The appellant, employed as an auditor at the South African Revenue Service (SARS) in East London, was charged with corruption. The complainant, Mr Mokoena, received a series of over 200 anonymous SMSs from cellphone number 0726786492 over three weeks, demanding money (ultimately R20,000, later reduced to R60,000, then R20,000) to make his tax problems with SARS disappear. The SMSs followed immediately after meetings and faxes between Mokoena and the appellant at SARS. Mokoena consulted a private investigator, Mr Power, who contacted the police. A controlled delivery operation was organized: Mokoena was instructed by SMS to deliver R20,000 in an envelope marked for 'Mr Nkula c/o Riette Fellows' at SARS reception. Police placed R5,000 in the envelope, which was delivered and collected by the appellant at reception. The appellant took it to Ms Fellows' office (she was on sick leave). Police confronted him and found a silver cellphone on his person and a blue cellphone in his desk drawer. After a second search of his desk, police found a brown cellphone under papers on top of his desk, which when dialed responded to the number from which the SMSs originated. Two colleagues testified they had seen the appellant using a brown cellphone. The appellant was convicted in the regional court and his appeal to the Eastern Cape High Court dismissed.
The appeal against conviction was dismissed. (Note: The appeal against sentence was not properly before the court as the leave to appeal granted by the SCA was confined to conviction only.)
A police operation does not constitute an inadmissible 'trap' where the suspect himself initiates and persistently solicits the commission of the offence, and police merely create a controlled opportunity for the suspect to consummate a transaction he already intended to commit. Such conduct amounts to a 'controlled delivery' and does not go beyond providing an opportunity to commit an offence, making evidence admissible under s 252A(1) of the Criminal Procedure Act. Circumstantial evidence must be evaluated holistically, not in piecemeal fashion, and where multiple pieces of circumstantial evidence corroborate each other and are inconsistent with any reasonable hypothesis of innocence, guilt may be proved beyond reasonable doubt. A search conducted with the consent of the accused is lawful under s 22(a) of the Criminal Procedure Act, and there is no requirement that police advise a suspect of the right to refuse consent before a search. Alternatively, a warrantless search is justified under s 22(b) where police reasonably believe a warrant would be issued and delay would defeat the search's object.
The court noted conflicting high court decisions regarding what constitutional rights a 'suspect' (as distinct from an arrested, detained, or accused person) enjoys under s 35 of the Constitution, but expressly refrained from deciding this question as it was unnecessary for the disposition of the case. Griesel AJA observed that no violation of s 35 rights occurred and the trial was fair in any event. The court also commented obiter that it would have been preferable for the trial court to have conducted a trial-within-a-trial to determine the admissibility issues under s 252A separately, rather than hearing all evidence before ruling on admissibility. The judgment noted that even in the absence of the brown cellphone evidence, the remaining circumstantial evidence would have been sufficient for conviction. The court also observed that had the appellant refused consent to search, police could have secured the desk pending obtaining a warrant, with the same ultimate result.
This case provides important guidance on distinguishing lawful police operations from unlawful traps in South African criminal procedure. It clarifies that a 'controlled delivery' or 'sting operation' where the suspect initiates the criminal conduct does not constitute a trap. The judgment confirms the application of s 252A of the Criminal Procedure Act and reinforces that evidence obtained through police operations that merely provide an opportunity (rather than inducement) to commit a crime already contemplated by the accused is admissible. The case also illustrates proper application of principles for evaluating circumstantial evidence, requiring holistic assessment rather than piecemeal analysis. It touches on, but deliberately does not resolve, the contested issue of what constitutional rights suspects (as distinct from arrested or detained persons) enjoy under s 35 of the Constitution, noting conflicting high court decisions on this point. The judgment affirms that consent to search need not be preceded by advice that one may refuse, and validates searches under s 22(b) where reasonable grounds exist for belief a warrant would issue and delay would be prejudicial.