THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 42/09

HERMAN ZüRICH

Appellant

and

THE STATE

Respondent

Neutral citation:
Zürich v The State (42/09) [2009] ZASCA 108 (22
September 2009)

Coram:
Streicher JA, Hurt et Bosielo AJJA

Heard:
31 August 2009

Delivered:
22 September 2009

Summary:
Criminal law – Appeal against conviction of unlawful trade
in ivory – Admissibility of evidence obtained as a result of
improper conduct not involving the accused.

_____________________________________________________

ORDER

On appeal from:
Northern Cape High Court (Williams J and Mokgohloa
AJ) on appeal from the Regional Court, Upington.

The appeal is dismissed.

JUDGMENT

BOSIELO AJA (Streicher JA et Hurt AJA concurring).

[1] The appellant, an attorney practising in Upington was charged,
together with a co-accused Jacques Andrew Esterhuizen (Esterhuizen) in the
Regional Court, Upington on various counts relating to the contravention of
the Northern Cape Nature and Environmental Conservation Ordinance 19 of
1974 (the Ordinance). On 22 November 2005 the appellant was convicted on
counts one and two on the basis that he had been an accomplice in the
unlawful importation and subsequent sale of elephant tusks by Esterhuizen to
one Jaco Oberholzer (Oberholzer) in contravention of ss 44(1)(b)(i)1 and 462
of the Ordinance.

' s 44(1)(b)(i) Subject to the provisions of this ordinance, no person shall without a permit
authorising him to do so-
(a)
. . . .
(b)(i)
import into the Province from any place outside the Republic the carcass of
any wild animal, or . . .'
2 's 46 No carcass of any wild animal shall be sold by any person other than-
(a)
the owner of any land on which the animal concerned was hunted in
accordance with the provisions of this ordinance;
(b)
a market master at a public or municipal market; or
(c)
a person authorised by a permit issued under this ordinance or a licence
issued under the Licences Ordinance, 1981(Ordinance 17 of 1981), to sell such
carcass.'

[2] On appeal to the Northern Cape High Court, the conviction and
sentence on count 1 were set aside. The conviction on count 2 was confirmed
but the sentence was set aside and replaced with a fine of R5 000,00 (five-
thousand rand) or imprisonment for nine months with a further imprisonment
for nine months suspended for 3 years on prescribed conditions. The
appellant is appealing against that judgment with the leave of the court below.

[3] The facts of this case are common cause. During or about December
1998, the South African Police Services (SAPS) launched a special covert
operation dubbed 'Operation Rhino' in Upington. This was in direct response
to reports of some widespread criminal activities in Upington involving
unlawful dealing in uncut diamonds and unlawful dealing in protected species.
In the course of their initial investigations, some twenty-six suspects, including
the appellant were identified.

[4] The required authority to undertake the covert operation in terms of s
252A of the Criminal Procedure Act 51 of 1977 (the CPA) was obtained from
the office of the Director of Public Prosecutions (DPP) in Kimberley. Jaco
Oberholzer (Oberholzer), a member of the Gold and Diamond Unit,
Bloemfontein was to be used as the undercover agent. In order to facilitate
this covert operation Oberholzer was employed by one Nickey Celliers, also
one of the police informers involved in 'Operation Rhino', at Celliers' business
called North Western Transport in Upington. The authority thus conferred
included the interception and recording of communications between the
police, the undercover agent and the suspects.

[5] It appears that, during the period between December 1998 and
January 1999, Oberholzer's credibility in the role he was playing began to be
questioned. This posed a serious threat to the entire covert operation. In order
to save the project the police decided to clothe Oberholzer with more
convincing credibility. They decided to stage a bogus arrest of Oberholzer for
unlawful dealing in uncut diamonds. The necessary authority for this bogus
arrest was granted by the office of the DPP in Kimberley.

[6] Pursuant to this ploy, Oberholzer was duly arrested on 25 February
1999 for unlawful dealing in uncut diamonds. It was part of the scheme that
Oberholzer would contact the appellant for legal representation. This
Oberholzer did but, as the appellant had a prior engagement on the date set
for Oberholzer's court appearance the appellant instructed one, Mr de Beer,
his professional assistant to attend to the bail application, which de Beer did
successfully. It was an essential part of the plot that Oberholzer should use
this arrest to establish and maintain a relationship with the appellant. It was in
the course of the relationship which ensued that the appellant told Oberholzer
that he knew of someone from Rietfontein who had elephant tusks to sell. He
offered to introduce Oberholzer to that person. In pursuance of this offer the
appellant called Oberholzer to his offices on 29 March 1999 to meet the man
from Rietfontein who turned out to be Esterhuizen (who later became accused
two). The appellant introduced Esterhuizen to Oberholzer at his offices. As a
direct consequence of this introduction, Esterhuizen sold and delivered two
elephant tusks to Oberholzer. In a recorded conversation on 1 April 1999, the

transcript whereof was handed in as 'Exh K,' Oberholzer reported to appellant
that a sale was successfully concluded for R20 500,00.

[7] In terms of s 252A of the Criminal Procedure Act 51 of 1977 any law
enforcement officer, official of the State or any other person authorised
thereto for such purpose may make use of a trap or engage in an undercover
operation in order to detect, investigate or uncover the commission of an
offence, or to prevent the commission of any offence, and the evidence so
obtained shall be admissible if that conduct does not go beyond providing an
opportunity to commit an offence. The appellant conceded that the conduct of
the police in this case did not go beyond providing an opportunity to commit
an offence. It follows that the evidence against the appellant was not rendered
inadmissible by virtue of the fact that it was obtained by way of a trap. Before
us the appellant accepted that to be the case.

[8] In the court below the appellant contended that the evidence against
him was rendered inadmissible by s 35(5) of the Constitution. The section
provides:
‘Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if
the admission of that evidence would render the trial unfair or would otherwise be detrimental
to the administration of justice.’
The court below held that the section did not render the evidence against the
appellant inadmissible as the admission of such evidence would not have
rendered the trial unfair. Before us the appellant conceded that the section did
not apply as no right in the Bill of Rights was violated. The appellant did
however submit that the evidence against him should not have been admitted

in that it was obtained in an improper manner in that the magistrates and the
prosecutor concerned were misled and the judicial process was abused by
police officers in cooperation with senior officials of the National Prosecuting
Authority in order to create an opportunity for Oberholzer to make contact with
the appellant so as to uncover the commission of an offence.

[9] The respondent conceded that the investigative methods employed by
the police were unacceptable and that a court had a discretion to disallow
evidence improperly obtained but submitted that the facts relied upon by the
appellant did not justify the exclusion of the evidence.

[10] In S v M 2002 (2) SACR 411 (SCA) at 431g-i Heher JA said that there
is no doubt that a court at common law has a discretion to exclude evidence
improperly obtained on the basis of ‘a proper balancing of the competing
interests so clearly identified’ in S v Hammer and Others 1994 (2) SACR 496
(C). In that case Farlam J said at 499a-e:
‘The following factors may be useful in deciding whether to exercise the discretion: (a)
society’s right to insist that those who enforce the law themselves respect it, so that a citizen’s
precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private
life may remain unimpaired; (b) whether the unlawful act was a mistaken act and whether in
the case of mistake, the cogency of evidence is affected; (c) the ease with which the law
might have been complied with in procuring the evidence in question (a deliberate “cutting of
corners” would tend towards the inadmissibility of the evidence illegally obtained); (d) the
nature of the offence charged and the policy decision behind the enactment of the offence are
also considerations; (e) unfairness to the accused should not be the only basis for the
exercise of the discretion; (f) whether the administration of justice would be brought into
disrepute if the evidence was admitted; (g) there should be no presumption in favour of or

against the reception of the evidence, the question of an onus should not be introduced; (h) it
should not be a direct intention to discipline the law enforcement officials; (i) an untrammelled
search for the truth should be balanced by discretionary measures, for in the words of Knight
Bruce VC, “Truth, like other good things, may be loved unwisely – it may be pursued too
keenly – may cost too much”.’

[11] In the present case the police or prosecuting authorities did not perform
an unlawful act as against the appellant. Insofar as their conduct was
improper it was improper as against the court, the magistrates and the
prosecutors involved. Counsel for the appellant correctly conceded that the
appellant’s rights had not been violated by such improper conduct. In so far as
the appellant was concerned, a misrepresentation was made to him that
Oberholzer had been dealing in uncut diamonds and that misrepresentation
eventually led to him introducing Oberholzer to Esterhuizen as a person who
had elephant tusks for sale. Traps, by their very nature always involve
misrepresentations specifically intended to deceive the suspect. In terms of
s 252A the uncovering of an offence by way of such a misrepresentation is
not improper and if it goes no further than to create an opportunity to commit
an offence does not affect the admissibility of the evidence obtained as a
result. Save for the limited purpose of persuading the appellant that
Oberholzer might be inclined to unlawful acts, the misleading of the court, the
magistrates and the prosecutors had no effect on the trial. The appellant can
therefore not complain that he did not have a fair trial. In these circumstances
the admission of the evidence could not have brought the administration of
justice into disrepute. To the contrary the exclusion of the evidence could
have done so. The appellant is an attorney who was suspected of criminal

activities which the police had great difficulty in exposing. In these
circumstances the evidence against the appellant obtained as aforesaid was
in my view correctly admitted against the appellant.

[12] The appellant did not advance any other basis for upholding the
appeal. The appeal is therefore dismissed.

______________________
L O BOSIELO
ACTING JUDGE OF APPEAL

APPEARANCES:

FOR APPELLANT:

F VAN ZYL SC

Instructed by
ENGELSMAN,
MAGABANE
INC
KIMBERLEY
LOVIUS
BLOCK
ATTORNEYS
BLOEMFONTEIN

FOR RESPONDENT:

J J CLOETE

Instructed by

NATIONAL PROSECUTION AUTHORITY
KIMBERLEY
DIRECTOR
PUBLIC
PROSECUTIONS
BLOEMFONTEIN
SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN SUPREME
COURT OF APPEAL

FROM:
The Registrar, Supreme Court of Appeal

DATE:
22 SEPTEMBER 2009

STATUS:
Immediate

Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal.

HERMAN ZüRICH v THE STATE

[1] In a judgment delivered on 22 September 2009, the Supreme Court
of Appeal dismissed an appeal against the conviction of Mr Zürich in the
Regional Court Upington on one count of being an accomplice to the
commission of the offence of unlawful dealing in two ivories. The
appellant's conviction was based on the evidence of one Jaco Oberholzer
who was an undercover police agent in a covert operation called
operation Rhino. The necessary authority for this covert operation in
terms of s 252(A) of the Criminal Procedure Act 51 of 1977 (CPA) had
been granted by the office of the Director of Public Prosecutions,
Kimberley (DPP).

[2] On appeal the admissibility of Oberholzer's evidence was
challenged, not in terms of s 252(A)(1) of CPA or 35(5) of the
Constitution of the Republic of South Africa (the Constitution) but on the
basis that the evidence was tainted by an abuse of the legal process when
the police, in order to clothe Oberholzer with a more convincing
credibility, staged a bogus arrest of Oberholzer, which resulted in
Oberholzer appearing in the Magistrate Court, Upington on false charges

of unlawful dealing in diamonds. This bogus arrest afforded Oberholzer
the opportunity of establishing a relationship with the appellant which
culminated in the appellant introducing Oberholzer to the seller of the
two ivories.

[3] On appeal the SCA held that, although the investigative methods
used by the police are unacceptable, such was not unlawful against the
appellant and further that it did not render the trial unfair. The conviction
on one count of being an accomplice to the unlawful dealing in two
ivories was upheld.