THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 130/11

In the matter between:
SELWYN WINSTON DE VRIES

First Appellant
VIRGIL LENNITHE DE VRIES

Second Appellant
JULIAN MICHAEL VAN HEERDEN

Third Appellant
LLEWELLYN SMITH

Fourth Appellant
ACHMAT MATHER

Fifth Appellant

and

THE STATE

Respondent

Neutral citation:  De Vries v The State (130/11) [2011] ZASCA 162 (28 September
2011)

Coram:
Navsa, Mhlantla and Leach JJA

Heard:
29 August 2011

Delivered:
28 September 2011

Summary: Criminal law and procedure ─ cigarettes stolen in series of hijackings
sold to appellant for distribution ─ appellant guilty of theft of cigarettes as well as of
money laundering under POCA ─ those offenses also predicate offences justifying
racketeering conviction under s 2(1)(e) of POCA ─ State entitled to prosecute all
such offences in a single prosecution ─ such not an improper splitting of charges nor
leading to a duplication of convictions

__________________________________________________________________

O R D E R
___________________________________________________________________

On appeal from: The Western Cape High Court (Cape Town), (Bozalek J) sitting as
court of first instance):
The appeal is dismissed.
___________________________________________________________________
J U D G M E N T
___________________________________________________________________

LEACH JA (NAVSA AND MHLANTLA JJA concurring)

[1] The five appellants were among eleven accused tried in Western Cape High
Court, Cape Town on a plethora of charges, including several under the Prevention
Of Organised Crime Act 121 if 1998 („POCA‟). The trial commenced in August 2005
and ran in fits and starts for some three years. It resulted in all five appellants being
convicted on some or other of the charges. The fifth appellant, who was accused no
11, was convicted of three charges under POCA and two of theft and sentenced to
an effective 5 years‟ imprisonment. With leave of the trial court, the fifth appellant
appeals to this court against his convictions, both in respect the facts found proved
as well as in respect of two special entries recorded by the trial court. The remaining
appellants were granted leave solely in respect of the first special entry. But,
although they were represented at some stage and were responsible for having
prepared the record,1 they prosecuted their appeals no further and did not appear at
the hearing. Presumably they intend to abide this court‟s decision on the first special
entry. In any event, in the light of their failure to appear I intend to proceed on the
basis that the fifth appellant alone is before us on appeal, and shall thus refer to him
henceforth as „the appellant‟.
[2] During 2003 the British American Tobacco Company of South Africa (BATSA)
was the victim of a series of armed robberies carried out by an armed gang which
hijacked BATSA trucks at gunpoint and stole their cargoes of cigarettes. On each

1 This were informed from the bar.

occasion the truck was stopped by members of the gang masquerading as
policemen (they wore police uniforms and used a vehicle with a flashing blue police
light) who called on the driver to stop. When he complied, they held him up at
gunpoint while cases of cigarettes were transferred to a waiting truck and then
removed to Gauteng for sale. The first two of these robberies occurred in the
Western Cape; the initial incident on 24 June 2003 outside Worcester and the
second on 12 August 2003 near Darling. The value of the cigarettes stolen was
considerable; R690 285 on the first occasion and R719 351 on the second. Both
robberies were the brainchildren of Selwyn de Vries, who played an active part in
their organisation and execution, and who was aided and abetted by his younger
brother, Virgil de Vries. They were, respectively, the first and second accused in the
trial in the high court.
[3] It is often said that there is no honour among thieves, and that proved to be
the case in regard to a third robbery that occurred on 2 October 2003 at Kinkekbos
near Port Elizabeth in the Eastern Cape. It had been carefully planned by Selwyn de
Vries and other members of his gang who had travelled to the Eastern Cape to spy
out the land and had selected a place suitable to carry out a similar hijacking.
However when it was suspected that Selwyn de Vries had stolen a considerable
sum of money from the aunt of Julian van Heerden,2 one of his gang members,
members of the gang fell out with one another and Van Heerden and others went off
to carry out the third robbery without the De Vries brothers. They did so using the
same modus operandi as before. Disguising themselves as policemen, they flagged
down a BATSA truck near Kinkelbos and held up the driver at gunpoint. The truck‟s
cargo was transferred to another truck being driven by Vernon James Aspeling, who
had also driven the getaway truck during the first two robberies and who later played
a substantial role in the trial of the appellant and his co-accused. Van Heerden and
the other robbers then drove off towards Gauteng leaving Aspeling following behind
in the truck carrying the spoils. However the De Vries brothers had smelled a rat.
They hastened to the Eastern Cape, arriving on the scene shortly after the incident.
Aspeling had not gone far when they drew up alongside his truck and threatened to
shoot him if he did not stop. He did, and the De Vries brothers and a companion
assumed control of the truck and took it on a different route to Gauteng. Van
Heerden and his crew learned what had happened and, once both groups of robbers

2 He was the third accused and was initially cited as the third appellant in this appeal.

had returned to Gauteng, a confrontation between them took place which resulted in
a gun-battle during which Virgil de Vries sustained a severe gunshot wound. It also
attracted the attention of the police and, ultimately, led to the arrest of the De Vries
brothers and a number of the other miscreants.
[4] As a sequel to these events, the appellant and eleven others were arraigned
for trial in the high court on various charges. It was not suggested that the appellant
had personally participated in any of the robberies but the state alleged that he had
purchased the stolen cigarettes and had received them for the purpose of resale,
well knowing that they had been stolen.  He was therefore charged with an alleged
contravention of s 2(1)(f) of POCA (count 1 of the indictment); an alleged
contravention of s 2(1)(e) of POCA (count 2 ); a number of counts of robbery with
aggravating circumstances; and three counts of „money laundering‟ in contravention
of s 4 of POCA.
[5] The matter was set down for trial on 1 August 2005. When the matter was
called that day, the prosecutor informed the court that she could not proceed as she
was still awaiting both the necessary written authority from the National Director of
Public Prosecutions („NDPP‟) required under s 2(4) of POCA and a centralisation
certificate under s 111 of the Criminal Procedure Act 51 of 1977. This led to the
matter being postponed for two weeks to enable the state to get these formalities in
order.
[6] When the matter resumed on 15 August 2005 it appeared, that following
representations received, the NDPP had decided not to authorise the prosecution of
the 11th accused cited in the charge, Denzil Boyles. The charges against him were
withdrawn and led to the appellant, who had until then been the 12th accused in the
indictment, becoming accused no 11 and the charge sheet being amended
accordingly. Following this, both the centralisation certificate and the requisite written
authority under s 2(4) of POCA, which by then had come to hand, were handed in
without objection from the defence. Thereafter the charges were duly put and the
trial eventually got under way.
[7] The trial turned into a marathon, hallmarked by unnecessarily lengthy and
tiresome cross-examination. It was also interrupted by a number of interlocutory
applications. Eventually, after some three years, it culminated in most of the accused
being convicted on various counts and sentenced to varying terms of imprisonment.

The appellant was convicted on two counts of theft arising from the two robberies in
the Western Cape, the court concluding although he had not participated in the
robberies himself, he had indeed purchased the stolen cigarettes a time when he
must have been aware that they were stolen goods. The court also concluded that
the appellant‟s actions in doing so for the purpose of resale amounted to „money
laundering‟ as envisaged in s 4 of POCA, and convicted him on two charges under
that section. Finally the court concluded that through his actions the appellant had
associated with the enterprise of the De Vries gang and had participated in its affairs
through a „pattern of racketeering activity‟ in contravention of s 2(1)(e) of POCA, and
convicted the appellant on count 2 of the indictment as well. The appellant was
sentenced to an effective total of five years‟ imprisonment with a further three years‟
imprisonment being conditionally suspended. It is not necessary to deal with the
individual sentences for purposes of this judgment as there is no appeal in that
regard.
[8] Immediately after sentence had been imposed, the appellant applied for leave
to appeal. He also applied for no less than14 special entries to be entered onto the
record of which the court a quo found all but two to be vexatious (I shall return to
them in due course). In regard to the application for leave to appeal, counsel for the
appellant indicated that a formal document containing the grounds of appeal was in
the process of being prepared and undertook to hand it in in due course. As the 27
grounds of appeal upon which the application for leave was based all related solely
to the conviction which had occurred several months earlier, it is inexplicable that a
written document containing the grounds of appeal had not been prepared. Be that
as it may, the learned judge in granting leave to appeal stated that he had decided
„not to attempt to sift the numerous grounds of appeal, many of which are interwoven
with others, but rather to allow the (appellant), through his notice of appeal, to
stipulate the grounds upon which he proposes to rely‟. Unfortunately neither the
promised grounds of appeal nor a notice of appeal were ever forthcoming, which
complicated matters both for this court as well as for his counsel who proceeded to
raise issues in respect of which leave to appeal had been neither sought nor
granted.
[9] The first issue to be decided is whether the court a quo erred in concluding
that the cigarettes stolen in the initial two robberies in the Western Cape were
indeed ultimately sold and delivered to the appellant as, if his denial of having

purchased them cigarettes is reasonably possibly true, his convictions cannot stand.
The principal state witness implicating the appellant was Aspeling. The holder of a
heavy-duty driver‟s licence who had in the past operated his own transport business,
Aspeling had also run a bottle store and a nightclub through which he had come to
know the De Vries brothers.
[10] According to Aspeling, about a month before the first robbery he was
approached by an acquaintance known as Zallie who introduced him to Julian van
Heerden (accused no 3 in the trial). At their request, he arranged the hire of a truck
which he agreed to drive in order to transport wrecked motor cars from Klerksdorp.
This proved to be a ruse on the part of Zallie and Van Heerden as they told him to
drive them to Cape Town rather than to Klerksdorp. On the way, they met the De
Vries brothers and, on arriving in the Western Cape, Aspeling eventually learned
that the reason the truck was required was to transport cigarettes which were to be
stolen from BATSA. He seems to have had no difficulty in falling in with the plan and
drove the truck not only to the scene where the robbery was carried out, but
thereafter back to Cape Town and, eventually, via a circuitous route back to
Gauteng.
[11] On reaching Gauteng, Aspeling drove directly to Selwyn de Vries‟ home in
Ennerdale where 163 cases containing cigarettes were initially offloaded but were
later repacked into the truck. Aspeling testified that he then drove the truck to
Lenasia, following Virgil de Vries and Van Heerden who were travelling in another
motor vehicle. They led him to a nursery in Lenasia where the cases of cigarettes
were offloaded onto pallets. While there, he saw Virgil de Vries together with the
appellant who was dressed in Muslim attire. At some stage Virgil de Vries addressed
the appellant as „Bra Achie‟ and told him he needed the parcel. The appellant
immediately produced a bundle of bank notes totalling exactly R10 000 and gave it
to Virgil de Vries.  It was the exact amount needed to pay the balance due in respect
of the hire of the truck and Virgil de Vries, in turn, handed it to Aspeling to enable
him to make the payment. Several days later at a meeting held at Selwyn de Vries‟
home, Aspeling was paid R53 000 as his share of the proceeds of the robbery.
[12] Several weeks later, at the request of Selwyn de Vries, Aspeling again hired a
similar truck and agreed to participate in the second robbery. He described the
events surrounding the robbery in detail and how he had again driven back to
Gauteng in the truck bearing the stolen cigarettes which, once more, ended up being

finally offloaded at the appellant‟s nursery in Lenasia. Aspeling stated that the
appellant was there at the time and gave instructions to his workers to assist in the
unloading.
[13] For completeness, I should mention that Aspeling also testified about the
planning of the third robbery in the Eastern Cape, the execution of that robbery and
the subsequent hijacking of the hijacked cargo of cigarettes. He also described how
after the latter event he had been taken by the De Vries brothers to a house in
Comaro where the cigarettes were left in a garage, and that he had heard Virgil de
Vries making telephonic arrangements with the appellant for the cigarettes to be
collected. He later ascertained that the cigarettes had vanished from the garage and,
together with Van Heerden and others, went to confront the appellant at his place of
business and demanded to be paid. The appellant telephoned Virgil de Vries and an
arrangement was made for Aspeling, Van Heerden and the others to go to the home
of Selwyn de Vries. They were on their way there when the confrontation and gun
battle mentioned earlier took place.
[14] The appellant denied all the allegations involving him in these events and
suggested they were figments of Aspeling‟s imagination, probably designed to cover
up the true identity of the actual purchaser of the stolen cigarettes.   Appellant‟s
counsel on appeal sought to criticise Aspeling‟s  reliability, suggesting that as he had
not identified the appellant at an identification parade his identification of him in court
was no more than a so-called „dock identification‟ and thus inherently unreliable. Of
course the presence of an accused in the dock may sometimes cause a witness to
wrongly assume that he or she is the responsible person. But this is not such a case.
Aspeling testified about three occasions when he went to the appellant‟s premises
and saw the appellant. It is not the appellant‟s case that Aspeling could be mistaken.
He contends that Aspeling‟s testimony regarding the delivery of the cigarettes at his
nursery in Lenasia after the first two robberies and the approach Aspeling and Van
Heerden made to him to demand payment for the cigarettes stolen in the third
robbery, is deliberately false. In these circumstances there is no room for a possible
mistaken identification. Either Aspeling lied or he told the truth.
[15] The court a quo believed Aspeling. It subjected his testimony and credibility
as a witness to exhaustive scrutiny. In doing so, it emphasized that Aspeling had
testified in great detail in regard to the various roles that individual participants had
played in the material events. So great was his assurance in doing so that one of the

counsel who appeared for certain of the accused complemented him on the faultless
delivery of his evidence in chief. Importantly he was in no way shaken by lengthy
and harrowing cross examination and, as appears from the following extract of six
paragraphs from the judgment which are worthy of repetition, impressed the trial
judge as a witness:
„[73]
This Court had an extended opportunity to observe the witness. He was, as was put
to him on several occasions by counsel, clearly a man of considerable intelligence. He was,
furthermore, articulate with a confident and assertive personality. He appeared to bear no
particular malice or resentment against the accused despite oblique references to incidents
which he regarded as threatening to his or his wife‟s safety and that of his son by his first
marriage. This lack of malice was borne out by the fact that he had no hesitation in testifying
that certain of the accused were not involved in certain of the robberies. So for example (he)
testified that accused 6, 7 and 10 were not involved in the first robbery and that, in relation
to the third robbery, accused 10 did no more than pick up accused 1 at the Kroonvaal toll
plaza.
[74] For the most part Aspeling appeared to enjoy the battle of wits involved in his cross-
examination. This was manifest in his tendency to sometimes become somewhat
argumentative under cross-examination, to ask the cross-examiner questions and to argue
his own position or to seek to demolish the position being advanced by counsel on behalf of
one or other of the accused. Notwithstanding these criticisms Aspeling‟s evidence as a
whole and in cross-examination was most impressive. Counsel for accused 11, Mr
Spangenberg, placed great reliance on what he argued was Aspeling‟s failure to answer a
critical question in cross-examination. This incident must be seen in context, however. In the
first place it occurred towards the end of Aspeling‟s marathon stint in the witness box and
towards the end of his lengthy cross-examination. The cross-examination in question was at
times aggressive if not ill-tempered with neither the cross-examiner nor Aspeling prepared to
give an inch. Aspeling referred to it as a “tug of war”. Its tone was evidenced by State
counsel‟s objections to aspects of the cross-examination as being “bullying” and “sarcastic”.
[75] Towards the end of his eleventh day in the witness box Aspeling declined to answer
further questions concerning the issue of Zallie misleading him as to the true purpose of the
trip to Cape Town. He did so on the basis that the answer would become “too lengthy”. He
continued to answer all other questions until Court adjourned for the day shortly thereafter.
The following morning at the re-commencement of his cross-examination, Aspeling
immediately declared himself willing to answer any further questions on the topic. He
explained that he and the cross-examiner had “started on a rocky road” the previous day.
Asked by the cross-examiner why he had refused to answer the previous day he explained,

“but to me, it seemed as if we were at a type of war or something”. In my view the
explanation furnished by the witness for his refusal to answer the question the following day
after more mature reflection of his position largely negated any criticism that this incident
adversely affected his credibility or indicated an inability to answer was entirely credible.
Further, his preparedness to answer the question the following day after more mature
reflections of his position largely negated any criticism that this incident adversely affected
his credibility or indicated an inability to answer the question.
[76] Notwithstanding the extremely favourable impression which Aspeling made as a
witness, his evidence was not without fault. I have already alluded to the improbability of
aspects of his evidence relating to how he was drawn into the first robbery. A similar
criticism can perhaps be levelled at his evidence regarding his initial false explanation to his
accomplices as to what had happened to him whilst driving away from the scene of the
Kinkelbos robbery with the cargo of cigarettes. Aspeling‟s explanation of his behaviour in
this regard is that he did not want to disclose accused 1 and 2‟s role in the post-Kinkelbos
hijacking because he wished to avoid the spectre of his accomplices charging off to
Johannesburg to engage in a violent confrontation with accused 1 and 2. This explanation
cannot be rejected out of hand since, given his intelligence and the fact that he‟d already
made the suggestion to accused 1 and 2, it seems clear that Aspeling had already then
seen the possibilities of negotiating with accused 1 and 2 for a share of the proceeds of the
robbery.
[77] Aspeling impressed as someone who had decided to make a clean breast of things
and was quite prepared to admit to the criminal actions in which he had been involved. He
revealed himself as someone who kept cool in a situation of crisis or pressure and as
someone who would invariably talk his way out of a tight corner rather than resort to
violence or threats of violence. As far as accomplice witnesses are concerned, I have never
previously encountered a witness who testified over so wide a terrain and in such great
detail but with so little damage being done to his evidence. The above observations were
made and impressions formed, on a prima facie basis, after hearing Aspeling testify in
February 2006. Given the elapse of more than two years before argument was eventually
heard I re-read his transcribed evidence in full after hearing argument which transcription
was available to counsel throughout. If anything, this re-reading strengthened my first
impressions of his evidence arrived at more than two years before.
[78] In summary then, Aspeling‟s evidence, although not flawless, contained no material
contradictions or inconsistencies. What improbabilities there may be in his evidence are not
of such a degree as to render his veracity suspect . . ..‟

[16]    I do not think that this assessment of Aspeling as a witness can be materially
faulted and it serves as a riposte to many of the criticisms levied against him on
appeal. Moreover, the learned judge was acutely aware of the danger of relying
upon the evidence of a single witness, particularly one who was an accomplice, and
therefore concluded that it would not be safe to rely on Aspeling‟s identification of
the various accused without some additional safeguard speaking for its reliability. In
the appellant‟s case he found such a safeguard in his untruthful evidence in regard
to the security arrangements at his business premises in Lenasia.
[17]    A photograph of the entrance of the appellant‟s nursery in Lenasia was
produced which showed a high double storied building, referred to as the
„guardhouse‟, immediately adjacent to a large sliding gate. Aspeling testified that this
building and gate were there when the stolen cigarettes were taken there after the
robberies and had in fact been in existence long before then.  This the appellant
denied. He alleged that the foundations of the guardhouse had only been laid in July
2003; that on 5 August 2003, his birthday, the wall was still only a few bricks high;
and that the guardhouse had only been finally completed in February 2004. In
purported proof of this, the appellant handed in an invoice relating to a payment
made for the construction of the guardhouse in September 2003 and called the
alleged builder, John Mangongwa, as a witness to testify that he had only built the
guardhouse during the second half of 2003. The appellant therefore alleged that
Aspeling was untruthful and that he had in fact never been to the appellant‟s
premises.
[18] In order to meet this, the state successfully applied to re-open its case to
prove certain aerial photographs, allegedly taken on 2 August 2003, as well as the
opinion of a photogrammetric surveyor who testified that examination of such
photographs showed that the guard-house had been completed when they were
taken. The court a quo accepted this evidence and concluded that the evidence of
both the appellant and Mangongwa in regard to when the guardhouse was
constructed was a fabrication. It was this finding that was attacked on appeal.
[19] I did not understand the appellant to dispute the photogrammetric analysis of
the photographs or that the guardhouse had indeed been built by the time they were
taken. What was disputed, however, was whether the photographs were taken on 2
August 2003 as the state alleged, the appellant arguing that the state had failed to
prove that to have been the case.

[20] The state sought to prove the date of the photograph through the evidence of
Meshack Thathane, an employee of AOC Geomatics, a company that had been
employed by the local authority to map the area. The records of that company reflect
that the photographs were taken on 2 August 2003 and that Thathane was the
camera operator who did so. He described the process used to take aerial
photographs and how the a film is then removed from the camera and conveyed to
the company‟s offices in a film canister. On each occasion a logbook with flight
details, including details of the film used, is completed. The logbook relating to 2
August 2003 was completed in his hand, save for certain entries made by the
laboratory technician including the film number, V13928. Thathane confirmed that he
had been the person who took the photographs on that day, and his evidence in that
regard was not really challenged. All that was put to him was that he relied on the
logbook to establish the date, to which he replied in the affirmative.
[21] The aerial photographs in question were processed from negatives on a film
bearing the number V13928. But as that number had been written into the logbook
by the technician and not by Thatane, and as the technician was not called, the
appellant argued that the entry was hearsay and that the state had therefore not
established that the photographs had indeed been taken when Thathane said they
were.
[22] Thathane not only described the customary process which was followed in
which the technician wrote the full number onto the log during the course of the
processing procedure, but went on to describe how he was involved in the checking
process after the films had been processed. This involved making copies of the
photographs and laying them out to see that all was in order for the purposes of
mapping; all of which was generally done within a few days. In these circumstances,
as it would have been readily apparent to all concerned in the mapping process if
photographs were printed that were not of the area photographed for mapping a few
days earlier, the inference is irresistible that the prints which were processed and
used in that process were those he had taken shortly before – and that the
company‟s records were therefore accurate.  Moreover, it was never directly put to
Thathane that the photographs were in fact not taken on the day that he said. Had
he been specifically challenged in that regard, he might well have been able to
provide a satisfactory explanation. It was also the undisputed evidence of Mr Slough,
who had been involved in concluding contracts for AOC Geomatics, that the

company‟s contract to carry out the  mapping of the area in question was carried out
in 2003. Bearing all of this in mind, I am of the view that the state satisfactorily
proved that the photographs were taken on 2 August 2003. That being the case, the
court a quo correctly rejected the appellant‟s evidence that the guard house had not
yet been fully built when Aspeling said he had gone to the appellant‟s premises.
[23] Counsel for the appellant argued that even if this court were to conclude that
to have been the case, it was merely established that the appellant had been
untruthful in that regard but did not render Aspeling‟s evidence any more reliable. On
the contrary, it is trite that regard may be had to untruthful evidence or mendacity on
the part of an accused as a factor reducing the risk of relying upon an accomplice‟s
evidence3 and I am not persuaded that the court a quo erred in its approach.
[24] In truth the entire issue in regard to whether the appellant lied about the
guard-house is something of a red herring. His untruthfulness in that regard was not
the sole factor relied upon by the trial court as a safeguard in accepting Aspeling‟s
evidence. This is apparent from the judgment of the court below in which it is  stated
that Aspeling‟s evidence regarding the purchase of the cigarettes was accepted not
simply as the appellant had given false evidence „but also in the light of Aspeling‟s
evidence as a whole and the probabilities‟.
[25] Importantly, Aspeling‟s version was corroborated by a number of independent
objective facts. Thus, for example, the passenger list of the InterCape bus service
corroborated his allegation that one of the accused in the trial had travelled from
Cape Town to Port Elizabeth on 1 October 2003 as he testified; South African Police
Services insignia and several sets of police uniforms were found in a room on Virgil
de Vries‟ property when he was arrested; an invoice from the transport company
from which Aspeling had hired the truck in August 2003 reflected a payment made
by him as he had testified; a security officer at the Cape Town Waterfront confirmed
that he had clamped a red Jetta motor vehicle, an incident which Aspeling testified
had occurred when he had breakfasted there with Selwyn de Vries and others
shortly before the second robbery. All of this tends to corroborate the truth of
Aspeling‟s detailed version.

3 See S v Hlapezula 1965 (4) SA 439 (A) at 440F-G.

[26] In addition, it seems to me to be highly improbable that Aspeling would
implicate his other co-accused in events in which there can be no doubt that they did
participate, but for some unknown reason falsely implicate the appellant. It was
suggested that he did so probably in order to protect the identity of the person to
whom the cigarettes were in fact sold but it is improbable that he would have
endangered the acceptability of his entire evidence by implicating a wholly innocent
person whom he did not know and who might well be in a position to categorically
refute his allegations. Importantly, there is nothing externally visible at the
appellant‟s Lenasia nursery to indicate that he is a purveyor of cigarettes, and the
fact that he does operate a cigarette wholesaling business from those premises was
something which Aspeling was unlikely to have known unless he delivered the
cigarettes there as he said he did.  It is also not without significance that he
described the appellant as being dressed in traditional Muslim attire, which the
appellant admitted he often did, and that the appellant is indeed known by the name
„Bra Achie‟, the name Aspeling said Virgil de Vries used when addressing him.
[27] In the light of all these circumstances, even without taking the appellant‟s
mendacity in regard to the guardhouse into account, I am satisfied that the trial court
correctly accepted Aspeling‟s identification of the appellant as the person to whom
the cigarettes stolen from the first two robberies in the Western Cape were
delivered. In the light of the quantity of cigarettes and the circumstances surrounding
their delivery, the appellant must have known that they had been stolen and, as theft
is a continuing crime, it was accepted that if this court found that Aspeling‟s version
of the delivery was acceptable, the appeal in respect of the theft charges should fail.
[28] That brings me to what may be loosely called the „technical defences‟ raised
by the appellant. At this stage it is necessary to revert to the application for leave to
appeal when the so-called „special entries‟ were entered on the record for decision
by this court. Posed in the form of questions, they read as follows:
(a)
„Did the State prosecute the accused without being in possession of a valid written
authority by the National Director of Public Prosecutions in terms of s 2(4) of the Prevention
of Organised Crime, Act 121 of 1998, the authority in question being too wide and therefore
invalid. Secondly, was the centralisation directive of the National Director of Public
Prosecutions in terms of s 111 of Act 51 of 1977 invalid by reason of being wide, vague and
inherently contradictory.‟
(b)
„Was accused 11‟s right to cross-examine within the trial/s-within-the-trial unfairly
limited or disallowed at any point?‟

[29] Unfortunately, neither of these are valid special entries. As this court has
recently been at pains to point out, the purpose of a special entry is to record an
irregularity affecting a trial that does not appear from the record; and an attack upon
a ruling made by a trial court during a course of proceedings does not qualify ─ see
Staggie v The State (38/10) [2011] ZASCA 88 para 16 and Masoanganye v The
State (252/11) [2011] ZASCA 119 para 10. In regard to the first special entry, the
alleged irregularities therein set out arise from exhibits A and B handed in without
objection at the commencement of the trial and which form part of the record.
Moreover, the argument that the two exhibits were invalid due to them having been
couched in wide and vague terms was ventilated in an interlocutory application
heard during the course of the trial, and rejected in a ruling which all forms part of
the record. The second special entry set out in (b) above, relating to a ruling in
respect of cross-examination, also relates to a matter of record.  Clearly neither of
the special entries should have been made.
[30] As the appellant abandoned all reliance upon the second special entry and
did not refer thereto in argument, nothing more need be said about it. However, the
first special entry was made as both the appellants‟ legal representatives and the
learned judge in the court a quo were all under the mistaken impression that it was
appropriate to raise these issues by way of a special entry. In these circumstances it
would be unjust to penalise the appellant by refusing to hear argument on what is
raised in the first special plea, and the solution appears to me to be to regard it as a
ground of appeal and to determine the issues it raises in that way.
[31] I therefore turn to the issue of the s 2(4) POCA authorisation raised in the first
special plea. The section provides that „(a) person shall only be charged with
committing an offence contemplated in subsection (1) if a prosecution is authorised
by the National Director.‟ As already mentioned, the authority in question was
handed in without objection before the accused were asked to plead. As appellant‟s
counsel (who appeared for the appellant at the trial) freely conceded, at that stage
all concerned accepted it to be in proper form and related to the POCA charges
levied against the accused in the indictment. However shortly before the end of the
trial, a judgment in the Pietermaritzburg high court in the matter of Moodley and

others4 came to the ears of the appellant‟s legal representatives. The accused in
that matter, who were to be tried on s 2(1) POCA offences, contended that they had
been charged before the NDPP had given the necessary written authority required
by s 2(4), and launched an application seeking an order declaring the charges under
s 2(1) to be unlawful. The high court hearing the application mero motu raised the
issue that the written authorisation was too broad and „lacked the necessary
specificity‟ as details of the dates and places at which the offences were allegedly
committed had not been set out and, on that basis, upheld the application. The s
2(4) authorisation in the present case was in terms virtually identical to that in
Moodley, and so in October 2007 the appellant and each of his co-accused
launched interlocutory applications seeking orders that the POCA counts which they
were facing should similarly „be declared to have been invalidly instituted and be set
aside‟. In doing so, they relied squarely upon the high court‟s decision in Moodley
and an authorisation allegedly lacking in detail.
[32] For purposes of this application, a senior counsel was brought in to lead the
junior counsel who had been representing the appellant at the trial. He filed
extensive heads of argument which I shall mention later. On 18 February 2008, the
trial judge delivered his ruling. He found that that even assuming the high court‟s
judgment in the Moodley case to be correct, not only was it distinguishable on the
facts but the authorisation in the present case could only be challenged by way of an
application for a special entry to a higher court. Despite that, before dismissing the
application, he went on to express an obiter opinion that it was not the purpose of
the authorisation under s 2(4) to detail the nature and extent of the prosecution as
the indictment serves that purpose.
[33] It was presumably as a result of this ruling that the appellant sought his first
special entry, intending to rely on the high court decision in Moodley to attack the
certificate. Unhappily for the appellant, his argument was overtaken by events as the
high court‟s decision was set aside by this court on appeal to it by the state, the
judgment being reported as NDPP v Moodley 2009 (2) SA 588 (SCA). When the
state applied for leave to appeal, counsel for the accused abandoned the judgment
insofar as it declared the s 2(4) authorization by the NDPP to be invalid and of no

4 Subsequently reported as Moodley and Others v National Director of Public Prosecutions and
Others 2008 (1) SACR 560 (N)

force and effect. The issue was therefore not dealt with in detail by this court, but
Scott JA observed that the abandonment was clearly correct and the order of the
high court „is clearly not to be regarded as a precedent‟.5
[34] In my opinion Scott JA‟s view is clearly correct. As correctly observed by the
court a quo, the indictment contains the details of the charges upon which an
offender is to be prosecuted and I can see no good reason for those details to be
repeated in the s 2(4) authorisation. All that is necessary is for the NDPP to
authorise that the accused be charged with whatever offence under s 2(1) is alleged
in the indictment. As here the authorisation reflected the names of the appellant and
his various co-accused, and the NDPP authorised that they be prosecuted „in
respect of a contravention of ss 2(1)(e), 2(1)(f) and 2(g) of the Prevention of
Organised Crime Act 121 of 1998‟, all concerned understood that it related to the
proceedings in the court a quo.  Accordingly, that is really the end of the matter.
[35] It was also argued that even if the s 2(4) authorization was in proper form, it
had been produced too late as the appellant had already been charged with
committing offences set out in the indictment at the time the indictment containing
the s 2(1) charges was served upon him some months before, when the matter was
postponed in the magistrates‟ court for hearing in the high court. The appellant
contended that the s 2(4) authorization should have been obtained by that stage and
that it was too late to obtain and produce it immediately before the trial commenced
in the high court. This argument had been raised by the appellant‟s leading
counsel‟s heads of argument in the interlocutory application in relation to the s 2(4)
authorisation but was not a ground of appeal. In any event, in the light of the facts of
the present case, it is devoid of merit.
[36] In Moodley this court held it to be unnecessary to decide at what precise
stage a person is „charged‟ as envisaged by s 2(4), but observed that until the
accused has pleaded, the state would be at liberty to withdraw the charge and
recharge the accused once the authorisation is available, an exercise that would
serve no purpose.6 I wholly agree with that sentiment and, indeed, it is a powerful
reason to conclude that the legislature only intended a person to be „charged‟ when
the indictment is put and he or she is asked to plead. But it is unnecessary to reach

5 At para 10.
6 At 594 para 12.

a final conclusion in that regard as in Moodley, a case in which the charge had not
yet been put to the accused, this court went on to hold that once the written
authorisation was granted the prosecution was lawful.7 Applied to the present
circumstances, as the authorisation was granted and handed in before the accused
were asked to plead, the proceedings from then on (the trial itself) were lawful.
[37] Despite this, appellant‟s counsel submitted further that a valid s 2(4)
authorisation was an essential element of an offence under s 2(1) of POCA; that it
was thus essential for the state to prove that the NDPP had properly applied his
mind to the issue; and that it could not do so merely by handing in the certificate as
that would offend the best evidence rule. Accordingly, as the NDPP had not been
called, he argued that the state had failed to prove a contravention of s 2(1).
[38] This was also not an issue raised in the grounds of appeal but an argument
set out in senior counsel‟s heads of argument filed at the stage of the interlocutory
application and repeated, apparently without thought, in the heads of argument filed
in this appeal. Strictly speaking the issue is thus not properly before this court. But
there is clearly no merit in the argument. An offence under s 2(1) is committed by the
actions of the offender, not those of the prosecuting authority. The s 2(4)
authorisation is simply a procedural requirement that has to be fulfilled. It was
fulfilled in time as set out above, and that was accepted to be the case by all the
accused, including the appellant. The fact that the NDPP did not testify is therefore
no reason to upset the appellant‟s conviction on count 2.
[39] I turn to the second part of the first special entry, namely, the contention that
the centralisation certificate under s 111 of the Criminal Procedure Act was too
widely framed. The principal argument in this regard was that only the 11 accused
who stood trial after the decision not to proceed against Boyles had been taken were
named in the certificate, although reference was also made to „accused 12‟ in certain
places. The centralization certificate was obviously a sloppy piece of work.  Changes
were made to its wording in consequence of the decision to withdraw against
Boyles, and seemingly at that stage certain errors crept in. But those are clearly no
more than obvious typographical errors and, as counsel for the appellant conceded,
all concerned appreciated that the certificate related to the charges that were put to
the various individual accused. As the appellant clearly understood the certificate,

7 At 594 para 13.

and accepted it was in proper form, it hardly lies in his mouth to now complain that it
was too widely framed, and there is no room for an argument that he was
embarrassed by its vagueness.
[40] However, the appellant further argued that there was no proof that the deputy
NDPP who had signed the authorization had been duly and properly authorized to
do so. This argument, too, was one carried over into the appellant‟s argument from
the heads of argument filed by senior counsel in the interlocutory application but not
raised as a ground for appeal. It is also not an argument that can be determined by
the facts on record. The issue was therefore neither properly raised nor ripe for
decision by this court. If the appellant wished to contest the validity of the certificate,
he should have done so when it was first produced. At that stage he accepted it was
in order and for purposes for this appeal that is really the end of the matter.
[41] The appellant also argued that the manner in which he was charged resulted
in an impermissible so-called „splitting of charges‟ or „duplication of convictions‟,
leading to him being punished more than once for the same actions. This argument
was based on it being alleged in count 2 of the charge sheet  that he had
contravened s 2(1)(e) of POCA by having wrongfully and unlawfully participated in
the affairs of an enterprise (the De Vries gang) through a pattern of racketeering
activity. Details of the pattern of racketeering activity relied on were set out in
annexure 8 to the indictment. This is a list of the alleged offences in the indictment,
excluding those under s 2(1). In the case of the appellant, those offences were the
charges of theft and charges of money laundering levied against him – including the
two counts of money laundering and two counts of theft on which he was ultimately
convicted. Essentially the appellant‟s argument is that it would amount to an
improper splitting charges or duplication of convictions for the offences of which he
has been convicted to be taken into account in deciding whether he was guilty of a
scheme of racketeering activity in count 2,  and then to sentence him for each
conviction.
[42] In considering this argument it is necessary to turn to the provisions of POCA
itself. Section 2(1)(e) thereof makes it an offence if any person:
„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.‟

In s 1 „enterprise‟ is defined including „. . . 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‟ while
„pattern of racketeering activity‟ is 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.‟
[43] POCA was largely modelled upon so-called „RICO‟ statute of the United
States of America,8 from which the definitions of „pattern of racketeering activity‟ and
„enterprise‟ were directly taken. Given the generic similarity of the two statutes, it is
somewhat surprising that neither party referred us to any American jurisprudence
relating to the issue, the representative for the state merely stating that her office
had insisted that the charge sheet be drawn in the way it was: by referring to the
theft and money laundering charges as being the „pattern of racketeering activity‟
relied on to prove the POCA charge, count 2. However, the jurisprudence of the
United States is of considerable assistance in understanding why indictments are
usually formulated in this way.
[44] The Fifth Amendment of the Constitution of the United States provides that no
person shall be „subject for the same offence to be put twice in jeopardy of life and
limb‟. This has given rise to the so-called defence of „double jeopardy‟, a multi-
facetted defence which, first, protects a citizen against a second prosecution for the
same events after an acquittal on the first charge (in effect what is known in this
country as autrefois acquit); secondly, bars a convicted offender being prosecuted
once again for the same offence (similar to the defence of autrefois convict) and,
thirdly, protects against multiple punishments being imposed for the same offence
(as does the defence of „splitting of charges‟ in our law). After the introduction of
RICO and other similar statutes9 intended to combat organised crime, which
introduced racketeering offences similar to those created by s 2 of POCA, many

8 Racketeer Influenced and Corrupt Organisations statute enacted as Title IX of the Organised Crime
Control Act of 1970, codified as 18 U.S.C. §§ 1961-1968.
9 Eg the CCE statute referred to below.

accused offenders in the United States raised pleas of double jeopardy in
circumstances similar to the present. In doing so they argued that the RICO charge
(sometimes referred to as an „umbrella‟ charge10) together with the underlying so-
called „predicate offences‟ relied on to prove the racketeering activities, led them to
face either being convicted again for earlier offences in respect of which they had
already been tried, or to being sentenced twice for the same unlawful action. The
arguments in respect of those pleas were essentially the same as that upon which
the present appellant relies, namely, that having been convicted in respect of the
predicate offences it is impermissible to either convict or sentence him for the
umbrella offence of racketeering in count 2.
[45] These arguments received short shrift in the United States. In a series of
decisions the courts of that country held the umbrella offences to be separate and
discrete from the underlying predicate offences – and capable of being punished
separately.11 The reasoning for doing so was set out as follows in United States v
Crosby 20 F. 3d 480 para 8:
„The Supreme Court's decision in Garrett conclusively established that Congress intended
CCE12 to be a separate offense from its predicate acts based on the language and history of
the CCE statute.  . . . . We find the statutory language and legislative history of RICO dictate
a similar conclusion. . . .  First, RICO itself defines “pattern of racketeering activity” to include
“at least two acts of racketeering activity, one of which occurred after the effective date of
this chapter and the last of which occurred within ten years (excluding any period of
imprisonment ) after the commission of a prior act of racketeering activity.” 18 U.S.C. §
1961(5) (emphasis added). The highlighted statutory language at least suggests that
Congress expressly contemplated that a RICO defendant might be incarcerated for one or
more of the predicate offenses before being prosecuted for the RICO violation. Further,
Congress's “Statement of Findings and Purpose” reinforces this intent, indicating that RICO
was enacted to supplement rather than replace the existing predicate crimes and penalties.

10 See eg Harvard Law Review [vol 122:276 2008] at 480.
11 Compare eg United States v Peacock, 654 F.2d 339, 349 (5th Cir. 1981); Garrett v United States,
471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985); United States v Pungitore, 910 F.2d 1084,
1108 n. 24 (3rd Cir. 1990); United States v Beale, 921 F.2d 1412, 1437 (11th Cir. 1991); United
States v Gonzalez 921 F.2d 1530, 1538 (11th Cir. 1991); United States v Cyprian, 23 F.3d 1189,
1198 (7th Cir.1994); United States v O‟Connor, 953 F.2d 338, 344 (7th Cir.1994); United States v
Crosby, 20 F.3r 480, 484 (D.C. Cir. 1994); United States v Morgano, 39 F.3d 1358, 1368 (7th Cir.
1994); United States v Baker, 63 F.3d 1478, 1494 (9th Cir. 1995); Susan S Brenner RICO, CCE, And
Other Complex Crimes: The Transformation of American Criminal Law? William And Mary Bill of
Rights Journal [Vol. 2.2] (1993) 239.

12 Continuing Criminal Enterprise statute 21 U.S.C. § 849 (1988) which makes it an offence to engage
in a 'continuing criminal enterprise‟ by way of a continuing series of drug offences.

See Organized Crime Control Act of 1970, Pub.L. No. 91–452, 84 Stat. 922, 923, reprinted
in 1970 U.S.C.C.A.N. 1073. (“It is the purpose of this Act to seek the eradication of
organized crime in the United States by strengthening the legal tools in the evidence-
gathering process, by establishing new penal prohibitions, and by providing enhanced
sanctions and new remedies to deal with the unlawful activities of those engaged in
organized crime.”). Accordingly, we hold, as have other circuits, that Congress intended that
a RICO violation be a discrete offense that can be prosecuted separately from its underlying
predicate offenses . . .‟ (certain authorities omitted).
[46] In my view the same reasoning applies with equal cogency to POCA. The
definition of pattern of racketeering activity, which the state is obliged to prove in
order to secure a conviction under s 2(1)(e) of POCA, includes offences for which
the offender may already have been convicted and sentenced ─ the legislature‟s
necessary intent in this regard is to be inferred from the phrase „excluding any period
of imprisonment‟ in the calculation of the 10 year period referred to in the definition
of „pattern of racketeering activity‟. In addition, the preamble to POCA also proclaims
as its intent the introduction of „. . . measures to combat organized crime, money
laundering and criminal gang activities‟ as „. . . the South African common law and
statutory law failed to deal effectively with organized crime, money laundering and
criminal gang activities, and also failed to keep pace with international measures
aimed at dealing effectively with organized crime, money laundering and criminal
gang activities . . .‟.
[47] Due to the similarities between RICA and POCA, and bearing in mind certain
of the decisions in the United States, this court in S v Dos Santos and another 2010
(2) SACR 382 (SCA) concluded:13
„Prosecutions under POCA, as also the predicate offences, would usually involve
considerable overlap in the evidence, especially where the enterprise exists as a
consequence of persons associating and committing acts making up a pattern of
racketeering activity. Such overlap does not in and of itself occasion an automatic invocation
of an improper splitting of charges or duplication of convictions. As should be evident from a
simple reading of the statute, a POCA conviction requires proof of a fact which a conviction
in terms of the Diamonds Act does not. I can conceive of no reason in principle or logic why
our approach should be any different to that adopted by our American counterparts . . . . „

13 At para 43.

[48] In order to secure a conviction under s 2(1)(e) of POCA, the state must do
more than merely prove the underlying predicate offences. It must also demonstrate
the accused‟s association with an enterprise and a participatory link between the
accused and that enterprise‟s affairs by way of a pattern of racketeering activity.14 In
the light of this, an offence under s2(1) of POCA is clearly separate and discrete
from its underlying predicate offences and, in my view the decision in Dos Santos in
regard to this issue is undoubtedly correct.
[49] This also effectively disposes of the appellant‟s allegation that he could not be
convicted on both of the s 2(1)(e) POCA offence (count 2) as well as the underlying
predicate offences of theft and money laundering.  As POCA recognizes that past
convictions may be taken into account in establishing a pattern of racketeering, there
is no reason in either law or logic why that pattern cannot be established by proving
both the umbrella and predicate offences in the same trial, as was here the case.
This, too, was the conclusion in Dos Santos where Ponnan JA said:15
„Our legislature has chosen to make commission of two or more crimes within a specified
period of time, and within the course of a particular type of enterprise, independent criminal
offences. Here the two statutory offences are distinctly different. Since POCA substantive
offences are not the same as the predicate offences, the State is at liberty to prosecute
them in separate trials or in the same trial. It follows as well that there could be no bar to
consecutive sentences being imposed for the two different and distinct crimes, as the one
requires proof of a fact, which the other does not. Although a court in the exercise of its
general sentencing discretion may, with a view to ameliorating any undue harshness, order
the sentences to run concurrently. Thus, by providing sufficient evidence of the five
predicate acts, the State had succeeded in proving the existence of the “racketeering
activity” as defined in POCA.‟

[50] Despite this authority, the appellant persisted in an argument that it had been
impermissible for the state to have charged him with both count 2 and its predicate
offences by contending that once the prosecuting authority had decided to charge
him with an offence under s 2(1), it placed the trial procedurally into a category of
prosecution entirely different from a „normal prosecution‟ by reason of s 2(2) which
reads:

14 See eg the judgment of Cloete JA in S v Eyssen 2009 (1) SACR 406 (SCA).
15 At para 45.

„The court may hear evidence, including evidence with regard to hearsay, similar facts or
previous convictions, relating to offences contemplated in subsection (1), notwithstanding
that such evidence might otherwise be inadmissible, provided that such evidence would not
render a trial unfair.‟
[51]  In the light of this section, the appellant contended that as s 2(2) makes
serious inroads into an accused‟s normal  procedural rights by rendering admissible
evidence that would otherwise be inadmissible – including evidence of previous
convictions – the  trial in respect of offences other than those contemplated by s 2(1)
would be unfair: and for that reason an accused cannot be charged in the same
indictment with both an offence under s 2(1) as well as the underlying predicate
offences.
[52]   It was not suggested that any evidence otherwise inadmissible had in fact
been introduced to the prejudice of the appellant or which in any way compromised
his defence or rendered his trial unfair. To that extent the argument is purely
academic and it is unnecessary to consider it in any detail. Suffice it to say that the
trained judicial mind should be able to limit the effect of otherwise inadmissible
evidence to the charges in respect of which it is admissible – any s 2(1) charges –
and to exclude it from consideration in respect of charges in which it is not. Indeed
this is what occurs daily done by courts, eg in hearing trials within trials.

[53]   It may well be that the state for some reason decides not to prosecute the
predicate offences in the same indictment as an umbrella charge, but that is a matter
of prosecutorial discretion which need not detain us here.  Of course the state
should take care to ensure that the manner in which the indictment is drawn and the
evidence presented does not result in an unfair trial, but the mere framing of a
charge sheet to include both a POCA umbrella offence and its underlying predicates
does not in itself occasion unfairness. Without the appellant having established that
he was in any way prejudiced, it cannot be said that the manner in which the state
exercised its discretion in charging him was improper.
[54] In these circumstances I have concluded that there was no impermissible
splitting of charges nor duplication of sentences by reason of the appellant having
been charged on count 2 with an umbrella contravention of s 2(1)(e) of POCA as
well as the underlying predicate offences of theft and money laundering  in respect
of which he was convicted.

[55] I should mention that as a ground of appeal the appellant relied on an alleged
splitting of charges involving the theft and money laundering offences, contending
that both flowed from his dealings with the cigarettes stolen during the first two
robberies and that, once convicted of money laundering, he ought not also to be
convicted of theft as well. This argument, quite correctly, was not pursued before this
court. The statutory offence of money laundering is created by s 4 of POCA which
provides:
„Any person who knows or ought reasonably to have known that property is or forms part of
the proceeds of unlawful activities and ─
(a)
enters into any agreement or engages in any arrangement or transaction with
anyone in connection with that property, whether such agreement, arrangement or
transaction is legally enforceable or not; or
(b)
performs any other act in connection with such property, whether it is performed
independently or in concert with any other person,
which has or is likely to have the effect ─
(i)
of concealing or disguising the nature, source, location, disposition or movement of
the said property or the ownership thereof or any interest which anyone may have in respect
thereof; or
(ii)
of enabling or assisting any person who has committed or commits an offence,
whether in the Republic or elsewhere ─
(aa)
to avoid prosecution; or
(bb)
to remove or diminish any property acquired directly, or indirectly, as a result of the
commission of an offence,
shall be guilty of an offence. „
[56] By receiving the cigarettes for himself well knowing they were stolen, the
appellant made himself guilty of theft as it is a continuing crime. By proceeding to
use the cigarettes as part of his stock in trade as a wholesaler as if they were goods
lawfully acquired, and thereby disguising or concealing the source, movement and
ownership of the cigarettes and enabling and assisting the robbers to either avoid
prosecution or to remove property acquired in the robberies, the appellant clearly
made himself guilty of a contravention of s 4. Doing so involved different actions and
a different criminal intent to that required for theft. In these circumstances there was
no improper splitting of charges.
[57] It was not suggested that if Aspeling‟s identification of the appellant was
accepted and the various technical defences I have dealt with did not succeed, the

appellant was not guilty of the charges of which he was convicted. As I have found
against the appellant on all these issues, in my judgment he was properly convicted
and, as he does not seek to assail his sentence, the appeal must fail.
[58] The appeal is accordingly dismissed.

___________________
L E Leach
Judge of Appeal

APPEARANCES

For Appellant

J P Spangenberg

Instructed by

High Court Unit, Cape Town Justice Centre

Cape Town

Bloemfontein Justice Centre,

Bloemfontein

For Respondent

H C Booysen

Instruction by

The Director of Public Prosecutions

Bloemfontein

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:  The Registrar, Supreme Court of Appeal
Date:  28 September 2011
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

De Vries v The State
The five appellants were among 11 accused tried in the high court on various charges under
the Prevention of Organised Crime Act 121 of 1998 (POCA) as well as various other
offences. The trial which commenced in August 2005 ran for some three years and resulted
in all five appellants being convicted on some or other of the charges.

The five appellants sought leave to appeal. Leave to appeal was granted only in respect of the
fifth appellant, Achmat Mather. However, the trial court also made two special entries
relating to the conviction of all five appellants. The first special entry related to the
provisions of the National Director of Public Prosecutions’ authorisation of the prosecution
under s 2(4) of POCA and the centralisation certificate issued under s 111 of the Criminal
Procedure Act 51 of 1977. Only the fifth appellant appeared before the Supreme Court of
Appeal, the first four appellants seemingly having decided to abide the decision of the court
in regard to the special entries.

The state’s case against the fifth appellant, Achmat Mather, was that he had purchased large
quantities of cigarettes which had been stolen in robberies when large vehicles had been
hijacked by members of a gang. The fifth appellant had been identified as the purchaser of

the cigarettes by a member of the gang who gave evidence on behalf of the state. His
identification was attacked on appeal but the Supreme Court of Appeal today found that the
fifth appellant had been properly identified as the recipient and purchaser of the stolen
cigarettes, and that he had done so well knowing that the cigarettes had been stolen. As theft
is a continuing crime, the  court held the fifth appellant made himself guilty on two counts of
theft relating to the two incidents when he had purchased stolen cigarettes from the gang. It
also concluded that his actions in purchasing the cigarettes for resale amounted to ‘money
laundering’ as envisaged in s 4 of POCA, resulting in him being convicted on two counts
under that section as well.

It was the state’s case that, in addition to the two counts of theft and two counts of money
laundering, the fifth appellant had committed an offence of racketeering under s 2(1)(e) of
POCA. This argument had been accepted in the high court and the fifth appellant had been
convicted on that charge. It was argued before the Supreme Court of Appeal that it was
impermissible to do so as it would amount to a splitting of charges or duplication of
convictions between the racketeering charge on the one hand and the offences of theft of
money laundering on the other. This argument was rejected by the Supreme Court of Appeal
which found that the racketeering offence was a separate and discrete offence from the
underlying predicate charges of theft and money laundering.

The appeal was therefore dismissed.

---ends---