.


 

SENTENCING- SOME MITIGATING FACTORS

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

  • The age of the accused

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

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

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

  • The accused’s background and standard of education

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

  • The employment record of the accused

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

  • The health of the accused

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

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

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

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

  • Detention prior to sentencing

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

  • Influence

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

  • No previous convictions and the character of the accused

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

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

  • Degrees of Participation

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

  • Contrition and Remorse

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

  • Mercy

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

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

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

  • The cumulative effect of sentences on multiple counts

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

  • Minimum Sentences and substantial and compelling circumstances

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

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

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

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

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

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

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

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

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


CIRCUMSTANTIAL EVIDENCE AND INFERENTIAL REASONING

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

The standard required however remains proof beyond a reasonable doubt. 


 

 

THE DOCTRINE OF RECENT POSSESSION OF STOLEN GOODS

 

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

 

The principles are often applied to the following simple scenario:

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

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

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

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

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

 These principles are expressed in the following cases:

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

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

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

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

 

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

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


WHEN IS MURDER PLANNED OR PREMEDITATED?

 

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

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

Planned is:

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

(Colliers Dictionary)

 

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

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

 

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


  

 

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

GENERAL

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

 

  • Section 252 A (1) reads as follows:

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

 

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

SECTION 252A (2)

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

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

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

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

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

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

(iii) the seriousness of such offence;

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

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

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

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

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

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

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

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

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

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

(l) whether, before the trap was set or the undercover operation was used, there existed any suspicion, entertained upon reasonable grounds, that the accused had committed an offence similar to that to which the charge relates;

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

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

 

SECTION 252A (3)

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

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

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

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

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

thereby;

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

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

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

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

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

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

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

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

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

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

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

 

            PROCEDURAL ASPECTS

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

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