Dos Santos and another v The State

The first appellant, Antonio Cesar Alves dos Santos, operated Tony’s Auto Spares in Port Nolloth, an area prone to illicit diamond dealing. Following covert surveillance by the Directorate of Special Operations and searches conducted by SAPS and the DSO, unpolished diamonds, cash and diamond-dealing paraphernalia were seized from his business and home. The State alleged that he and others were involved in an ongoing scheme of illegal dealing in unpolished diamonds, amounting to racketeering under POCA. The second appellant, Sikhospipho Derick Mbatha, was implicated through evidence that he delivered a large unpolished diamond to the first appellant. At trial, the State relied heavily on accomplice evidence from Tim and Aubrey Basson, who testified about repeated transactions involving unpolished diamonds. The first appellant was convicted on multiple counts under the Diamonds Act and one count of racketeering under POCA; the second appellant was convicted on one Diamonds Act count. Both appealed against their convictions and sentences.

The first appellant’s convictions under section 21 of the Diamonds Act were altered to section 20, but his appeal against conviction and sentence was otherwise dismissed. The second appellant’s conviction under section 21 was altered to section 19 of the Diamonds Act. His appeal against conviction was dismissed, but his appeal against sentence succeeded; the original sentence was set aside and replaced with a reduced fine and a partially suspended term of imprisonment.

The case is significant for clarifying that POCA racketeering offences are not duplicative of underlying statutory crimes such as those under the Diamonds Act, for confirming the discretionary and balancing approach to exclusion of unconstitutionally obtained evidence under section 35(5), and for restating principled guidance on the treatment of accomplice and circumstantial evidence. It also illustrates the SCA’s willingness to intervene where sentencing disparities are unjustifiable.