THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No : 746/2007

SHAMIEL EYSSEN

Appellant

and

THE STATE

Respondent

Neutral citation: Eyssen v S (746/2007) [2008] ZASCA 97 (17 September

2008).

Coram:
STREICHER, MTHIYANE, CLOETE, HEHER JJA and

KGOMO AJA

Heard:
21 AUGUST 2008
Delivered:
17 SEPTEMBER 2008
Corrected:

Summary:
Prevention of Organised Crime Act 121 of 1998: interpretation
of ss 2(1)(e) and (f) (racketeering activities).

_______________________________________________________________

ORDER
_______________________________________________________________

On appeal from: High Court, Cape Town (Veldhuizen J sitting as court of first
instance)

The appeal succeeds. The convictions on counts 1 and 2 and the sentences
imposed on those counts are set aside. The sentences on counts 4, 29 and 46

are ordered to run concurrently with the sentence imposed on count 5. The
effective period of imprisonment is therefore 15 years.
_______________________________________________________________

JUDGMENT
_______________________________________________________________

CLOETE JA  (STREICHER, MTHIYANE, HEHER JJA and KGOMO AJA
concurring):

[1] The appellant was the first of 18 accused charged in the Cape High
Court with 75 counts alleging statutory contraventions as well as common law
crimes. It was the State case that the appellant was the leader of a gang called
the Fancy Boys which operated out of premises in Salt River and which during
the years 2001 to 2003 committed a number of offences involving primarily
housebreaking and robbery in the Cape Peninsula.

[2] The appellant was convicted by the court a quo (Veldhuizen J and
assessors) of the following offences:
(a)
two relating to racketeering activities, namely, contraventions of
ss 2(1)(e) and (f) of the Prevention of Organised Crime Act1 ('the Act') (counts 1
and 2), for which he was sentenced to 20 years' imprisonment on both taken
together;
(b)
one relating to criminal gang activities in contravention of s 9 of the Act
(count 4), for which he was sentenced to three years' imprisonment;
(c)
two of housebreaking with intent to rob and robbery with aggravating
circumstances (counts 5 and 46) and one of robbery with aggravating
circumstances (count 29), for each of which he was sentenced to 15 years'
imprisonment.
All of the other sentences were ordered to run concurrently with the sentence
imposed for the racketeering activities so the effective period of imprisonment
was 20 years.

1 121 of 1998.

[3] Leave to appeal against the convictions on all counts was refused by the
trial judge but granted by this court in respect of the two counts relating to
racketeering activities only. I shall first examine the provisions of the sections
which the appellant was found to have contravened, and then consider the
evidence.

[4] The relevant part of s 2(1) reads as follows (I shall put in inverted
commas words or phrases which are defined in s 1):
'2(1)
Any person who ─
. . .
(e)
whilst managing or employed by or associated with any "enterprise", conducts
or participates in the conduct, directly or indirectly, of such enterprise's affairs through a
"pattern of racketeering activity";
(f)
manages the operation or activities of an "enterprise" and who "knows" or
"ought reasonably to have known" that any person whilst employed by or associated
with that enterprise, conducts or participates in the conduct, directly or indirectly, of
such enterprise's affairs through a "pattern of racketeering activity";
. . .
within the Republic or elsewhere, shall be guilty of an offence.'

[5] The essence of the offence in subsec (e) is that the accused must
conduct (or participate in the conduct) of an enterprise's affairs. Actual
participation is required (although it may be direct or indirect). In that respect the
subsection differs from subsec (f), the essence of which is that the accused
must know (or ought reasonably to have known) that another person did so.
Knowledge, not participation, is required. On the other hand, subsec (e) is wider
than subsec (f) in that subsec (e) covers a person who was managing, or
employed by, or associated with the enterprise, whereas subsec (f) is limited to
a person who manages the operations or activities of an enterprise. 'Manage' is
not defined and therefore bears its ordinary meaning, which in this context is:
'1 be in charge of; run. 2 supervise (staff). 3 be the manager of (a sports team or a

performer).'2
[6] The word 'enterprise' is defined in s 1 as follows:
' "enterprise" includes any individual, partnership, corporation, association, or other
juristic person or legal entity, and any union or group of individuals associated in fact,
although not a juristic person or legal entity.'
It is difficult to envisage a wider definition. A single person is covered. So it
seems is every other type of connection between persons known to the law or
existing in fact; those which the Legislature has not included specifically would
be incorporated by the introductory word 'includes'. Taking a group of
individuals associated in fact, which is the relevant part of the definition for the
purposes of this appeal, it seems to me that the association would at least have
to be conscious; that there would have to be a common factor or purpose
identifiable in the association; that the association would have to be ongoing;
and that the members would have to function as a continuing unit. There is no
requirement that the enterprise be legal, or that it be illegal. It is the pattern of
racketeering activity, through which the accused must participate in the affairs
of the enterprise, that brings in the illegal element; and the concepts of
'enterprise' and 'pattern of racketeering activity' are discrete. Proof of the pattern
may establish proof of the enterprise, but this will not inevitably be the case.3

[7] It is a requirement of the subsections in question that the accused (in
subsec (e)) or the other person (in subsec (f)) must participate in the
enterprise's affairs. It will therefore be important to identify what those affairs
are. It will also be important for the State to establish that any particular criminal
act relied upon, constituted participation in such affairs. (Para 14 below
illustrates the point.) The participation may be direct, or indirect.

[8] It is a further requirement that the participation must be through a 'pattern
of racketeering activity'. That concept is defined as follows:
' "pattern of racketeering activity" means the planned, ongoing, continuous or repeated

2 The Concise Oxford English Dictionary (10th ed) sv 'manage'.
3 United States v Turkette, 452 US 576 (1981) at 583.

participation or involvement in any offence referred to in Schedule 1 and includes at
least two offences referred to in Schedule 1, of which one of the offences occurred
after the commencement of this Act and the last offence occurred within 10 years
(excluding any period of imprisonment) after the commission of such prior offence
referred to in Schedule 1.'
The word 'planned' cannot be read eiusdem generis with 'ongoing, continuous
or repeated' and accordingly qualifies all three. The relevant meaning of
'pattern' is given in the Oxford English Dictionary4 as 'an order or form
discernible in things, actions, ideas, situations, etc. Frequently with of as pattern
of behaviour = behaviour pattern . . . .' In my view neither unrelated instances of
proscribed behaviour nor an accidental coincidence between them constitute a
'pattern' and the word 'planned' makes this clear.

[9] The participation must be by way of ongoing, continuous or repeated
participation or involvement. The use of 'involvement' as well as the word
'participation' widens the ambit of the definition. So does the use of the words
'ongoing, continuous or repeated'. Although similar in meaning, there are
nuances of difference. 'Ongoing' conveys the idea of 'not as yet completed'.
'Continuous' (as opposed to 'continual')5 means uninterrupted in time or
sequence. 'Repeated' means recurring.

[10] Some limitation is introduced into the definition by the requirement that
the participation or involvement must be in any Schedule 1 offence. The
limitation is, however, not substantial.  Schedule 1 lists a considerable number
of offences, both statutory and common law, and includes (as item 33):
'Any offence the punishment wherefor may be a period of imprisonment exceeding one
year without the option of a fine.'

[11] For the purposes of this appeal it is not necessary to interpret the latter
part of the definition of 'pattern of racketeering activity' commencing with the

4 2nd ed sv 'pattern', meaning 8(c).
5 Which means 'constantly or frequently occurring': Concise OED (revised 10th ed) sv 'continual'.

words 'and includes' and I accordingly refrain from doing so. It is also not
necessary to deal with the provisions of ss 1(2) and (3), which deal respectively
with when a person has knowledge of a fact, and when a person ought
reasonably to have known (or suspected) a fact, for the purposes of the Act.

[12] I now turn to the facts. The cornerstone of the State case was the
evidence of Mr Mishal Donough. He was an accomplice who was warned in
terms of s 204 of the Criminal Procedure Act.6 The trial court appreciated the
dangers of accepting his evidence and concluded that it could not safely be
relied upon unless corroborated, which, the court correctly appreciated, meant
corroborated by evidence implicating an accused. Corroboration is of course not
the only safeguard which can properly be used to reduce the danger of
convicting an innocent person, but the trial court was amply justified in its
approach as the representative of the State on appeal correctly conceded.
Donough was a particularly dangerous witness. He subjectively appreciated
this; he said:
'If I wanted to I could have put any of these accused at any scene . . . .'
He had, on his own version, been involved in more than 30 robberies in addition
to the 15 to which he testified over a period of about two years. He had entered
into a plea bargain agreement with the State, the relevant paragraph of which
reads:
'The parties further agree that a just and fair sentence for the accused will be the
following:
1.
That the accused be sentenced to a fine of R15 000 (fifteen thousand rand ) or
36 (thirty six) months' imprisonment, of which R7 500 (seven thousand five hundred
rand) or 18 (eighteen) months is suspended for a period of 5 (five) years on condition
that he is not convicted of theft, attempted theft or contravening s 36 or s 37 of the
General Law Amendment Act 62 of 1955 which offence is committed within the period
of suspension.
2.
The parties agree that the accused will assist the South African Police Services
to bring known perpetrators known to him to book, more specifically, Shamiel Eyssen.

6 51 of 1977.

3.
The parties also agree that the accused will testify for the State in the upcoming
trials against these perpetrators.'
Donough did not have the R7 500 and was obliged to borrow the money from
his girlfriend. Had he breached the terms of his plea bargain agreement, he
would probably not have been able to avoid jail. He said that if he were to go to
jail, it was likely that he would be murdered there by members of the Fancy
Boys gang and he conceded that this had played 'a big, big part' in his decision
to enter into the plea bargain agreement. It could therefore be expected that
Donough would go to almost any lengths to co-operate with the State,
particularly in ensuring that the appellant be convicted.

[13] The State case on both racketeering charges was that the 'enterprise'
was the Fancy Boys gang, and that the 'enterprise's affairs' comprised robbery,
particularly at private homes. The acceptable evidence reveals very little about
the gang and its members and suggests that there was no organisation,
structure or hierarchy. It may have been no more than a loose association of
individuals some of whom sporadically joined with others, who may or may not
have been members of the gang, to commit crimes not for the benefit of the
gang, but to enrich only themselves. If this is so then on the State's submissions
as to the meaning of 'enterprise', which were based on decisions in the United
States of America,7 the Fancy Boys gang was not an enterprise. It is not
necessary, however, to decide the point as there are other fatal flaws in the
State case. It will suffice to highlight just one in each of the counts on appeal.

[14] It was the State case on the count based on s 2(1)(e) that the pattern of
racketeering activity, through which the appellant participated in the conduct of
the affairs of the Fancy Boys gang, consisted in his commission of the common
law offences with which he was charged. Direct participation was relied on. The

7 Particularly United States v Turkette, above n 3 and United States v Bledsoe 674 F.2d 647
(1982) especially at 665. The latter requires 'a common or shared purpose which animates
those associated with it', and that the enterprise functions as a continuing unit, as well as 'an
ascertainable structure distinct from that inherent in the conduct of a pattern of racketeering
activity' such as the command system of a Mafia family or the hierarchy, planning and division
of profits within a prostitution ring.

problem for the State is, as submitted on behalf of the appellant, that the
appellant was acquitted on all but three of those charges and it was not shown
that the three on which he was convicted, were part of the affairs of the gang.
Donough said that the Fancy Boys were involved in armed robbery and 'mainly
done house break-ins'. The three common law crimes of which the appellant
was convicted fit this description. But the evidence of the victims and
eyewitnesses who testified, established that a number of persons were involved
in the commission of each. On one, only the appellant was convicted (count 5).
The appellant and accused 12, who was a Fancy Boy, were convicted on
another (count 29). On the third (count 46), the appellant and accused 4, who
was not a Fancy Boy, were convicted. In all three cases neither the identity of
the other participants, nor their membership of the Fancy Boys gang, was
established. It was therefore in my view not proved that the robberies of which
the appellant was convicted were part of the affairs of the Fancy Boys gang. It
follows that the conviction of contravening s 2(1)(e) of the Act must be set
aside.

[15] The representative for the State on appeal made several submissions as
to why the appellant was correctly found by the trial court to have managed the
operations or activities of the Fancy Boys gang and was therefore guilty of
contravening s 2(1)(f) of the Act. The first submission was that the gang would
get together at the appellant's house prior to each robbery, where the appellant
would give instructions about the robbery as well as provide firearms and
vehicles for use in the robbery. But it was not Donough's evidence that the
appellant would give instructions about each robbery. His evidence in chief was:
'[O]n a certain day, was a certain house targeted or a certain area like Camps Bay or
Newlands, or how did it work? – Well, how it worked was, random areas and random
houses. If we saw a front door open we went in.'
In cross-examination he admitted that in respect of nine counts of
housebreaking with intent to rob and robbery with aggravating circumstances8
the appellant had had nothing to do with the planning. In the event, the

8 Counts 33, 34, 35, 37, 38, 39, 41, 44 and 53.

appellant was convicted of having committed three robberies which, I have
already found, were not shown to be part of the affairs of the Fancy Boys gang.
Donough did indeed say that the appellant provided guns and vehicles for the
Fancy Boys to commit robberies, but this evidence was not corroborated and it
accordingly falls to be disregarded.

[16] It was submitted that according to Donough, the premises rented by the
appellant at 45 Coleridge Road in Salt River, after he moved from his previous
address, became the stronghold of the Fancy Boys gang. But again, that was
not Donough's evidence. What he said in the passage relied on by the
representative for the State was:
'Accused No. 1 then made arrangements with the other gang leader who I know as
Madat American. He made arrangements to rent a house at 45 Coleridge Road, Salt
River, for the purpose of selling drugs. This house then became the new stronghold, or
as I know it, pos.
It was known [as] the pos? – Well, a drug house in gangster terms is called a pos.'
If this passage is properly analysed, Donough's evidence was that the house
became the new stronghold for selling drugs, not the new stronghold for the
Fancy Boys gang. And even if it be accepted that the appellant managed a drug
dealing operation at the house at 45 Coleridge Road, it was not established that
this was part of the operation or activities of the gang, as the representative of
the State correctly conceded on appeal.

[17] It was further submitted that the appellant was unemployed, but still able
to amass some wealth as he owned a house, was able to rent another house
for between R3 500 and R4 500 per month and had at least R25 000 in cash
which was found at his mother's house. But all of this could be in consequence
of his activities as a drug dealer. Nor does the fact that according to Inspector
Kotze the appellant was the person who assumed charge when the police
executed search warrants at 45 Coleridge Road, take the matter further: the
appellant was the lessee of the premises where the drug dealing operation was
being conducted and (on the State case) he managed that operation. He could

therefore be expected to have taken charge when the premises were searched
by the police for those reasons, not because he was managing the operation or
affairs of the Fancy Boys gang.

[18] Inspector Kotze also testified that when some gang members were
arrested, the appellant paid their bail and that when the appellant's co-accused
were arrested, they refused to sign warning statements unless the appellant
gave them permission to do so. But not all of the accused, and not all of those
whose bail was paid, were members of the Fancy Boys gang; and the fact that
some of them were, is not a sufficient basis to find that the appellant managed
the operation or activities of the gang.

[19] The trial court, in finding that the appellant managed the operation of the
gang, said that he gave instructions at the house at 45 Coleridge Road to
members of the gang before the robberies which formed the subject matter of
two of the counts on which he was convicted (5 and 46), were committed. So far
as the one (count 5) is concerned, this was a factual misdirection. So far as the
other (count 46) is concerned, assuming that the finding of the trial court is
correct, the robbery in question was not shown to form part of the operation or
activities of the gang and if the appellant did indeed give instructions to those
involved in the robbery, this does not support a finding that in so doing he
managed the operation or activities of the gang.

[20] There was no cross-appeal by the State on sentence, nor any suggestion
that if the convictions and sentences imposed on the racketeering counts were
set aside, this court should increase the effective sentence beyond 15 years.

[21] The appeal succeeds. The convictions on counts 1 and 2 and the
sentences imposed on those counts are set aside. The sentences on counts 4,

29 and 46 are ordered to run concurrently with the sentence imposed on count
5. The effective period of imprisonment is therefore 15 years.

_______________
T D CLOETE
JUDGE OF APPEAL

Appearances:

For Appellant:
G Smith

Instructed by
Lovius-Block Attorneys Bloemfontein

For Respondent:
P van Wyk

Instructed by
The Director of Public Prosecutions Cape Town
The Director of Public Prosecutions Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
17 September 2008
Status:
Immediate
Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal

S EYSSEN v THE STATE

1.
The Cape High Court convicted Mr Eyssen of two counts of
racketeering, one count of criminal gang activities and three counts of
housebreaking and robbery. The State's case against Mr Eyssen was
that he was the leader of the Fancy Boys gang which committed a
number of housebreakings and robberies in the Cape Peninsula during
2001 to 2003.

2.
Leave to appeal to the Supreme Court of Appeal was granted on
the racketeering counts only. The SCA set aside the convictions on
those counts because it was not proved that the three robberies in which

Mr Eyssen was found to have participated, were part of the affairs of the
Fancy Boys gang, nor was it proved that he managed the operation or
activities of the gang. The effective sentence was reduced from 20 to 15
years' imprisonment.
--ends--