S v Matsabu (186/2008) [2008] ZASCA 149 (27 November 2008)

THE SUPREME COURT OF APPEAL

REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 186/08

T P MATSABU Appellant

and

THE STATE Respondent

Neutral citation: Matsabu v S (186/08) [2008] ZASCA 149 (27 November 2008)

Coram: HEHER, COMBRINCK and CACHALIA JJA

Heard: 12 NOVEMBER 2008

Delivered: 27 NOVEMBER 2008

Corrected:

Summary: Criminal procedure – s 252A of Criminal Procedure Act 51 of 1977 – trap – admissibility of evidence.

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ORDER

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On appeal from: Full Court of the Free State Provincial Division, (Van der Merwe and Musi JJ sitting as court of appeal).

The appeal is dismissed.

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JUDGMENT

HEHER JA (Combrinck and Cachalia JJA concurring):

[1] The appellant was employed by the Maqhaka Traffic Department as a law enforcement officer. On 18 December 2003 he was arrested during an anti-corruption operation conducted by a unit of the Free State Provincial Administration responsible for investigating fraud and corruption. He was charged with a contravention of s 1(1)(b) of the Corruption Act, 94 of 1992, the allegation being that on that day at or near the Viljoenskroon road in that district he accepted an amount of R300 as a bribe from a certain Inspector Wilbers as an inducement not to issue a traffic summons to her.

[2] The appellant pleaded not guilty at his trial in the magistrate’s court. His legal representative placed on record, as matters not in dispute, that, on the day in question, the appellant had been one of a group of officers manning a speed trap; that he stopped a vehicle driven by the complainant because of the excessive speed at which it was travelling; that the complainant asked him not to prosecute her but he refused and the complainant thereupon pushed an amount of R300 into the pocket of his trousers and drove off.

[3] At the trial the prosecution called the complainant to give evidence as well as three other witnesses who were involved in the setting of the corruption trap and the arrest of the appellant. The appellant testified in his own defence. He was convicted as charged and sentenced to two years imprisonment in terms of s 276(1)(i) of the Criminal Procedure Act 51 of 1977.

[4] An appeal to the Full Court of the Free State Provincial Division (Van der Merwe and H M Musi JJ) against his conviction was dismissed. That court granted leave to appeal to this Court.

[5] It will be unnecessary to discuss the evidence of the appellant or its merits vis-à-vis that of the complainant. His counsel conceded in argument that the appellant’s version of events had rightly been disbelieved by the magistrate. Suffice it to say that the concession was well-considered. Counsel therefore approached the appeal on the assumption that the complainant’s description of events was substantially accurate although, as he emphasised, she had admitted that her recollection was not necessarily full or flawless.

[6] It was common cause that the appellant had been ensnared in a trap used to detect, investigate or uncover the commission of an offence within the ambit of s 252A(1) of the Act.¹

[7] The thrust of the argument presented to us was that the complainant’s own account demonstrated that her conduct had gone beyond the provision of an opportunity to commit the offence of corruption. This had two legal consequences: either the evidence obtained by the state in consequence of entrapping the appellant should have been ruled inadmissible at the trial – at least in the first stage, as s 252A(1) of the Act provides – or the use of and reliance on such evidence resulted in the appellant not receiving the fair trial which was his constitutional entitlement.

[8] Some point was made in the heads of argument about the magistrate’s refusal to hold a trial-within-a-trial when his legal representative twice objected to the admissibility of the trap evidence and asked that admissibility be tried as a separated issue. During argument reliance on that ground was all but abandoned. Such uncertainty as remains should be dispersed. Our courts have long accepted that it is both desirable and necessary, to the end of achieving a fair trial, to try issues of the voluntariness of extra-curial statements or conduct of accused persons separate from the merits of the case: R v Dunga 1934 AD 223. When a ruling is made without hearing the defence evidence, the defence is entitled to withhold its further testimony where that could only be given on terms which may prejudice the trial of the merits: ibid at 227. See also S v de Vries 1989 (1) SA 228 (A) at 232G-234E, S v Yengeni and others (3) 1991 (1) SACR 387 (c) at 391b-392a, Ntzweli v S [2001] 2 All SA 184 (c) at 187f-189g. In general terms section 252A is also concerned with voluntariness of conduct as the measure of whether an accused’s conduct is induced by the circumstances of or methods employed in the operation rather than resulting from his own desire to commit the offence. In principle I do not think that there is any material distinction between the accepted categories of cases where the separation of admissibility and merits is insisted upon and s 252A. Both enquiries seem to take account of and provide for the same inherent risks, such as discouraging an accused from speaking openly when the trial of the merits may be influenced if he does so and the likelihood that failure to deal with admissibility properly and promptly will leave an accused in limbo in relation to the vital questions of whether he needs to testify and the substance of the case that he has to answer. So also the prosecutor must know the limits of his case both for the purpose of leading further evidence and for cross-examination of the accused. For all these reasons the holding of a trial-within-a-trial will usually be appropriate to decide admissibility under s 252A.

[9] But, as counsel appreciated, s 252A(7) provides implied legislative sanction for a trial court to exercise a judicial discretion on whether to try admissibility as a separate issue. There is a recognition that there may be cases where the interest of the accused will not be prejudiced by either the making of a ruling without hearing evidence or, even, delaying a ruling until the conclusion of the case. In the present instance the appellant’s legal representative, called upon at the trial to furnish the grounds on which he would challenge the admissibility of the trap evidence – as he was obliged by the first proviso to s 252A(6) to do – limited himself solely to an alleged non-compliance with the instructions or guidelines issued by the Director of Public Prosecutions to the law enforcement authorities in the Free State. This, in effect reduced the scope of the enquiry to the matters referred to in s 252(2)(a), a very narrow factual question, about which Du Toit et al, Commentary on the Criminal Procedure Act, 24-134, remark that the sub-section (and ss (2)(b) and (c)) ‘would seem to have no bearing on whether the conduct of the trap goes beyond providing an opportunity to commit an offence or not’. It is unnecessary to debate the broad justification for that doubt. What seems clear is that so limited an issue does not, prima facie, bear on the voluntariness of the appellant’s commission of the offence. The issue was therefore one which, if left over for determination at the end of the case, was most unlikely to result in unfairness to the accused in the conduct of the trial. The magistrate’s refusal to hold a compartmentalized hearing was therefore not a misdirection.

[10] It is true that the appellant’s case as finally argued before the magistrate was not confined to ss (2)(a). Reliance was also placed on matters relevant to admissibility which are covered in ss (2)(d), (e), (f) and (e) in support of the submission that Wilbers’s conduct went beyond the creating of an opportunity. Given that the onus rests on the state to establish admissibility and that it must presumably proceed to do so by reference to the grounds of objection voiced by the defence under ss (6), I have some doubt as to whether the magistrate was, as to admissibility, not initially confined to the stated ground alone, leaving any objections subsequently raised to be considered as reasons for refusing to allow evidence already tendered to stand, should he conclude, upon a consideration of the totality of such additional objections, that the evidence was obtained in an improper or unfair manner and that its admission would render the trial unfair or would otherwise be detrimental to the administration of justice (ss (3)).

[11] Be that as it may, the reliance by appellant’s counsel both on non-compliance with the guidelines and on conduct said to fall within the other identified subsections of ss (2), must fail on the facts.

[12] The state proved in evidence the terms of an authority for the carrying out of trapping operations issued over the signature of a Deputy-Director of Public Prosecutions in the Free State. It was not possible to conclude that the operation in question fell within the terms of that authority, but, if it did, there were also substantial deviations from the apparent level of prima facie proof for which it called concerning the geographical location of the supposed offences and the identity of the suspects. However, as supposed by the learned authors, such deviations bore no apparent causal connection between the conduct of the trap and the commission of the offence. They were, in short, irrelevant to the case before the court.

[13] The grounds of unfairness said to arise from the matters referred to in ss (2)(d), (e), (f) and (g) can be disposed by considering the evidence of Wilbers.

[14] Wilbers testified that she was not a part of the crime investigation unit. She was brought in as an independent witness who would serve as the target of any corrupt practice. She was equipped with marked money and expressly warned not to solicit an offence by, for example, offering money of her own accord. When the appellant, who was manning a speed trap, stopped her vehicle, he asked whether she wanted to see the proof that she had driven through it at 150km per hour. Wilbers replied that she knew she had driven a bit fast and did not need to see the reading. She remained seated in her vehicle. The appellant asked, she said, if she knew what the fine was for travelling so fast. He was in possession of a book which he opened to show her the scale of fines and calculated her fine at R900. As he was ostensibly busy writing the ticket Wilbers asked whether he was really going to fine her. His response was to ask what she wanted to do. He went on writing. At his request Wilbers produced her licence. She again asked if he intended to write out a traffic fine. Once more the appellant said he did, but ‘what did I want to do about it?’. She answered that he knew better than she did. She asked whether she could pay the fine at once. The appellant enquired how much money she had with her. She took out her identity book, removed the bank notes from between its pages, counted them and told the appellant that she had only R300. He said that was alright. But before accepting the money he asked if she would go to the police and cause him trouble if he took it. Wilbers’s response was that she would be in trouble (‘my husband will murder me’) if she went home with a ticket, so she would rather pay R300 now than R900 later.

[15] Wilbers gave the appellant the folded bank notes. He did not count them but immediately placed them under his note book. As he took the money he was standing with his back to two of his colleagues who were some 10 metres away. Seeing him apparently still writing Wilbers asked whether, despite receiving the money, the appellant intended to issue a ticket, to which he replied that he must appear to be writing so that his colleagues would not notice him take the money. He then said everything was in order and she could go. Before she drove away he asked a second time whether she would cause trouble for him. She replied ‘No’. As she moved off she looked in her left external mirror and saw the appellant, who was walking away, push the money into his left trouser pocket.

[16] Was the acceptance of this evidence unfair to the appellant? Did the conduct of the trap have the effect of inducing the appellant to act in a manner that he would otherwise have not? Counsel submitted that both questions result in affirmative answers. Particularly marked (and reprehensible) he argued was her repeated prompting of the appellant (‘are you really going to issue a ticket to me’) and the resort to grossly emotive consequences (‘murder’) if he should fail to assist her. I cannot agree. As the section contemplates, a trap may usefully be employed to set up a situation of which a corruptly-inclined official may take advantage. The provision of an attractive opportunity is the essence of a successful trap and the legislature recognises that fact in s 252A. It draws the line however at conduct which literally or figuratively lays a bait for the unsuspecting official by encouraging the commission of a crime. But the complainant’s behaviour was essentially neutral. She did not tempt, entice or suggest any unlawful line of conduct. A tearful motorist pleading for mercy may provide generous opportunity for the unscrupulous official on the look-out for such occasion, but it has no logical or necessary connection with the criminal conduct (essentially the soliciting of a bribe) and cannot be used as an excuse under the section to avoid the consequences of his or her own fault. On the contrary, the evidence for the prosecution established that a traffic policeman in the position of the appellant has a discretion which he may invoke in appropriate cases (such as an apparently merited plea for mercy) not to proceed with the issuing of a fine without prejudicing his employment.

[17] As to whether there existed any suspicion that the appellant had committed any similar offence (ss 2(e)), there clearly was not. But that does not automatically mean that he was unfairly treated. The trap was not directed against the appellant personally but rather against whosoever happened to be manning the speed trap at the particular time. As the evidence of the complainant shows, the appellant was someone who was prepared to bend the rules if the opportunity presented itself and for that he has only himself to blame.

[18] The appeal is dismissed.

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J A HEHER

JUDGE OF APPEAL

APPEARANCES:

FOR APPELLANT: P J Heymans

ATTORNEYS: Du Randt & Louw

KROONSTAD

Rosendorff Reitz Barry

BLOEMFONTEIN

FOR RESPONDENT: D W Bontes

ATTORNEYS: Director of Public Prosecutions

BLOEMFONTEIN