The appellant, an attorney practising in Upington, was charged as an accomplice to the unlawful importation and sale of elephant tusks, contrary to the Northern Cape Nature and Environmental Conservation Ordinance 19 of 1974. During a covert SAPS operation known as ‘Operation Rhino’, an undercover agent, Oberholzer, was used to investigate illegal trade in diamonds and protected species. To enhance the agent’s credibility, the police staged a bogus arrest for diamond dealing, with the appellant becoming involved as the agent’s legal representative. In the course of their ensuing relationship, the appellant introduced Oberholzer to Esterhuizen, who sold two elephant tusks to Oberholzer. The appellant was convicted in the Regional Court on two counts; on appeal to the High Court one conviction was set aside and the other confirmed. The present appeal to the Supreme Court of Appeal concerned the admissibility of evidence obtained through the covert operation.
The appeal was dismissed and the conviction and sentence as confirmed by the Northern Cape High Court were upheld.
The case is significant for clarifying the common-law discretion to exclude improperly obtained evidence in South African criminal procedure, particularly where the impropriety does not infringe the accused’s rights. It affirms the admissibility of evidence obtained through undercover operations under s 252A of the CPA and underscores that not all improper police conduct warrants exclusion of evidence.