Antonio Cesar Alves Dos Santos and Another v The State

A task team of the Directorate of Special Operations (Scorpions) conducted surveillance of the first appellant's business (Tony's Auto Spares) in Port Nolloth from January 2003 using a covert camera. On 22 February 2003, SAPS searched the premises under warrant, seizing 153 unpolished diamonds, R55,000 cash and diamond dealing paraphernalia. The first appellant was arrested and released on bail. On 4 July 2003, another search was conducted, yielding 24 unpolished diamonds and paraphernalia. The second appellant was arrested on 3 June 2004. Both were charged with multiple contraventions of the Diamonds Act 56 of 1986, conspiracy, and racketeering under the Prevention of Organised Crime Act 121 of 1998 (POCA). The state's case relied heavily on accomplice evidence from the Basson brothers (Tim and Aubrey), who were employees involved in illicit diamond dealing at the first appellant's business. Video surveillance evidence, seized items, and telephone records corroborated the accomplices' testimony. The first appellant was convicted on five counts of dealing in unpolished diamonds and one count of racketeering. The second appellant was convicted on one count of dealing in unpolished diamonds. Neither appellant testified in their defense.

• Whether evidence obtained pursuant to a defective search warrant should be excluded under s 35(5) of the Constitution
• Whether accomplice evidence was sufficiently corroborated and reliable
• Whether the appellants' failure to testify could support an inference of guilt
• Whether the charge of racketeering under POCA constituted improper splitting or duplication of charges with the Diamonds Act offences
• Whether the interpretation of 'pattern of racketeering activity' requires prior convictions
• Whether the grossly divergent sentences imposed on the two appellants for the same transaction were appropriate

First appellant: Convictions under s 21 altered to s 20 of Diamonds Act; appeal otherwise dismissed. Second appellant: Conviction under s 21 altered to s 19; appeal against conviction dismissed; appeal against sentence succeeded. Sentence set aside and substituted with: Fine of R20,000 or one year imprisonment, with R10,000 or six months suspended for five years on condition of no further conviction under ss 18, 19, 20 or 21 of Diamonds Act during suspension period.

Section 35(5) of the Constitution does not provide for automatic exclusion of unconstitutionally obtained evidence - courts must balance whether admission would render the trial unfair or be detrimental to the administration of justice. Evidence obtained pursuant to a technically defective warrant issued in good faith will not be excluded where investigators sought judicial authorization and did not act in flagrant disregard of rights. A conviction under POCA for racketeering based on a pattern of racketeering activity does not constitute improper splitting of charges with the predicate offences under the Diamonds Act, as POCA requires proof of facts not required for the predicate offences. The definition of 'pattern of racketeering activity' in POCA does not require prior convictions - the word 'offence' means acts proved to constitute offences, not necessarily prior convictions. Circumstantial evidence must be evaluated cumulatively and in its totality, not by examining each piece in isolation. When accomplice evidence is materially corroborated and the accused fails to testify despite a strong prima facie case, this may support conviction beyond reasonable doubt.

The court observed that Port Nolloth had become a 'hotbed of illicit diamond dealing' due to proximity to diamond mines, requiring specialized task team intervention. The court noted approvingly that the investigating team chose to approach a Cape Town magistrate rather than the local one to preserve investigation integrity and prevent leaks, demonstrating good faith despite the technical error. The court expressed that whether a court must return a guilty verdict on predicate offences before sustaining a POCA racketeering charge need not be decided - it may suffice to hold the predicate offences proved without formal guilty verdicts. The court adopted the reasoning from United States RICO cases that Congress's intent to treat racketeering and predicate offences separately defeats double jeopardy challenges. The court emphasized that determining duplication of convictions has no infallible formula and must ultimately be left to 'common sense, wisdom, experience and sense of fairness of the court.' The court commended the investigators for seeking judicial authorization rather than acting unilaterally, stating they 'should be commended, not penalised.'

This case is significant for establishing important principles regarding: (1) the application of s 35(5) of the Constitution - evidence obtained through technical irregularities committed in good faith will not automatically be excluded if exclusion would not serve fairness or justice; (2) the proper approach to accomplice evidence - corroboration and other safeguards must be assessed but caution must not displace common sense; (3) the interpretation of POCA's 'pattern of racketeering activity' - prior convictions are not required and predicate offences can be proved in the same trial as the racketeering charge without constituting improper splitting; (4) the evaluation of circumstantial evidence must be cumulative, not piecemeal; (5) the probative value of an accused's failure to testify when faced with a strong prima facie case; and (6) sentencing principles requiring proportionality between co-accused involved in the same transaction.