THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 432/09
AKASH LACHMAN
Appellant
and
THE STATE
Respondent
Neutral citation: Lachman v The State (432/09) [2010] ZASCA 14
(15 March 2010)
Coram:
MTHIYANE, VAN HEERDEN JJA and
GRIESEL AJA
Heard:
19 February 2010
Delivered:
15 March 2010
Summary:
Evidence – whether police conduct amounted to a
trap or an unlawful search – whether evidence
discovered as a result is admissible – whether
circumstantial
evidence
sufficient
to
prove
appellant’s guilt.

____________________________________________________________________
ORDER
____________________________________________________________________
On appeal from: The Eastern Cape High Court (Grahamstown)
(Kroon and Pickering JJ sitting as a court of appeal from a regional
court):
The appeal is dismissed.
__________________________________________________________
JUDGMENT
__________________________________________________________
GRIESEL AJA (MTHIYANE and VAN HEERDEN JJA concurring):
[1] The appellant was convicted in the regional court, sitting in East
London, on a charge of corruption in contravention of s 1(1)(b) of the
Corruption Act 94 of 1992.1 The essence of the charge was that, whilst
employed as an auditor in the East London office of the South African
Revenue Service (SARS), the appellant corruptly attempted to solicit a
bribe from a certain Mr Kwame Mokoena as a reward for assisting the
latter to make his tax problems ‘go away’, which actions constituted an
excess of his powers or a neglect of his duties as such auditor.
[2] After his conviction, the appellant was sentenced to five years’
imprisonment of which two years were conditionally suspended. His
appeal to the Eastern Cape High Court, Grahamstown against the

1 Since repealed and replaced by the Prevention and Combating of Corrupt Activities Act 12 of 2004,
which came into operation on 27 April 2004.

conviction and sentence was unsuccessful, hence this further appeal
against his conviction,2 which comes before us with leave granted by this
court.
Factual background
[3] The evidence of Mokoena was that he was at all material times
the owner of a business entity styled Investorex trading as Kwasaka
Agencies. He was registered with the East London branch of SARS as a
vendor liable to pay Value Added Tax (‘VAT’). His file at SARS was
attended to by the appellant in his capacity as auditor, together with
another auditor, a certain Ms Sabrina Taylor.
[4] On 23 September 2003 Mokoena received a telephone call from
the appellant who sought certain details relating to Mokoena’s tax
affairs. Mokoena made an appointment to see the appellant at the SARS
offices later that same day to discuss the matter. At the interview, the
appellant pointed out to Mokoena that he had not submitted his tax
returns and that SARS had decided to conduct an audit of his business
affairs. Mokoena was accordingly requested to submit certain further
information to SARS.
[5] Shortly after the interview, on his arrival at home, Mokoena
received an anonymous text message (commonly referred to as an

2 Although the question of sentence was also addressed in the heads of argument filed on behalf of
both parties, the appellant’s notice of application for leave to appeal to this court was expressly
confined to the conviction. Furthermore, the order of this court simply recorded that ‘special leave to
appeal is granted to the Supreme Court of Appeal’, without including sentence in the scope of the
appeal. In the circumstances, no proper appeal against sentence is before us, as counsel for the
appellant rightly conceded at the commencement of his address to this court.

‘SMS’, an abbreviation for ‘short message service’) on his cellphone,
emanating from a cellphone with the number 0726786492. The message
was to the following effect:
‘I can help you with your tax affairs, you have got problems and I can help you with
your tax affairs.’
Mokoena was instructed by the anonymous author not to call the number
from which the SMS was sent, but to reply only via SMS as it was
dangerous to talk over the telephone, with the sender working at SARS.
[6] Later that evening Mokoena received further SMSs from the
same cellphone number, one advising him that he would only have to
pay SARS the amount of R10 000 in order to get all his books with
SARS up to date and another one requesting him to pay R60 000 ‘in
order to make [his] problems with the Receiver disappear’. After
commenting to his wife that the person was playing a game with him,
and that he did not know what it was all about, he sent an SMS in reply
to the effect that he only had R30 000 available. The response thereto
was to the effect that, ‘I am doing you a favour, that’s only half the
amount and I am doing you a favour’.
[7] The following day Mokoena received a further SMS enquiring
when he would have the money available. He decided to ignore this
SMS, as also further SMSs he received that day. A few days later he
received a fax from the SARS offices, co-signed by Ms Taylor and the
appellant, requesting a list of his assets and his banking and other details.
Receipt of the fax was followed by another SMS to the following effect:

‘I work at SARS; nobody can help you but me. Not even your
accountant can help you.’ A further SMS followed shortly afterwards,
enquiring whether Mokoena had received the fax.
[8] Mokoena subsequently had another meeting with the appellant at
the SARS offices during which the appellant informed Mokoena that the
Special Investigating Unit of SARS intended to charge him and secure a
criminal conviction for tax evasion. The appellant highlighted the
seriousness of the matter. Within 20 or 30 minutes of his leaving the
SARS offices Mokoena received another SMS that canvassed the same
aspects that had been raised with him by the appellant during the earlier
meeting. Mokoena described his bemusement at these events as follows:
‘And by this time I was just very, very, very suspicious as to how things were
developing. Every time I received a fax, I’d get an SMS. Every time I received a call
or I spoke to somebody, I’d receive an SMS.’
[9] The SMSs continued thereafter, Mokoena stating that in total he
probably received more than 200 of them over a period of just over three
weeks. All the SMSs emanated from the same cellphone number.
[10] On Monday, 13 October 2003, Mokoena received a further SMS
instructing him to pay R20 000 or ‘the deal was off’, thus leaving him to
face the consequences of the investigation by the special investigating
unit. By this time, according to Mokoena, he realised that he could not
trust anybody at SARS ‘as I felt as though I was either being framed or
trapped or pressured into something’. He accordingly consulted his
attorney, who advised him to enlist the services of a private investigator.

He thereupon approached Mr Tyrone Power, a private investigator, who
advised him to ‘play along’ with the author of the SMSs while Power
undertook to contact SARS.
[11] Matters came to a head on the morning of Thursday, 16 October
2003, when Mokoena received a further SMS instructing him to deliver
the R20 000 to the author at the offices of SARS in East London.
Mokoena drew R20 000 in notes, whereafter he, together with his
attorney, Mr Malusi, met Power at the latter’s office. There Power
introduced him to Captain Buys and Inspector McIntyre of the Organised
Crime Unit of the South African Police Service, who had in the interim
been contacted by Power. Whilst he was with Buys at Power’s office,
Mokoena received a further series of SMSs asking whether he had the
money ready. Upon ultimate confirmation by Mokoena that the money
was available, he was instructed by the anonymous author via SMS to
place the money in an envelope addressed to ‘Mr Nkula c/o Riette
Fellows’, marked ‘Private and Confidential’, and to deliver the envelope
to the reception desk at the SARS offices, the receptionist to be informed
that the envelope had to be taken to Ms Fellows’ desk. Buys accordingly
marked an envelope as instructed and placed the money in the envelope.
At the suggestion of Buys, only R5 000 was placed in the envelope,
instead of the R20 000 demanded in order to reduce the risk of the
money being lost. Prior to placing the money into the envelope, the
relevant notes (or at least some of them) were photo-copied in Power’s
office so as to facilitate later identification.

[12] Buys then set about making arrangements for the operation to be
carried out. Thus he enlisted the services of Malusi’s driver to deliver the
envelope at the SARS reception desk; he arranged for a member of
Power’s staff to video the delivery of the envelope and the collection
thereof by whomever came to collect it; he secured permission from Ms
Perks, a member of the investigative personnel of SARS, for Buys and
McIntyre to station themselves inside the SARS building before the
delivery and collection of the envelope took place. He also applied
telephonically to the relevant police official for the necessary permission
to conduct a covert operation, which was duly authorised.
[13] On arrival at the SARS offices Buys and McIntyre took up
position in a storeroom, from which vantage point they had a view of the
passage between the appellant’s office and the stairway leading down to
the ground floor and the reception area. A further police officer,
Inspector Mbiko, was stationed in the reception area for the purpose of
witnessing the delivery and collection of the envelope. An employee of
Power with a concealed video camera was with him. Power and
Mokoena remained in Power’s car, which was parked in the street
outside the SARS building.
[14] In due course Malusi’s driver entered the SARS building with the
envelope, approached Ms Cousins, the SARS employee on duty at the
reception desk, and advised her that he had come to drop off an envelope
for Ms Fellows. Ms Cousins had earlier been alerted by the appellant that
an envelope would be dropped off later that morning for either him or
Ms Fellows. Upon arrival of the envelope, Ms Cousins accordingly

telephoned the appellant to advise him of this fact. The appellant came
down to the reception area and Ms Cousins pointed out the man who was
still holding the envelope. The appellant simply collected the envelope
and immediately returned to his office upstairs. On the way, Mbiko
followed him, calling out to him to stop, but he simply carried on
walking. He went into the office of Ms Fellows, who to his knowledge
was not at work that day, and left the envelope on her desk. On exiting
from that office he was confronted by Buys and McIntyre. They
retrieved the envelope from Ms Fellows’ office and informed the
appellant that he was suspected of corruption. The appellant was
searched and a silver-coloured cellphone was found on his person. At
Buys’s request the appellant accompanied the police to his desk. A
search there revealed another cellphone, blue-coloured, in a partly
opened desk drawer, which cellphone was being charged.
[15] The appellant was then requested to accompany the police to
their offices at the Cambridge police station. At those offices Buys
telephoned the cellphone number from which the SMSs had been sent,
but neither the silver cellphone nor the blue cellphone rang in answer to
the call. Buys thereupon commented to McIntyre that he wanted to return
to the appellant’s office to perform a further search for a cellphone or a
SIM card from which the incriminating SMSs originated. Upon hearing
this, the appellant immediately responded that he would not be
‘responsible’ for anything else that might be found on his desk. McIntyre
and Power then returned to the SARS premises, accompanied by the
appellant, while Buys followed a short while later.

[16] During the ensuing search by McIntyre and Power of the
appellant’s desk, a brown-coloured cellphone was found on top of the
desk, under some papers and/or files. Power noticed on the cellphone’s
call register a number of missed calls made from his (Power’s)
cellphone. He testified that he had earlier that morning dialled the
number from which the SMSs had emanated in order to see whether
anyone would answer.
[17] On Buys’s arrival at the SARS offices the brown cellphone was
handed to him. He again dialled the ‘guilty’ number and this time the
brown cellphone either rang or silently vibrated (Buys could not
remember which), thus confirming that it was the cellphone they had
been looking for. Buys accordingly arrested the appellant and returned to
the offices of the Organised Crime Unit.
[18] On going through the call registers on both the brown cellphone
and the silver cellphone, Buys observed that on both phones messages
containing the name ‘Hongfu’ were stored. (The message on the silver
phone was dated 15 October 2003). Asked for an explanation the
appellant declined to offer an answer.
[19] Ms Fellows, who was the team leader of the audit section of
SARS, East London, of which the appellant was also a member, testified
that she was not at work on the day in question but was on sick leave,
having been admitted to hospital. The members of her team, including
the appellant, knew that she would not be at work that day. She further

testified that she did not know a man named Nkula or of the fact that any
envelope was to be delivered to her office on the day in question.
The appellant’s evidence
[20] The appellant denied any knowledge of the SMSs about which
Mokoena testified. He claimed that on the morning in question he was in
his office when he received a telephone call from an unknown man, who
asked to speak to his manager, Ms Fellows. He advised the caller that
she was not at work and would only be returning to work the following
Monday. The caller stated that he had important business with Ms
Fellows and insisted on seeing her. On the appellant’s inquiry as to the
man’s details, including his name and VAT number, the caller merely
gave his name a few times, which he pronounced differently each time.
The appellant offered to assist the man with whatever his query was, but
he was told that the caller had information for Ms Fellows. The appellant
told him that he could bring the information (which the appellant
assumed was in documentary form) in to the SARS offices and he would
ensure that it reached Ms Fellows. The caller said that he would be there
within 45 to 60 minutes. The appellant accordingly advised Ms Cousins,
while leaving documentation with her for collection by an accountant,
that a man, whose name was either Ntula or Nkula, would be coming in.
When Ms Cousins telephoned him some time later, he went downstairs,
where Ms Cousins pointed out a man. The man handed the appellant an
envelope and, when asked if he was Mr Ntula or Mr Nkula, the man
‘basically just nodded and walked away’. The appellant saw Ms Fellows’

name on the envelope ‘and took for granted that that was the gentleman I
spoke to’. He accordingly put the envelope on Ms Fellows’ desk.
[21] On leaving her office, he was confronted by Buys and McIntyre.
The appellant confirmed, in broad outline, their evidence as to
subsequent events, including the discovery of the brown cellphone on his
desk. However, the appellant denied that the brown cellphone belonged
to him, claiming that he had never seen it prior to that day nor had he
ever owned a brown cellphone. He surmised that some unknown person
must have ‘planted’ it there between the first and second search by the
police. He also suggested, under cross-examination, that there might
have been a conspiracy against him and that his former colleagues who
testified on behalf of the state could have been ‘coaxed into saying it’.
Asked by whom, the appellant replied that he had ‘no idea’.
Findings of the trial court
[22] In a comprehensive judgment, the magistrate dealt fully with the
evidence presented on behalf of the state and the defence. In discussing
the credibility of the state witnesses, the magistrate found that, as a
witness, Mokoena was ‘sometimes evasive and did not always answer
simple questions’. He was nonetheless satisfied that Mokoena did indeed
receive the series of SMSs with the general tenor as explained by him.
There is ample support in the record for this finding, which was not
seriously challenged on appeal.

[23] The magistrate also made favourable credibility findings in
respect of the other state witnesses, including the two women who shared
an office with the appellant.
[24] The appellant’ version, on the other hand, was rejected by the
magistrate as ‘totally nonsensical’.
The admissibility of the ‘trap’
[25] At the trial, as also on appeal before the high court and this court,
the main argument advanced on behalf of the appellant was that the
police operation amounted to a trap. In fact, this defence was raised up
front by the appellant’s attorney in his plea explanation in terms of s 115
of the Criminal Procedure Act 51 of 1977 at the commencement of the
trial, when he informed the court that ‘the evidence relating to the trap is
inadmissible in that the state has not complied with the provisions of
s 252A of the Criminal Procedure Act, in particular that the trap itself
was unlawful. And secondly, that the evidence obtained from the trap is
inadmissible.’
[26] In the light of this clear indication from the defence as to where
the battle lines had been drawn, one would have expected this relatively
crisp issue to have been determined separately by way of a trial-within-a-
trial,3 after the defence had been required to furnish ‘the grounds on
which the admissibility is challenged’, as they were duty bound to do in

3 As to the desirability of holding of a trial-within-a-trial, see S v Matsabu 2009 (1) SACR 513 (SCA)
para 8. See also s 252A(7) of the Criminal Procedure Act, which provides that the question whether
evidence should be excluded in terms of subsec (3) may, on application by the accused or the
prosecution, or by order of the court of its own accord be adjudicated as a separate issue in dispute.

terms of the provisions of s 252A(6).4 It is unfortunate that this course
was not followed by the magistrate. Instead, all the evidence was
adduced in the ordinary course and the cross-examination ranged far and
wide across areas that turned out to be entirely irrelevant and un-
contentious.
[27] Be that as it may, both courts below rejected the appellant’s
contention that the police conduct in question fell within the ambit of a
trap. On appeal before us, the argument advanced on behalf of the
appellant, was based on a dictum by Holmes JA in S v Malinga &
others,5 where a trap was described as –
‘. . . a person who, with a view to securing the conviction of another, proposes
certain criminal conduct to him, and himself ostensibly takes part therein. In other
words he creates the occasion for someone else to commit the offence.’
[28] Building on this foundation, counsel argued that the operation
conducted by the police on the day in question fell within the ambit of a
trap because ‘a proposal was made by the police that an SMS be
forwarded indicating that the money was available to be paid over to the
recipient of the SMS and inviting the recipient to indicate how and
where the money was to be handed over’.
[29] There is no merit in this argument. Having regard to the
persistent series of SMSs addressed to Mokoena by the anonymous
author, it is far-fetched in the extreme now to cast Mokoena (or the

4 See S v Kotzè 2010 (1) SACR 100 (SCA); [2009] ZASCA 93 (15/9/09) para 19.
5 1963 (1) SA 692 (A) at 693F–G.

police, for that matter) in the role of offeror. Quite clearly the proposal
for criminal conduct all along emanated from the anonymous author of
the SMSs and from no-one else.
[30] In a careful analysis of the problem, the high court distinguished
three different scenarios: one is where the trap creates the opportunity to
commit a crime for someone who, but for the trap, would not have
committed the crime. A second scenario occurs where the ‘trap’ merely
creates such an opportunity for someone who wanted to commit the
particular offence – and would have done so in any event, even without
the trap’s influence.6 A third category is present, according to the high
court, ‘where the accused is himself or herself the initiator of the
incriminating transaction and instigates the “trap” to conclude the
transaction with him or her and the trap merely ostensibly participates
therein, and in that sense creates the opportunity for the commission of
the crime. A fortiori the accused in such a case commits the crime
without any influence from the trap’.7
[31] The high court rightly held that the conduct of the police, in
conjunction with Mokoena and the other persons who participated in the
operation, did not fall within either of the first two categories, but that it
rather fell within the third category. Counsel for the state aptly described
the operation in question as nothing more than a ‘controlled delivery’.8
In my view, this is exactly what happened here: an unknown suspect had

6 See eg S v Dube 2000 (1) SACR 53 (N).
7 Judgment para 77.
8 This expression is also used in the joint guidelines issued by all DPPs in 2004 in terms of s 252A(4).
See Hiemstra’s Criminal Procedure, at 24-119 (Issue 2).

made repeated overtures to the complainant, Mokoena, in an attempt
corruptly to solicit a bribe from him. Those overtures persisted over a
period of more than three weeks by means of a barrage of well over 200
SMSs. This behaviour on the part of the suspect made it clear that he was
prepared to indulge in corrupt activities. All that Mokoena did, with the
assistance of the police, was to create the opportunity for the suspect to
consummate the corrupt transaction; he did nothing to encourage or
solicit the commission of the crime. Apart from conveying to the suspect
that he (Mokoena) was prepared to participate in the corrupt scheme
proposed by the former, Mokoena simply alerted the police to what was
going on, thus enabling them not only to plan and witness the controlled
delivery, but also to apprehend the suspect in the act.
[32] This scenario is analogous to the situation where a kidnapper
demands a ransom from the kidnapped victim’s family. If the family
should inform the police of the pre-arranged time and venue for delivery
of the ransom, could it ever be suggested that the police used the victim’s
family as a trap if the police should turn up to witness the delivery of the
ransom and to arrest the culprit? The answer must surely be no.
[33] In the circumstances, I am satisfied that the police conduct in
question did not amount to a trap. But even if it were to be accepted for
purposes of argument, contrary to this finding, that the conduct did in
fact amount to a trap, then it is clear to me that the conduct of the police
did not go beyond providing an opportunity for the appellant to commit
an offence, in which event such evidence is ipso facto admissible in
terms of s 252A(1) of the Act. Counsel who appeared for the appellant at

the trial and on appeal to the high court conceded that the conduct in
question did not go beyond providing an opportunity to commit an
offence. On appeal before us, new counsel for the appellant sought to
retract that concession. However, in the light of all the evidence I am
satisfied that the concession by the appellant’s original counsel was
rightly made, with the result that the provisions of s 252A(3) did not
come into play and the evidence surrounding the police operation on the
day in question and what it produced was rightly admitted by the
magistrate.
Search and seizure
[34] A second string to the appellant’s bow was an argument that the
police discovered the brown cellphone in the course of an unlawful
search by the police. This is so, according to the argument, because the
search was conducted without a search warrant, but without satisfying
the requirements of s 22 of the Criminal Procedure Act. Paragraph (a) of
the section provides that a police official may without a search warrant
search any person or container or premises for the purpose of seizing any
article referred to in s 209 if the person consents to the search for and the
seizure of the article in question. Paragraph (b) of s 22 creates a second
ground of validation for a search without a warrant. This applies if a
police official on reasonable grounds believes (i) that a search warrant
will be issued to him under paragraph (a) of s 21(1) if he applies for such

9 Including an article which is concerned in or is on reasonable grounds believed to be concerned in
the commission or suspected commission of an offence, or which may afford evidence of the com-
mission or suspected commission of an offence, which description would clearly include the brown
cellphone.

warrant; and (ii) that the delay in obtaining such warrant would defeat
the object of the search.
[35] In the present case, the high court found that the appellant had in
fact consented to the search, both of his person and his desk. In this
regard, the appellant testified as follows:
They [ie Buys and McIntyre] confronted me and asked me if they can search me, I
said yes.
They did ask you? --- Yes, well they actually said that we are going to search you,
they didn’t say can we search you.

…
Court: Can you just repeat to that how did it happen that you consented to the
search? --- I think my exact words were sure, they said we are going to search you
now and I said sure search me.
[36] It was argued on behalf of the appellant that the state could not
rely on the consent ostensibly given by the appellant because he was not
advised, prior to the search, (a) that he could object to any search, or
(b) that any article seized during the search could be used in evidence
against him. The high court held that this circumstance was ‘neither here
nor there’ and dealt with the argument as follows:10
‘As regards the second aspect [(b) above] it need merely be commented that it was
obvious that if anything incriminating was found it would constitute evidence against
him and would be used as such. As regards the first aspect [(a) above], counsel did
not point to any provision requiring the police to advise a subject that it was open to
him to refuse to allow a search to be undertaken. (It may be recorded that even if the

10 Judgment paras 102–105.

appellant had refused consent for the desk to be searched, the ultimate result, the
retrieval of the cellphone, would, for the reasons stated below, still have followed).
The issue of legal representation is relevant here as well. Had an attorney been
engaged by the appellant he would have adopted one of two courses: after consult-
ation with the appellant he would have advised him to consent to the search or he
would have insisted on Buys obtaining a search warrant. In the latter event Buys
would have adopted one of two courses. He would either have invoked s 22(b) and
proceeded with the search and seizure on the basis that he had reasonable grounds to
believe that a search warrant would be issued to him under s 21(1)(a) should he
apply therefor and that the delay in obtaining the warrant would defeat the object of
the search. Alternatively, he would have taken steps to secure the appellant’s desk
pending his return with the search warrant. The retrieval of the cellphone would have
been the inevitable result.
I would record that in any event I would, in weighing up the competing consider-
ations (as to which see eg S v Hena & another 2006 (2) SACR 33 (SE)) have con-
cluded that the admission of the evidence of the finding of the brown cellphone did
not result in an unfair trial or bring the administration of justice into disrepute.’
[37] The high court accordingly concluded that the evidence in
question was correctly admitted. I agree with the above reasoning and
share the conclusion arrived at by the high court. I wish to add that no
challenge was directed at the police conduct in order to establish
whether, subjectively, they held the relevant belief, as contemplated by
s 22(b), when conducting the search. Looking at the matter objectively,
however, I am satisfied that, had such a challenge been advanced by the
defence, the police conduct could have been justified on those grounds
as well.

Rights of a suspect
[38] The high court in the course of its judgment11 also embarked on
an excursus in relation to the question whether someone who is neither
an arrested nor detained nor accused person, but merely a suspect, has
the rights conferred upon those categories of persons in terms of s 35 of
the Constitution12 and, if not, what pre-trial rights a suspect does have in
respect of the aspects which are the subject of those rights. The court
referred inter alia to the different approaches followed in some of the
divisions of the high court with regard to this question, leading to con-
flicting decisions on the subject.13
[39] In the view that I take of the matter, it is not necessary for
purposes of this judgment to reach any firm conclusion with regard to
the question raised and I expressly refrain from doing so. The fact is that
none of the evidence that has been admitted has been obtained in
violation of any of the rights contained in s 35, nor has the admission of
such evidence rendered the trial of the appellant unfair in any way.
Circumstantial evidence
[40] Having disposed of the ‘technical’ objections raised against the
evidence adduced by the state, it now remains to consider the evidence
on record in order to answer the question whether the state has succeeded
in proving the guilt of the appellant beyond reasonable doubt. I bear in

11 Paras 90–94.
12 Constitution of the Republic of South Africa, 1996.
13 See eg S v Sebejan & others 1997 (1) SACR 626 (W), 1997 (8) BCLR 1086 (W); S v Orrie &
another 2005 (1) SACR 63 (C); S v Mthethwa 2004 (1) SACR 449 (E).

mind in this regard that circumstantial evidence should never be
approached in a piecemeal fashion. The court should not subject each
individual piece of evidence to a consideration of whether it excludes the
reasonable possibility that the explanation given by an accused is true.
The evidence needs to be considered in its totality.14
[41] Based on the evidence, the following findings by the magistrate
are not open to doubt: that all the incriminating SMSs originated from
the same cellphone number referred to earlier; that they all referred to
Mokoena’s tax problems with SARS; and that the author of the SMSs
must have been someone inside SARS with knowledge of those tax
problems. Against the background of the circumstantial evidence as a
whole, the further inference seems irresistible that the number from
which the SMSs were sent belongs to the brown cellphone. It thus
appears that the case revolves largely around the question of ownership
of the brown cellphone.
[42] With regard to this question, there was direct as well as
circumstantial evidence linking the brown cellphone to the appellant.
First, the brown cellphone was found on his desk during the second
search. Second, the state presented the evidence of two colleagues who
had seen the appellant using a brown cellphone on different occasions. In
this regard, the witness Lusizi, who shared the same office with the
appellant, saw him using a brown cellphone ‘for a long time’ on the
morning of his arrest. Moreover, both the appellant’s two colleagues
who were in the office when the first and second search of the

14 S v Reddy & others 1996 (2) SACR 1 (A) at 8c–d.

appellant’s desk took place confirmed that no-one had entered the office
between the two searches. It was not suggested to either of them that
they had ‘planted’ the brown cellphone on the appellant’s desk or that
either of them was part of a conspiracy to falsely implicate the appellant.
None of them appeared to bear any malice towards the appellant.
[43] This evidence on behalf of the state becomes even more
compelling when weighed against the improbability of the appellant’s
total denial of all knowledge of the brown cellphone. As pointed out
above, his version, which is entirely speculative, was that the cellphone
must have been ‘planted’ on his desk by an unknown person in a delibe-
rate attempt to frame the appellant. No likely suspect was identified by
the appellant, nor does the evidence suggest any. The appellant even
sought to place in issue the colour of the cellphone by suggesting that it
was ‘reddish brownish’, but ‘more red’. This same theme was pursued
(albeit without much enthusiasm) by counsel in argument before us in an
attempt to cast doubt on the identification of the brown cellphone by the
state witnesses. However, this point is decisively dealt by the magistrate
in his judgment, where he recorded that the colour of the cellphone is
‘predominantly brown’.
[44] It follows, in my view, that the link between the appellant and the
brown cellphone has been established beyond reasonable doubt, with the
corrolary that he was the person who sent the series of incrimnating
SMSs to Mokoena.

[45] As rightly pointed out by the magistrate, even in the absence of
the brown cellphone, the remaining circumstantial evidence would have
been sufficient to convict the appellant. In this regard, reference may be
made to the following circumstances (to name but a few):
(a)
The appellant was one of two auditors in the SARS office to
whom Mokoena’s file had been assigned. He was accordingly
one of the SARS officials most likely to have had contact with
Mokoena in connection with his tax affairs.
(b)
The proximity in time between the contact between the appellant
and Mokoena – either in person or via fax – and the receipt by
the latter of various SMSs relating to such contact is highly
suspect and is consistent with an inference that the appellant was
the person responsible for sending the SMSs.15
(c)
The receipt by the appellant of the envelope containing the
‘bribe’, his prior knowledge of its expected delivery, as well as
the fact that it would emanate from a certain Mr ‘Nkula’ (or
‘Ntula’) – exactly in accordance with the instructions contained
in the earlier anonymous SMS to Mokoena – are highly incrimi-
nating features, consistent with his guilt.
(d)
The appellant’s demeanour when confronted by Buys and
McIntyre was noteworthy and indicative of guilty knowledge on

15 Compare para 8 above.

his part. Buys described his demeanour as ‘clearly nervous’ and
added:
‘He was so nervous as such that I could see his lips shaking. They were –
how can one describe it, it’s as if someone – or a child was caught out
smoking without his father knowing for instance. He had that completely
surprised look.’
(e)
The appellant falsely denied any involvement in the commission
of the offence and falsely denied any connection with the brown
cellphone. In the light of the incriminating nature of the evidence
relating to that cellphone, the court is justified, in my view, in
drawing an adverse inference from the appellant’s false denials.16
[46] The following well-known observations from Best on Evidence17
are particularly apposite in the present scenario:
‘A number of circumstances, each individually very slight, may so tally with and
confirm each other as to leave no room for doubt of the fact which they tend to
establish. . . . Not to speak of greater numbers, even two articles of circumstantial
evidence, though each taken by itself weigh but as a feather, join them together, you
will find them pressing on a delinquent with the weight of a mill-stone. . . ’.

16 S v Rama 1966 (2) SA 395 (A) at 400G–H; S v Steynberg 1983 (3) SA 140 (A) at 146A–148D; S v
Mtsweni 1985 (1) SA 590 (A) at 593I–594D.
17 10ed at p 261, quoted with approval in S v Reddy above at 8h–j and S v Mcasa & another 2005 (1)
SACR 388 (SCA) para 13.

[47] Based on the circumstantial evidence in this case, I am satisfied
that the state has proved the guilt of the appellant beyond all reasonable
doubt. In the result the appeal is dismissed.

B M GRIESEL
Acting Judge of Appeal

APPEARANCES:
FOR APPELLANT:    B P GEACH SC
Instructed by:     Neville Borman & Botha, Grahamstown
Hill, McHary & Herbst Inc, Bloemfontein
FOR RESPONDENT:   N HENNING
Instructed by:     The Director of Public Prosecutions, Grahamstown
The Director of Public Prosecutions, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
15 March 2010
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.
* * *
AKASH LACHMAN v THE STATE

The Supreme Court of Appeal today dismissed the appeal by Mr Akash Lachman, a
former auditor in the office of SARS in East London, against his conviction on a
charge of corruption. He was convicted in the regional court in East London and
sentenced to five years imprisonment, of which two years were conditionally
suspended. His appeal to the Eastern Cape High Court, Grahamstown, was un-
successful.

The trial court found that the appellant had sent a large number of SMSs from his
cellphone to the cellphone of the complainant, Mr Mokoena, offering to make Mr
Mokoena’s problems with SARS ‘go away’ in return for payment of R20 000. The
appellant was eventually arrested by the police when an envelope containing cash
was delivered to the offices of SARS and collected by the appellant. In a subsequent

search, the cellphone from which the incriminating SMSs had been sent was
discovered on the appellant’s desk. The appellant’s denial that he had sent any of the
SMSs or that the cellphone belonged to him was rejected by the trial court.

On appeal, the Supreme Court of Appeal confirmed the factual findings of the trial
court. The SCA also rejected arguments on behalf of the appellant that the police
conduct amounted to an impermissible trap and that the cellphone was discovered as
part of an unlawful search by the police.

--ends--