Case No 18/99
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the matter of:
ABRAHAM SPIES
First Appellant
CHRISTOFFEL KRITZINGER
Second Appellant
and
THE STATE
Respondent
CORAM:   SMALBERGER, OLIVIER JJA and FARLAM AJA
DATE OF HEARING:   15 February 2000
DATE OF DELIVERY: 22 March 2000
Criminal Procedure: Right to fair trial.  Whether pre-trial conduct
of police breached accused’s right to fair trial
J U D G M E N T

/FARLAM AJA. . .
FARLAM AJA
[1] The appellants in this matter were convicted in the  regional
court  sitting at Springbok on a charge of dealing in rough and uncut
diamonds in contravention of section 20 of the Diamonds Act 56 of
1986.
[2] The first appellant was sentenced to a fine of R40 000 or
three years imprisonment plus a further three years imprisonment.   The
second appellant was sentenced to a fine of R90 000 or three years
imprisonment plus a further three years imprisonment suspended for five
years on condition that he is not convicted of a contravention of sections
18, 19(1) or 20 of the Diamonds Act committed during the period of
suspension.
[3] The first appellant appeals against both his conviction and
the sentence imposed upon him.  The second appellant only appeals
against his conviction.

[4] At the commencement of the trial the appellants pleaded not
guilty to the charge and made a written statement in terms of section 115
of the Criminal Procedure Act 51 of 1977 in which they placed the
elements of the offence as alleged in the charge sheet in dispute and
called upon the State to prove them.
In addition they made the following allegations:
(1)
that the police investigation in the case was grossly irregular
and unfair;
(2)
that the  evidence of the State was irreparably contaminated
by the way in which the investigation was conducted by the
police;
(3)
that the State did not come to court with clean hands; and
(4)
that a fair trial had been made impossible.
[5] After the appellants’ counsel had read out their plea
explanation and addressed the court shortly in elucidation thereof, he

asked the court to order disclosure to the defence of the contents of a
departmental file which related to the appellants and which had been
opened long before the day on which the appellants had been arrested.
He explained that the first entries in the police docket, which had been
disclosed to the defence, were made after the appellants were arrested but
that,  as what he called the “process” leading up to the appellants’ arrest
began a long time before the arrest,  there had to be other notes which
had to be disclosed to the appellants.   He stated that the prosecution had
informed him that there was another file on the case which contained
witnesses’ statements, at least one of which was not in the police docket,
and a complete investigation diary which apparently contained far more
information than appeared in the investigation diary in the police docket.
This file, which the appellants’ counsel called “the secret file”, had been
withheld from the prosecution until the morning when the trial was due to
begin.

[6] In reply the prosecutor stated that he had been instructed by
the senior public prosecutor not to make the departmental file available
to the defence.  He stated that he had only had a brief opportunity to
peruse the contents of the file and  asked for an adjournment to enable
him to study the file properly.  The adjournment asked for was granted
and thereafter the prosecutor  stated that he had given a copy of the file
to the defence which had also been afforded the opportunity to look at
the originals.   The appellants’ counsel then asked for a further
adjournment to enable him to study the file and stated that it had been
agreed between the prosecution and himself that the investigating officer
would be called first and that he intended referring in the course of his
cross-examination of the investigating officer to the contents of the file.
[7] After the appellants’ counsel had been given the opportunity
he requested to study the file, the prosecutor called, as his first witness,
the investigating officer Captain S W Lang, who was the second in

command of the Diamond and Gold Branch of the S A Police Service in
Springbok.   He stated that after certain preliminary investigations, which
had been done by Sergeant Groenewald and a police informer, had
revealed that the first appellant and another person were interested in an
illegal diamond transaction it was decided to launch a trapping operation
in which State diamonds to the value of R446 363 were to be offered for
sale to the first appellant and the other person.
On the 21st  October 1995,  42 uncut diamonds were
handed by his colleague Captain Van Niekerk to Detective-Sergeant
Farmer while 38 uncut diamonds were handed over to  Sergeant
Groenewald.   The witness, Captain Van Niekerk, Inspector Meeding,
Detective-Sergeant Farmer and  Sergeant Groenewald thereupon
proceeded to the hotel at Nababeep where Farmer and Groenewald had
reserved a room while the witness, Van Niekerk and Meeding reserved
another .   Some time later Groenewald and the second appellant came

out of the room which had been reserved by Farmer and Groenewald.
The witness went into the room where he found the first
appellant, Farmer and the police informer.   Thereafter Van Niekerk,
Groenewald, Meeding and the second appellant also came into the room.
After Groenewald had made a report of what had happened from the time
of the preliminary investigation to which I have referred until the
transaction which preceded the departure of Groenewald and the second
appellant from the room, Farmer, Groenewald and the appellants were
searched.   Farmer and the first appellant had nothing of interest in their
possession.   Groenewald had R150, which had been in his possession
before he went to the hotel,  and a piece of paper on which was written
the first appellant’s telephone number.   The second appellant was in
possession of an envelope containing the diamonds which had earlier
been handed over to Groenewald and Farmer.   Also in the room was a
briefcase in which were found a pistol belonging to the first appellant, an

electronic diamond testing device, a diamond scale, a jeweller’s
magnifying glass and a piece of paper on which calculations had been
made.  Farmer then took out of a cupboard in the room a plastic bag
containing R145 000.
The witness stated that the appellants were arrested together
with the informer,  against whom the charge was subsequently withdrawn.
[8] In his cross-examination of Captain Lang counsel for the
appellants confined his questions in the main to the departmental  file, the
way the witnesses’ statements had been drawn up and the fact that the
witnesses had conferred together before the trial so as to eliminate
discrepancies in the evidence they were to give.
[9] At no stage was the appellants’ version as to the events of
the 21st October 1995 put to the witness nor was it suggested that his
evidence as to what happened on that day in the presence of the
appellants was incorrect.

[10] What emerged during the cross-examination of the witness
was that the statements of the State witnesses were all signed on or after
the 11th October 1995 after the witnesses had conferred together in an
attempt to ensure that they did not contradict each other in their evidence.
(Whether two witnesses got together for this purpose and then two others
or all five State witnesses had what can be described as a joint
conference for this purpose is not clear - but nothing turns on the point.)
Thereafter the witnesses’ statements were given various dates from the
30th October to the 2nd November 1995,  plainly to create a false
impression that they were made separately and on different occasions.
[11] In addition to Captain Lang four other witnesses testified for
the State, viz Captain van Niekerk, Sergeant Groenewald, Detective-
Sergeant Farmer and  Inspector Meeding.
[12] On the merits  Van Niekerk’s evidence covered the same
ground as that of Lang which I have already summarised.   Once again

the appellants’ counsel confined his cross-examination to  topics similar
to those covered during his cross-examination of Captain Lang and did
not deal with the events which led up to the arrest of the appellants in the
hotel room in Nababeep on the 21st  October 1995.
[13] Sergeant Groenewald testified that on the 19th October
1995, that is to say two days before the arrest of the appellants at the
hotel at Nababeep, he and the police informer went to Kuruman where
they met
first appellant and another person and it was arranged that a further
meeting would take place on the 21st October 1995.
On the 21st October, as Captain Lang had testified, 38 uncut
diamonds were handed to him and 42 to Farmer.  He and Farmer then
proceeded to the Nababeep Hotel.   At about 1.15 pm the first appellant
and the informer came to the hotel room where he and Farmer were.
Later the second appellant joined them.   He was carrying a  briefcase.

He asked where the diamonds were,  whereupon the witness asked him
where the money was.   The first appellant opened the briefcase which
was full of notes.   The transaction was then discussed.
At the request of the second appellant the diamonds were
produced.   The second appellant weighed them and told the first
appellant how many carats there were, which first appellant then wrote
down on a piece of paper.   The second appellant tested the diamonds
with a diamond tester and said that they were of good quality.   After all
the diamonds had been weighed and tested the second appellant asked
how much Groenewald and Farmer wanted for them.   Groenewald
replied that they were looking for an amount of R450 000.   The second
appellant said that this was too much and that he knew that the
Portuguese were willing to pay R600 per carat and that he was willing to
pay R800 per carat.  After further discussion a price of R200 000 was
agreed upon.   The money in the briefcase was then counted by Farmer,

who said it was R145 000, whereupon it was agreed that the second
appellant would bring the remaining R65 000 to the witness the following
week.  (The difference between the amount paid over and the agreed
price was actually R55 000, the amount of R65 000 being an adding
mistake made by one of the parties.)
Farmer then put the money in a plastic bag which he placed
in a wardrobe in the hotel room.  The second appellant put the three
packets of diamonds in an envelope and pushed it into his underpants.
The witness and the second appellant then left the room after which the
witness gave the pre-arranged signal.   Van Niekerk, Lang and Meeding
then appeared.   Shortly thereafter the appellants were arrested.
[14] Although the cross-examination of  Groenewald was
devoted in the main to the compilation of his statement in collaboration
with Farmer, the discussions he had with Farmer in an attempt to ensure
that there were no discrepancies in their evidence  and the fact that he

studied his statement carefully before giving the evidence, he was also
asked a few questions about what happened on the 21st October 1995.
One of the questions related to whether liquor was consumed in the hotel
room.   He conceded that this was correct and that he thought that
everyone in the room had drunk brandy,  if he remembered correctly.
He explained that he had drunk liquor,  although  he was on duty,
because he was posing as a “smokkelaar”.   He was also asked about the
computational error in terms of which there was an outstanding balance
of R65 000 instead of R55 000 on the purchase price.  He replied that he
realised at the time of the transaction that the amount of R65 000 was
incorrect but as he knew it would never be paid over he did not bother
to put it right.   He was also asked who handed the money over to
Farmer.  His answer was the first appellant did so by throwing it out from
the briefcase onto the bed and telling Farmer, who was sitting on the
other side of the bed, to count it.

The appellants’ version in respect of the merits was not put
to the witness.
[15] It is unnecessary to summarise the evidence of Detective-
Sergeant Farmer  because he added nothing to the version of events given
by the previous State witnesses.  Once again the appellants’ counsel
refrained in the main from questioning him on the merits of the matter and
concentrated his attack on the manner in which the witness’s statement
was prepared together with that of Groenewald and the fact that he
studied it carefully, in order, as he said,  to refresh his memory before he
testified to it but, as in the case of Groenewald, there was some limited
cross-examination on the merits.   Counsel asked Farmer whether  liquor
was consumed in the hotel room.  The witness stated that the appellants
ordered a bottle of liquor and that he and Groenewald each drank about
two tots of liquor.   The appellants’ counsel also put it to the witness that
the money was not handed over to him by the appellants.    The witness

replied that first appellant threw the money out from the briefcase onto
the bed and said that the money was there.   The appellants’ version on
the merits was not put to him.
[16] The last witness for the State was Meeding, who added
nothing to what had been covered in the evidence of the earlier witnesses.
He also was not cross-examined on the merits.
[17] After he testified,  the State case was closed whereupon the
appellants’ counsel closed the defence case without calling any evidence.
[18] The regional magistrate who tried the case came to the
conclusion that the contention  that the conduct of the police had entailed
a denial of the appellants’ fundamental right to a fair trial could not be
sustained.   He was satisfied that the version of events given by the police
witnesses,  which was uncontradicted,   was corroborated by the fact that
it appeared to be common cause that the money confiscated by the
police belonged to the second appellant and also by the evidence of the

other goods seized after  the arrest of the appellants.   He was
accordingly of the view that “any danger which might have been said to
be inherent in the approach of the police to the effect that the combined
version was possibly untrue or so unreliable that there  was no prospect
of the accused’s being guaranteed a fair trial can safely be dismissed.”
[19] An appeal to the Cape Provincial Division of the High Court
was dismissed.   In the course of her judgment Traverso J, with whom
Louw J concurred, said that the question as to whether an accused’s
fundamental right to a fair trial has been breached will depend on the facts
of each case.   In this regard reference was made to the statement made
by Kriegler J in Key v Attorney General, Cape Provincial Division and
Another, 1996 (4) SA 187 (CC) (at 195 G - 196 B, para [13] ), in the
context of the admissibility of unconstitutionally obtained evidence,
which is in the following terms:
“In any democratic criminal justice system there is a
tension between, on the one hand, the public interest in

bringing criminals to book and, on the other, the equally
great public interest in ensuring that justice is manifestly
done to all, even those suspected of conduct which would
put them beyond the pale.  To be sure, a prominent feature
of that tension is the universal and unceasing endeavour by
international human rights bodies, enlightened legislatures
and courts to prevent or curtail excessive zeal by State
agencies in the prevention, investigation or prosecution of
crime.  But none of that means sympathy for crime and its
perpetrators.   Nor does it mean a predilection for technical
niceties and ingenious legal stratagems.   What the
Constitution demands is that the accused  be given a fair
trial.  Ultimately, as was held in Ferreira v Levin, fairness is
an issue which has to be decided upon the facts of each
case, and the trial Judge is the person best placed to take
that decision.   At times fairness might require that evidence
unconstitutionally obtained be excluded.   But there will also
be times when fairness will require that evidence, albeit
obtain unconstitutionally, nevertheless be admitted.”
[20] The learned judge in the court a quo dealt with the question
as to whether in this case appellants’ right to a fair trial had been
breached as follows:

“Die enigste vraag wat gevra moet word is of die optrede
van die polisie met betrekking tot die wyse waarop die
beëdigde verklarings saamgestel is tot gevolg het dat die
beskuldigdes se reg tot `n billike verhoor dermate aangetas
is dat die appellante sondermeer vrygespreek moet word of
dat die getuienis nie toegelaat moet word nie.   Gesien die
feit dat die getuienis onaangeveg staan en die getuies
deurgaans die waarheid van hulle getuienis bevestig het, kan
daar by die opweging van die belange van die beskuldigde
aan die een kant en die belange van die gemeenskap aan die
ander kant nie gesê word dat die beskuldigde se reg tot `n
regverdige verhoor dermate aangetas is dat die skuldigbe-
vinding en vonnis ter syde gestel moet word nie.   Mnr. Du
Toit het aangevoer dat in die omstandighede die getuienis
van die Staatsgetuies nie behoorlik getoets kan word nie.
Ek kan nie saamstem dat dit so is nie.   Waar `n getuie
toegee dat hy en sy getuies weersprekings in hulle getuienis
“uitgestryk” het, is dit tog manna uit die hemel vir enige
kruisverhoorder.   Maar in hierdie geval word daar nie eers
gepoog om die Staatsgetuies te kruisverhoor oor die meriete
nie.”
[21] On appeal to this Court the appellants’ counsel submitted
that the convictions of both the appellants as well as the sentences

imposed should be set aside.   He contended that both the trial court and
the court a quo underestimated the seriousness of the police conduct and
the absence of pre-trial fairness in investigatory methods and that it
should have been held that what was called the “orchestrated irregular
method of police investigation” was so serious as to disenable the
appellants from enjoying a fair trial and that both the appellants should
have been found not guilty.
[22] In support of these submissions reliance was placed on the
decision of this Court in S v Ebrahim 1991 (2) SA 553 (A), as well as the
decision of the Cape Provincial Division in S v Nortje 1997 (1) SA 90 (C)
and a dictum by Edeling J, with whom Van Coppenhagen J concurred,
in S v Hayes en `n Ander 1998 (1) SACR 625 (O) at 630 g.
[23] In S v Ebrahim, supra, the accused was abducted from a
foreign state by agents of the South African State and handed over to the
police in South Africa where he was detained and later charged with

treason, convicted and sentenced.  On appeal to this Court it was held
that the court in which Ebrahim was convicted lacked jurisdiction to try
him because his abduction was unlawful.   The rule of the Roman Dutch
law that a court before which a person who had been illegally arrested in
another area of jurisdiction by agents of the state in which the prosecution
was to take place had no jurisdiction to try him is still, so it was held, part
of our law: see the reported judgment at 579 F - G and 582 B.
At 582 D - E the following was said:
“Wanneer die Staat self `n gedingsparty is, soos
byvoorbeeld in strafsake, moet dit as `t ware ‘met skoon
hande’ hof toe kom.  Wanneer die Staat dan self betrokke
is by `n ontvoering oor die landsgrense heen soos in die
onderhawige geval, is sy hande nie skoon nie.”
[24] I do not think that that passage can assist the appellants in
the present matter.   Ebrahim had been abducted, as the Court found, by
agents of the South African State and his appearance before the trial
court was a direct result of that abduction, which, in terms of the

common law rule to which the Court referred, meant that the trial court
lacked jurisdiction.   The State as prosecutor was tainted by the illegal
abduction with which the State itself was directly concerned.
[25] The facts of this case differ toto caelo from those in the
Ebrahim case.  The appellants were lawfully before the court.   The
prosecution was in no way involved in, or to be held responsible for, the
conduct of the police:  to use the metaphor employed in the Ebrahim
case, it cannot be said that the hands of the prosecution in this case were
not “clean”.
[26] The facts in the Nortje and Hayes cases were similar.   In
both cases persons who would not otherwise have participated in the
purchase of uncut diamonds did so after improper pressure had been
brought to bear upon them (see the  Nortje case supra at 102 B and the
Hayes case supra, at 632 c - g).
[27] In the Hayes case a similar modus operandi as in the present

case  was followed  by the police in regard to the preparation of the
witnesses’ statements, particularly so as to eliminate discrepancies.
After quoting the evidence on the point Edeling J said (at 630 g):
“Hierdie getuienis is op sigself moontlik genoegsaam om te
bevind dat die appellante se reg op `n regverdige verhoor
daardeur verydel is.”
This was not, however,  the basis for the upholding of the
appeal in that case.   As in the Nortje case the conviction was set aside
because the accused were induced to commit the crime of which they
were convicted because of fundamentally unfair police procedures.
[28] I do not think that it can be said that the appellants in this
case were induced to purchase the diamonds in question because of
fundamentally unfair conduct on the part of the police.   The appellants’
counsel submitted that the trap was unfair because diamonds worth over
R450 000 were sold for R200 000 and were in fact handed over when
only R145 000 had been paid.  But this submission overlooks the

evidence that the diamonds were offered for sale at a price of R450 000
and it was the appellants who had brought the price down by offering
R800 per carat and referring to other buyers who only paid R600 per
carat.   There was no inordinate or unfair pressure or enticement and it
was clear from the equipment brought by the appellants  before they
knew what price was to be agreed on that they had come to Nababeep
with the intention of buying uncut diamonds.
[29] I now turn to the contention advanced on behalf of the
appellants to the effect that their constitutional right to a fair trial was
breached and that this breach was so fundamental that their conviction
should be set aside without reference to the merits of the case.
[30] In this case the fact that the statements of the State witnesses
were identical and obviously the product of a collaborative effort was
known to the defence before any evidence was led.   Copies of both
police docket and the departmental  file were in the possession of the

defence at that stage and the appellants’ counsel had been given an
opportunity to study them.   The fact that the witnesses had conferred
together so as to eliminate discrepancies was brought out at the trial as
well as the fact  that the dates of the statements in the docket were
incorrect.   As Traverso J correctly said in her judgment in the court
below the concession made by the witnesses that they ironed out
discrepancies in their evidence really amounted to manna from heaven for
any cross-examiner.
[31] In the present case, as indicated above, the appellants
included in their plea explanation in terms of section 115 of Act 51 of
1977 the allegation that a fair trial had been made impossible.
Notwithstanding this they pleaded to the charge and the trial proceeded.
At the end of the trial the magistrate was satisfied that the appellants had
not been deprived of their right to a fair trial because of the pre-trial
conduct of the police.

[32] The question that arises for consideration at this stage is
whether the appellants had a fair trial.
[33] The factors relied on by the appellants in support of their
contention that their right to a fair trial was breached were brought to the
attention of the magistrate during the trial.   If anything, they might well
have served to make it more difficult for the State to prove its case
because, if there had been conflicts of fact between the State and the
defence which the magistrate had had to resolve, he might well have been
unable to find that the State version was to be accepted beyond
reasonable doubt.    This would have been because of the necessity to
make allowance for the fact that the actions of the police witnesses when
their statements were recorded and the preparations they had made
thereafter to ensure that their evidence did not contain discrepancies and
contradictions  might have hampered the defence in the presentation of
the appellants’ case.   I do not think that the  conduct of the police in this

matter, however  undesirable or open to criticism it might have been ,
rendered it impossible for the appellants to have a fair trial.  On the
contrary, I am satisfied that their trial was fair and that the magistrate was
obliged on the evidence, in the absence of any contrary version put
forward by the defence which gave rise to a reasonable possibility that
the appellants were not guilty, to find them guilty as charged.
[34] In my  view  the appellants’ appeals against their convictions
must fail.
[35] It remains to deal with the first appellant’s appeal against the
sentence of three years imprisonment imposed upon him in addition to
the fine of R40 000 (or three years imprisonment).
[36] Unlike the second appellant, who was a first offender, the
first appellant had a previous conviction for contravening section 20 of
the Diamonds Act  in respect of which he was sentenced on the 26th June
1992 to a fine of R4000 or 18 months imprisonment, plus 18 months

imprisonment suspended for five years on condition that he was not again
convicted of an offence of, inter alia, contravening section 20 of the said
Act.
[37] The  appellants’ counsel was not able to point to any
misdirection on the part of the magistrate which vitiated the sentence
imposed in respect of the first appellant.   It follows that the test to be
applied on appeal against the sentence is that set out in S v Pieters 1987
(3) SA 717 (A) at 734 E,  viz whether the trial court could reasonably
have imposed the sentence it did.   I cannot find that the trial court could
not reasonably have imposed a sentence of imprisonment in respect of
the first appellant nor can I find that the period imposed was
unreasonable in the circumstances.
[38] The following order is made:
The appeals of both appellants are dismissed.
____________________
I G Farlam
Acting Judge of Appeal

SMALBERGER JA)
OLIVIER            JA) CONCUR