THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

REPORTABLE
Case no: 916/2013

In the matter between:

PETROS DUMISANE JWARA
FIRST APPELLANT
VICTOR MPHO JWILI
SECOND APPELLANT
RATSHEKI LAMPROS MOKGOSANI
THIRD APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Jwara v S (916/13) [2015] ZASCA 33 (25 March  2015)

Coram:
Brand, Ponnan and Willis JJA and Dambuza and Gorven
AJJA

Heard:

12 March 2015

Delivered:
25 March 2015

Summary: Criminal Law ─ various offences under Prevention of Organised
Crime Act 121 of 1998 and other common law crimes ─ admissibility of
evidence obtained pursuant to a direction made under Interception and
Monitoring Prohibition Act 127 of 1992 ─ exercise of discretion to admit a
proper one ─ evidence of crimes sufficient ─ convictions good ─ no basis to
interfere with sentences.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from: South Gauteng High Court, Johannesburg (Coetzee J)

The appeals against the convictions and sentences of all three appellants are
dismissed.
________________________________________________________________

JUDGMENT
________________________________________________________________

Gorven AJA (Brand, Ponnan and Willis JJA and Dambuza AJA
concurring):

[1] Quis custodiet ipsos custodes?1 Thus enquired the satirist Juvenal in his
poem on his attempts to enforce moral behaviour. Since Plato, this phrase has
been used to lament the corrosive effect of corrupt police and judicial officials.
When Captain Sizane, the investigating officer in this matter, stumbled on a
reference to the first appellant being involved with a suspected manufacturer of
substances proscribed under the Drugs and Drug Trafficking Act2 (the Drugs
Act), he was confronted with what appeared to be just such corrupt behaviour.
This came about after he had obtained an order under the Interception and
Monitoring Prohibition Act3 (the Interception Act) to monitor calls made to and
from the cellphone of that suspected drugs manufacturer. The conversation said
that the first appellant had undertaken to store the seized drug manufacturing
machinery and return it to the suspect after the matter had been resolved. The

1 Juvenal Satire 6.346–348. The translation has been rendered as: „Who will guard the guards themselves?‟
„… I know the plan that my friends always advise me to adopt:
"Bolt her in, constrain her!"
But who can watch the watchmen?
They keep quiet about the girl's secrets and get her as their payment;
everyone hushes it up.‟
2 The Drugs and Drug Trafficking Act 140 of 1992.
3 The Interception and Monitoring Prohibition Act 127 of 1992.

first appellant was also said to have told the arrested wife of the suspect what to
mention in her warning statement to the police. The first appellant was, at the
time, a Superintendent in the South African Police Service (SAPS) and the head
of the West Rand Organised Crime Unit.

[2] This discovery led Captain Sizane to set about applying for a direction
under the Interception Act from the designated judge, Seriti J, to monitor the
cellphone calls made to and from the first appellant‟s cellphone. This direction
was granted. An extension of that direction was afterwards obtained from the
same judge relating to the cellphones of the second and third appellants and one
Captain Shange (Shange). The three appellants and Shange were all members of
the West Rand Organised Crime Unit at the time.

[3] In due course, the three appellants were arraigned, along with Shange, in
the South Gauteng High Court, sitting at Johannesburg before Coetzee J. They
confronted 13 charges; not all of which applied to all of the accused. Before the
trial commenced, Shange died. This left the three appellants as the only accused
persons in the trial. They were all acquitted on counts 2, 4, 5 and 8. The
remaining charges confronting them, and on which they were convicted as
charged, were as follows:

Contravention of s 2(1)(d) of the Prevention of Organised Crime Act 121
of 1998 (the POCA), during the period 2005 to 2007 by acquiring or
maintaining an interest in an enterprise – second and third appellants
(Count 1);

Contravention of s 2(1)(f) of the POCA, during the same period by
managing the operation of an enterprise – first appellant (Count 3);

Dealing in drugs by supplying cocaine, ecstacy and crystal methaqualone
to Norman Kokoeng on 8 February 2007 – first and second appellants
(Count 6);


Defeating or obstructing the course of justice by releasing a suspect,
Kenneth Bogopane and/or causing a false entry to be made in the SAPS
occurrence book, resulting in his release on 10 February 2007 – first and
second appellants (Count 7);

Theft of 800kg of ephedrine, a scheduled substance, at OR Tambo airport
on 3 October 2007 – all three appellants (Count 9);

Supply of ephedrine, a scheduled substance, by selling it for R1 425 000
– all three appellants (Count 10);

Fraud by giving out to MJ Pretorius on 3 October 2007 at OR Tambo
airport that they were authorised to seize a consignment of ephedrine for
the purposes of investigation – all three appellants (Count 11);

Attempted theft of 5.7 kilograms of cocaine on 9 October 2007 at OR
Tambo airport – all three appellants (Count 12);

Fraud by giving out to JD Scott that they were authorised to apply for a
certificate in terms of s 252A of the Criminal Procedure Act 51 of 1977 in
respect of the ephedrine at OR Tambo airport on 3 October 2007 – all
three appellants (Count 13).

[4] The first appellant was sentenced to an effective 25 years‟ imprisonment,
the second appellant to an effective 22 years‟ imprisonment and the third
appellant to an effective 20 years‟ imprisonment. The appellants were all denied
leave to appeal by the court below but granted bail pending the outcome of a
petition to this court. This court granted leave to appeal against the convictions
and sentences on 28 February 2012.

[5] The appeal lapsed for failure to file the record timeously. Some six
months thereafter the state applied to have the bail of the appellants revoked.
Despite opposition, an order to that effect was granted by Satchwell J. This

elicited an application for leave to appeal that order by the appellants, which
was granted by Satchwell J. Although that appeal was before us, all concerned
agreed that events had overtaken it. Nothing more need be said on the matter.

[6] An application for reinstatement of the appeal was brought and must be
decided. The explanations given for allowing the appeal to lapse were, to put it
mildly, somewhat unconvincing. However, consideration of such an application
also involves weighing the prospects of success on appeal. Since it was
necessary to fully consider the very substantial record for that purpose, it
seemed appropriate to deal with the merits of the appeal. The appeal was
therefore reinstated at the hearing without objection.

[7] I turn to summarise the offences. Count 1, relating to the second and third
appellants, concerned acquiring an interest in an enterprise through a pattern of
racketeering activity in contravention of s 2(1)(d) of the POCA. The word
„enterprise‟ is defined in the POCA 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.‟
As was pointed out by this court in S v Eyssen:4
„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

4 S v Eyssen 2009 (1) SACR 406 (SCA) para 6.

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.‟

[8] Pattern of racketeering activity is, in turn, defined as meaning:
„. . . the planned, ongoing, continuous or repeated 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‟.
Schedule 1 includes contraventions of s 3, 4 and 5 of the Drugs Act which deal
with the manufacture and supply of scheduled substances, the use and
possession of proscribed dependence producing substances and dealing in such
dependence producing substances. I shall refer to all of these by way of the
general term „drugs‟. Schedule 1 also includes the common law crimes of theft
and fraud. This, in effect, means that a group of people, associated in fact,
which commits two offences under schedule 1 within a ten year period,
maintains an interest in an enterprise through a pattern of racketeering activity.

[9] Count 3, relating to the first appellant, was that he contravened s 2(1)(f)
of the POCA by managing an enterprise through a pattern of racketeering
activity. Apart from the management aspect, the same criteria apply. All of the
other counts fall under Schedule 1.

[10] It was correctly accepted by the appellants that, apart from counts 6 and
7, the outcome of the appeal hinged largely on the question whether the
acceptance into evidence of the intercepted phone conversations obtained under
the Interception Act should be set aside on appeal.

[11] The court below recognised that the provisions of the Interception Act
limit the right to privacy accorded in the Constitution.5 There was no attack on
the constitutionality of the Interception Act. Therefore, evidence obtained in
accordance with it would thus have been obtained without violating this, or any
other, right. Where a right under the Constitution is impinged on by legislation,
the prescripts of that legislation must be strictly adhered to. The appellants
correctly submitted that the principles governing the obtaining and carrying out
of search and seizure warrants apply equally to a direction under the
Interception Act. The position on search and seizure was explained by Langa
DP in Investigating Directorate: Serious Economic Offences & others v
Hyundai Motor Distributors (Pty) Ltd & others; In re Hyndai Motor
Distributors (Pty) Ltd & others v Smit NO & others,6 when he said:
„On the proper interpretation of the sections concerned, the Investigating Directorate is
required to place before a judicial officer an adequate and objective basis to justify the
infringement of the important right to privacy. The legislation sets up an objective standard
that must be met prior to the violation of the right, thus ensuring that search and seizure
powers will only be exercised where there are sufficient reasons for doing so. These
provisions thus strike a balance between the need for search and seizure powers and the right
to privacy of individuals.‟7

[12] The relevant parts of s 2(2) of the Interception Act read as follows:
„Notwithstanding the provisions of subsection (1) or anything to the contrary in any other law
contained, a judge may direct that-
(a)   . . .
(b)   . . . all communications which have been or are being or are intended to be transmitted
by telephone or in any other manner over a telecommunications line, to or from a person,
body or organization be intercepted; or

5 Section 14(d) of the Constitution of the Republic of South Africa, 1996.
6 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd 2000 (2) SACR
349 (CC) para 55.
7 References omitted.

(c)
conversations by or with, or communications to or from, a person, body or
organization, whether a telecommunications line is being used in conducting those
conversations or transmitting those communications or not, be monitored in any manner by
means of a monitoring device.‟
Some relevant definitions are:
„“monitor” includes the recording of conversations or communications by means of a
monitoring device‟.
„“monitoring device” means any instrument, device or equipment which is used or can be
used, whether by itself or in combination with any other instrument, device or equipment, to
listen to or record any conversation or communication‟.
„“telecommunications line” includes any apparatus, instrument, pole, mast, wire, pipe,
pneumatic or other tube, thing or means which is or may be used for or in connection with the
sending, conveying, transmitting or receiving of signs, signals, sounds, communications or
other information‟.

[13] In their heads of argument, the appellants attacked the admissibility of the
evidence obtained under the Interception Act on three fronts. The first was the
grant of the initial direction by Seriti J in respect of the first appellant. The
gravamen of this was that the application did not comply in all respects with the
elaborate procedure set out in the Act. In argument, they conceded that this
matter was distinguishable from that of S v Pillay & others8 where the direction
was obtained on false information contained in the affidavit supporting the
application. In the present matter, it was correctly conceded that, whilst there
may have been minor shortcomings in the application, they were at most
technical in nature and did not go to the foundation of the application.

[14] The second point of attack was that the Interception Act did not provide
for the interception of cellphone communications. This was not addressed in
argument but was also not expressly abandoned. The reasoning was that,
because cellphones were not operative in South Africa when the Act was

8 S v Pillay & others 2004 (2) SACR 410 (SCA).

promulgated and because there has been a subsequent amendment to the Act
which makes explicit mention of this form of communication, the Act did not
provide for interception of that form of communication. As has been seen in the
section and the relevant definitions, however, this submission does not bear
scrutiny. It was dealt with in S v Cwele & another,9 where Koen J rejected a
similar submission. In the light of the diffidence in advancing this argument
before us, I need only say that I do not disagree with the finding in Cwele that
this form of communication is included in the Act.

[15] The third point of attack was directed at the finding of the court below
that, even if the application did not strictly comply with the Act, the evidence
obtained as a result of the direction was nevertheless admissible. A failure to
obtain evidence within the strict confines of the Act means that it falls outside
the protective umbrella provided by the Act and results in a violation of the
right to privacy. Such evidence may be rendered inadmissible under s 35(5) of
the Constitution which provides:
„Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded
if the admission of that evidence would render the trial unfair or otherwise be detrimental to
the administration of justice.‟
A number of factors meriting consideration in this enquiry were mentioned in
Pillay, without these being regarded as exhaustive. These were:
„. . . the kind of evidence that was obtained, what constitutional right was infringed, was such
infringement serious or merely of a technical nature and would the evidence have been
obtained in any event.‟10

[16] On the facts of that matter, there were three primary considerations. The
direction had been obtained by way of false information in the affidavit
supporting the application, the evidence obtained under the Interception Act

9 S v Cwele & another 2011 (1) SACR 409 (KZP).
10 Paragraph 93.

was supplemented by additionally tainted evidence by way of a statement
obtained by undue influence and there were other means of investigation
available. The concern was therefore expressed that:
„In our view, to allow the impugned evidence derived as a result of a serious breach of
accused 10's constitutional right to privacy might create an incentive for law enforcement
agents to disregard accused persons' constitutional rights since, even in the case of an
infringement of constitutional rights, the end result might be the admission of evidence that,
ordinarily, the State would not have been able to locate.‟11

[17] The court below was alive to the relevant principles and set out clearly
several features which weighed in the scale in favour of the admissibility of that
evidence. When the appellants were asked whether they could make any
submissions to the effect that the discretion was wrongly exercised, they
candidly conceded that they could not do so. The deficiencies were of a purely
technical nature. There was nothing misleading said in the application. The
procedure in the Interception Act was followed as closely as possible. The
monitoring of the conversations was the only means to investigate. In this
regard, Captain Sizane testified that, since the suspects were all members of the
SAPS and because of the endemic corruption therein, he could not use any other
investigative tools without jeopardising the investigation. Not only was the
exercise of the discretion a proper one but, in my view, it was correct and, in the
circumstances of the matter, to have excluded that evidence would have led to a
failure of justice. The provisions of s 35(5) therefore did not serve as a basis to
exclude the evidence obtained pursuant to the directions and the admission of
the evidence by the court below cannot be impugned.

[18] The court below dealt in extensive detail with the evidence on each count.
This included setting out the intercepted communications which specifically

11 Paragraph 94.

bore on the counts in question. The picture that emerged was a clear one. The
first appellant was managing the operations of the other two appellants,
informers, drug dealers and Shange in seizing and onselling drugs.

[19] In brief, the evidence on counts 6 and 7 was as follows. One Kokoeng
had been an informer for the first appellant when he was stationed at
Vereeniging. When the first appellant was transferred to become the head of the
West Rand Organised Crime Unit, he arranged for Kokoeng to be transferred
there. He introduced Kokoeng to the second appellant and Shange as being the
two loyal juniors who would be running around with him. After a successful
raid for drugs, the second appellant misled Kokoeng, saying that it had been
unsuccessful. When Kokoeng discovered this, he phoned the second appellant
who undertook to straighten it out. The second appellant arranged to meet him
in Randfontein with his friend Bogopane. They met the second appellant at a
church there and he handed to them some cash and a stash of drugs for which
they were to find a buyer. When Bogopane went to meet a prospective buyer, he
was arrested. As a result he phoned the first appellant who promised to solve the
problem. Whilst he was in the holding cells at Randburg, the second appellant
visited him and told him that Shange had told him the arrest was unlawful. The
arrest of Bogopane in possession of drugs was confirmed by a reserve police
officer who was mystified as to why he was never called to testify in the case
against Bogopane. The substances found in his possession were sent for analysis
and found to be cocaine, ecstacy and crystal methaqualone, all prohibited
substances under the Drugs Act. Despite this, the charges against Bogopane
were withdrawn. The police occurrence book recorded that Bogopane was
released by the second appellant and Shange on the basis that there was no
evidence which connected him to the offence. The second appellant was the
investigating officer and the docket subsequently went missing. The court
below correctly convicted the first and second appellants on these counts.

[20] I turn to consider counts 9, 10, 11 and 13. The evidence of Mr Pretorius,
an employee of Swissport Cargo, was that on 3 October 2007 he was
approached by three police officials. They introduced themselves as
Mokgosane, Shange and Jwili – the first and last also being the names of the
third and second appellants respectively - from the West Rand Organised Crime
Unit and told him that they were looking for a parcel. They showed him an
airways waybill which corresponded with the parcel they were looking for and
told him the parcel contained cocaine. He was requested to contact them when
the person came to fetch the parcel. They took the parcel with them for
safekeeping. The parcel weighed 189 kilograms and they loaded it onto a
pickup truck with a forklift. He contacted them when the person came to collect
the parcel and all three returned and took the person with them.

[21] Captain Scott was approached telephonically on 2 October by Shange to
obtain authorisation to do a controlled delivery of the consignment. He received
a written request the following morning but heard nothing more. The substance
taken was tested and found to be ephedrine, a scheduled substance under s 3 of
the Drugs Act. Only 30 000 grams of this was submitted for analysis and
subsequent destruction. According to the transcripts of the intercepted
communications, the controlled delivery was arranged by the appellants. On
3 October, the third appellant told the first appellant during a conversation
which was intercepted that he had taken possession of the ephedrine and that a
buyer had already taken two bags and that more would be supplied the
following day. The third appellant told the first appellant that he would let him
have R1 million that evening. This arrangement was confirmed by Shange in a
conversation with the first appellant where they congratulated each other on a
successful job. There were further communications concerning payment where
it was indicated that R425 000 had been received and that another R1 million
was expected.

[22] Count 12 related to an incident where an employee of the South African
Revenue Service, stationed at OR Tambo airport discovered 5.7 kilograms of
cocaine in a container with the assistance of a dog. The second and third
appellants and Shange arrived in the search area and informed her that they
were waiting for that shipment and were to take it by way of a controlled
delivery. They were not authorised to be in the search area and were also not
accompanied by an authorised person as was required. They were also unable to
produce documents to show that they were entitled to do a controlled delivery
with the shipment. After they had been asked for those documents, they
disappeared. This attempt at theft of the consignment was also referred to in the
transcripts of the phone calls intercepted under the Interception Act.

[23] In addition, it was clearly shown by a forensic audit of the financial
affairs of the appellants that, in 2007, all three appellants received moneys in
excess of their salaries and for which they could not account. The first appellant
received R1 044 169.61, the second appellant R69 679.61 and the third
appellant R56 430.56. Many of the intercepted communications revolved
around the amounts which had been negotiated with purchasers and how
payments were being made to the appellants. No point would be served in
repeating the analysis of the court below. In argument before us the findings and
reasoning of the court below were not seriously challenged.

[24] Counts 1 and 2 related to the first appellant managing an enterprise as
defined in the POCA and the other two participating in it. Taking into account
the other offences, all of which took place during 2007, it is clear that the state
proved that the appellants were associated with each other in fact in a pattern of
racketeering activity managed by the first appellant and participated in by the
second and third appellants.

[25] All of this compelling evidence required an explanation. The failure of
any of the appellants to call countervailing evidence placed them at risk.12 This,
too, was conceded in argument. In my view, considering the evidence in its
totality, the court below correctly found that the state had proved its case
beyond reasonable doubt. There is therefore no basis on which to set aside the
convictions.

[26] As regards the sentences, despite an invitation to do so, none of the
appellants was able to point to any misdirection by the court below. Neither
were they able to submit that the sentences were so startlingly inappropriate as
to induce a sense of shock. As a result, this court is not entitled to interfere.

[27] In the result, the appeals against the convictions and sentences of all three
appellants are dismissed.

___________________
T R Gorven

Acting Judge of Appeal

12 Osman & another v Attorney-General, Transvaal 1998 (2) SACR 493 (CC) para 22; S v Boesak 2001 (1)
SACR 1 (CC) para 24.

Appearances

For First Appellant:
C Meiring
Instructed by:
Dolf Jonker Attorneys, Bryanston
Symington & De Kock, Bloemfontein

For Second & Third
Appellants:
WB Ndlovu

For Respondent:

I Bayat

Instructed by Director of Public Prosecutions

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

25 March 2015

STATUS

Immediate

Please note that the media summary is for the benefit of the media and
does not form part of the judgment.

JWARA v STATE (916/2013) [2015] ZASCA 33 (25 March 2015)

The SCA today dismissed an appeal by the three appellants who were, at
the time, members of the West Rand Organised Crime Unit of the South
African Police Service. The appeal against their convictions related to
various offences under the Prevention of Organised Crime Act 121 of
1998 by way of managing and participating in an enterprise involved in
racketeering through dealing in drugs, obstruction of justice, theft and
fraud. The SCA held that evidence obtained under the Interception and
Monitoring Prohibition Act 127 of 1992 was properly admitted and that
the State had proved the charges beyond a reasonable doubt. The appeal
against the sentences was likewise refused.