THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 862/2015

Reportable

In the matter between:

SHAMDUTT SINGH

FIRST APPELLANT
ABDUL WAHAB CARRIM

SECOND APPELANT
LALELANI MBANJWA

THIRD APPELLANT
MAZIBONGWE INNOCENT NGOBE

FOURTH APPELLANT

and

THE STATE

RESPONDENT

Neutral Citation: Shamduth Singh & others v The State 862/2015 [2016] ZASCA 37
(24 March 2016)

Coram: Tshiqi; Swain and Mbha JJA and Tsoka and Victor AJJA

Heard:
02 March 2016

Delivered:     24 March 2016

Summary:   Undercover operation conducted in terms of s 252A of the Criminal
Procedure Act 51 of 1977 – merits of convictions not challenged – challenge based
on s 35(5) of the Constitution – fairness of trial conceded – rights violations

challenged on the basis that the conduct of the undercover operation was
detrimental to the administration of justice – not alleged that the rights violation
affected the appellants themselves – alleged the rights violated were those of the
general public – enquiry – no onus of proof – entails a value judgment – entails a
balancing of rights in the Bill of Rights and respect for the judicial process – on the
facts the undercover operation was aimed at protecting the general public – no
flagrant disregard of rights of public.

___________________________________________________________________

ORDER

On appeal from: KwaZulu-Natal Local Division of the High Court, Durban (McLaren
J sitting as court of first instance):
1.
The appeal against the convictions is dismissed.
2.
The appeal against the sentences is upheld partially to the extent reflected
below:
2.1
First Appellant
(a) the sentence imposed in count 6 is ordered to run concurrently with the
sentences in counts 10, 12, 13 and 14;
(b) the sentence imposed in count 1 is ordered to run concurrently with the
sentences in counts 5, 16, 17, 18, 19 and 20;
(c)
the first appellant is therefore sentenced to an effective term of 20 years
imprisonment.
Third Appellant
a)
the sentences imposed in counts 6, 7, 8, 10, 11, 14 and 15 are ordered to
run concurrently;
b)
the sentences imposed in counts 1, 16 and 17 are ordered to run
concurrently;

c)
the third appellant is therefore sentenced to an effective term of 20 years
imprisonment.
Fourth Appellant
a)
the sentences imposed in counts 13 and 14 are ordered to run
concurrently;
b)
the fourth appellant is therefore sentenced to an effective term of 15 years
imprisonment.
__________________________________________________________________
JUDGMENT

Tshiqi JA (Swain and Mbha JJA and Tsoka and Victor AJJA concurring)

[1] The issues raised in this appeal concern an undercover operation termed
‘Operation Texas’ (the operation) conducted by the South African Police Service
(SAPS) in 2007 and 2008 in terms of s 252A of the Criminal Procedure Act 51 of
1977 (the Act). Its objective was to infiltrate and detect criminal activities of one of
the syndicates that were involved in several incidents of hijackings and armed
robberies of large 18 wheeler trucks along the N3 highway stretching between
Durban and Gauteng. Although there were other syndicates involved in similar
criminal activities in the area, the operation targeted the syndicate to which the
appellants were members.

[2] The modus operandi in all the incidents involving the appellants was almost
the same. Trucks parked along the highway and at truck stops in the evenings were
identified as possible targets by the members of the syndicate performing the role of
spotters. They were inspected and if their wheels were in good condition the truck
driver would be held up at gunpoint and tied up. A member of the syndicate playing
the role of a driver would then drive the truck with the assistance of a guard to a safe
place where the wheels were removed and loaded on to another truck which would
transport them to a specified place. The hijacked truck and its occupants were left at
the scene but were deprived of their cell phones so that they were not able to contact

the police and their employers. The wheels would be sold to the co-ordinator of the
group who would be contacted once the wheels had been removed to give further
instructions on where they would be taken. The members of the syndicate were paid
a specific amount for every wheel delivered on the instructions of the co-ordinator
and he in turn, sold them to his own unidentified contacts at a higher amount.

[3] In a quest to ensure the conviction of the members of appellants’ syndicate,
the SAPS, through the Commander: Provincial Crime Intelligence Projects,
KwaZulu–Natal, made an application to the office of the Provincial Director, Public
Prosecutions, in terms of the Act to conduct the undercover investigation for a period
of three months in accordance with the guidelines issued in terms of the Act in order
to infiltrate the syndicate. The first appellant was the primary target as the
information at the disposal of the SAPS had identified him as the co-ordinator of the
targeted syndicate. His only details available to the police at the time were:
Sunil Shamdutt Singh (aka: Shoshova)
ID number: 6605175101088
Employment: Self Employed (owner of a car wash in Ladysmith)
Residential Address: House number: 363, road 736, unit 9, Chatsworth, Durban
Additional Residential Address: in Ladysmith still to be confirmed.

[4] In motivation for the operation the application highlighted that the syndicates
operating in the area were already involved in incidents of serious violence, including
the murder of two truck drivers and the rape of a woman passenger. Conventional
investigation techniques had thus far failed in detecting the crimes and apprehending
the main role players. The syndicates were also suspected of being involved in
seven other incidents that were under investigation ranging from truck hijackings,
armed robbery and attempted murder. Only one armed robbery conviction had been
secured.

[5] The main challenge in apprehending the culprits was that the incidents
occurred randomly, usually in the evenings, anywhere in a long stretch on the N3
highway, thus making it difficult for the police to know in advance exactly where the

crime would be committed. Although the secondary targets like the spotters, guards
and robbers were apprehended on a regular basis, it was difficult to secure the
convictions of the main role players because they were not usually physically present
at the scene of the crimes, and it was difficult to prove their involvement in the
criminal activities. The failure to arrest the main role players meant that the market
was not eliminated because those secondary targets were easily replaced once
convicted and the syndicate would continue with its activities.

[6] In order to effectively penetrate the syndicate the SAPS wished to utilise an
‘in place informer’ and a trap agent. The terms of reference were: The agent’s
simulated role would be to transport the stolen goods. The agent and informer would
only be contacted after the incident had occurred and thus would not be aware
beforehand of the exact times and dates the incidents were to take place. The trap
agent and informer would also not create a new market within the syndicate but
would continue with already existing activities. As the syndicates worked mainly after
hours, a prior written authorization in terms of s 252A of the Act for each incident
would not be obtained, but feedback would be obtained the following day. Captain
Ungerer was identified to be the project manager of the operation.

[7] The Director of Public Prosecutions (DPP) approved the application for the
operation and issued the following guidelines:
‘a) The informer which is currently deployed will not testify and will at a later stage be
removed from the investigation.
b) Attempts will be made to secure the services of a second undercover agent.
c) The agent shall be provided with equipment to enable him to request that the members of
the team intervene should it appear that the safety of any person is threatened.
d) The agent and the informer shall become involved in pre-existing criminal schemes.
e) The statements and plea agreements of the convicted members of the syndicate will be
submitted to me.
f) If and when new information becomes available justifying the continued execution of the
undercover operation the same must be submitted to me.

g) The operation was verbally authorised on 16 August 2007 for the period 16 August to 24
August 2007. During this period the agent and informer may transport stolen goods for the
members of the syndicate.
h)…’
The initial period was extended on several occasions with certain minor amendments
and the operation eventually terminated in February 2008.

[8] Sergeant Smith was chosen to be the agent. A 4 ton truck was obtained and
its load area was covered with a canvas. It was fitted with three video recording
cameras, one in the cab, one in the loading area and one at the rear. It was also
fitted with a Tracker device which was linked to a police computer by means of which
the position of the truck could at all times be determined.

[9] Smith indeed infiltrated the syndicate. He was given a pseudonym called
Darryl. It was arranged that he would be introduced to one of the members of the
syndicate, named Oscar1 by one Lazarus (called Laz), who was apparently driving a
truck on behalf of the syndicate transporting the stolen wheels. It seems Laz had
turned against his partners in crime but his motive is immaterial for the purposes of
this judgement. Laz indeed introduced Smith to Oscar who was at the time detained
at the SAPS in Pinetown. Laz told Oscar that Smith would take over from him as a
driver because Laz’s wife was complaining about his working hours. Oscar had no
problem with the arrangement and in due course contacted Smith and further details
of his involvement were discussed at a later date at Oscar’s home. On a separate
occasion Smith was also introduced to the first appellant.

[10] Through Smith’s involvement in the six incidents the appellants were
ultimately arrested and indicted on 20 counts ranging from racketeering2, robbery
with aggravating circumstances3, corruption4, kidnapping, unlawful possession of a

1 Oscar and the second appellant are deceased.
2 Section 2(1)(e) read with ss 1,2(2) and 3 of Prevention of Organised Crime Act 121 of 1998.
3 Section 1 of the Criminal Procedure Act 51 of 1977 read with provision of s 51(2) of Criminal Law Amendment
Act 105 of 1997.
4 Section 4(1)(b)(iv) read with ss 1,2,4(2),24,25,26(1)(a) of Prevention and Combatting of Corrupt Activities Act
12 of 2004.

firearm, attempted murder and money laundering5. They were convicted and
sentenced as follows:
First appellant:
Count 1: Racketeering – sentenced to five (5) years imprisonment to run
concurrently with the sentences imposed on Counts 6, 10, 13 and 14;

Count 5: Corruption – sentenced to eighteen (18) months imprisonment to run
concurrently with the sentences imposed on Counts 6, 10, 13 and 14;

Count 6: Robbery – sentenced to fifteen (15) years imprisonment to run concurrently
with the sentence imposed on Count 10;

Count 10: Robbery – sentenced to fifteen (15) years imprisonment to run
concurrently with the sentence imposed on Count 6;

Counts 12-14: Robbery – sentenced to fifteen (15) years imprisonment in respect of
each count, with the sentences imposed on Counts 12 and 13 to run concurrently
and along with ten (10) years of the sentence imposed on Count 14;

Counts 16-20: Money laundering – sentenced to one (1) year imprisonment in
respect of each count.

Third Appellant:
Count 1: Racketeering – sentenced to five (5) years imprisonment to run
concurrently with the sentence in Count 6;

Count 6: Robbery – sentenced to fifteen (15) years imprisonment;

Counts 7-8: Kidnapping – sentenced to 3 years imprisonment in respect of each
count to run concurrently with the sentence in Count 6;

Count 10: Robbery – sentenced to fifteen (15) years imprisonment to run
concurrently with the sentence in Count 14;

5Section 4 of Act 121 of 1998.

Count 11: Kidnapping – sentenced to three (3) years imprisonment to run
concurrently with sentences in Counts 10 and 14;

Count 14: Robbery – sentenced to fifteen (15) years imprisonment to run
concurrently with sentence in Count 10;

Count 15: Unlawful possession of a firearm – sentenced to three (3) years
imprisonment to run concurrently with the sentences in Counts 10 and 14;

Counts 16-17: Money laundering – sentenced to one (1) year imprisonment on each
count to run concurrently with the sentences in Counts and 10 and 14.

Fourth Appellant:
Counts 13-14: Robbery – sentenced to fifteen (15) years imprisonment in respect of
each count.

The first appellant was sentenced to an effective term of 35 years imprisonment
whilst the third and fourth appellants were sentenced to effective terms of 30 years
imprisonment. They now appeal to this Court with leave of the trial court.

The Convictions

[11] All the evidence which led to the convictions of the appellants was gathered
during the operation. Smith’s main role was to convey the wheels that had been
removed from the trucks to a specified address and he would be paid for his effort.
He did not initiate any of the criminal activities. He disclosed his movements and
made several reports to the investigation team whenever he could after each
incident, including all the payments given to him for each transaction. At all times
during the six incidents the video cameras and the tracking device were activated.

[12] During the trial the admissibility of the evidence was challenged on grounds
that it did not satisfy the requirements of s 252A of the Act6 and thus fell to be
excluded. The challenge was based on the following grounds:

a) The conduct of the DPP in authorising the agent to involve himself in further
criminal conduct after the identity of the syndicate members had been established
endangered the safety of the public and the maintenance of public order.
b) The conduct of the agent went beyond providing an opportunity to commit an
offence.
c) The degree of deceit, trickery and misrepresentation used by the agent was aimed
at falsely implicating the accused.
d) The agent failed to adhere to the guidelines set down by the DPP.
e) The original information given to the DPP was misleading.

[13] The trial court found that the operation served the interests of the public at
large, which benefit by far outweighed risks to Smith and potential victims of the
offences which were committed. The trial court regarded as convincing the evidence
of Captain Ungerer that the ordinary methods of investigation and policing were
ineffective in dealing with the offences. It dismissed the grounds on which the
evidence was challenged, admitted the evidence and convicted the appellants on
most of the counts.

[14] In this appeal the appellants do not challenge the merits of the convictions
and have since disavowed any reliance on s 252A of the Act. They now concede that

6 Section 252A provides:
‘(1) Any law enforcement officer, official of the State or any other person authorised thereto for such
purpose (hereinafter referred to in this section as an official or his or her agent) 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:
Provided that where the conduct goes beyond providing an opportunity to commit an offence a court
may admit evidence so obtained subject to subsection (3).’

Smith was never seriously challenged on grounds that his conduct went beyond
providing the appellants with an opportunity to commit an offence. Consequently
they concede that the conduct of the agent did not go beyond providing an
opportunity to the appellants to commit the offences. The appeal is based solely on s
35(5) of the Constitution which 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 otherwise be detrimental to
the administration of justice.’

[15] The reliance on s 35 (5) of the Constitution is also limited in that it is not
submitted that the alleged rights violations rendered the trial unfair. The complaint is
restricted to a contention that the alleged violations were detrimental to the
administration of justice. Even on that ground, the appellants do not contend that the
rights violations affected the rights of the appellants in anyway. Instead the complaint
relates to the rights of the public at large. It is alleged that the conduct of the State
was detrimental to the administration of justice in that it undertook the operation
whilst aware that members of the public had already been exposed to serious
violence, and that it continued with the operation whilst aware of a real possibility of
further exposure to such violence. In support of that submission the appellants refer
to the incidents of violence that had already been perpetrated by the syndicates,
where the victims were hijacked and robbed, and where a female victim was raped.
The State on the other hand contends that the aim of the undercover operation was
to protect the very same public the appellants contend were exposed to danger, by
ensuring that all the members of the syndicate, including the main role players would
be arrested and convicted.

[16] The use of undercover agents by the police, both for the prevention and the
detection of crime, is long established, and is acceptable in our Constitutional
democracy.  Section 35(5) of the Constitution does not provide for automatic
exclusion of unconstitutionally obtained evidence. Evidence must be excluded only if
it (a) renders the trial unfair; or (b) is otherwise detrimental to the administration of
justice. The enquiry as to whether the admission of evidence would be detrimental to
the administration of justice centres around public interest. Since the enquiry is
purely a legal question, the question of the incidence and quantum of proof required

to discharge the onus of proof does not arise.7 It essentially involves a value
judgment.8  In Key v Attorney - General, Cape Provincial Division the Constitutional
Court stated:
‘In any democratic criminal justice system there is a tension between, on the one hand, the
public interest in bringing criminals to book and, on the other, the equally great public
interest in ensuring that justice is manifestly done to all, even those suspected of conduct
which would put them beyond the pale.’9  In Mthembu v The State10 this court stated:
‘. . . Public policy, in this context, is concerned not only to ensure that the guilty are held
accountable; it is also concerned with the propriety of the conduct of the investigating and
prosecutorial agencies in securing evidence against criminal suspects. It involves
considering the nature of the violation and the impact that evidence obtained as a result
thereof will have, not only on a particular case, but also on the integrity of the administration
of justice in the long term. Public policy therefore sets itself firmly against admitting evidence
obtained in deliberate or flagrant violation of the Constitution. If on the other hand the
conduct of the police is reasonable and justifiable, the evidence is less likely to be excluded -
even if obtained through an infringement of the Constitution.’

[17] What has to be balanced is on the one hand, respect for the Bill of Rights,
particularly by law enforcement agencies, and, on the other, respect for the judicial
process, particularly by the man in the street. This is a delicate process since over-
emphasis of the former would lead to acquittals on what the public would perceive as
technicalities whilst over-emphasis on the latter would lead at best to a dilution of the
Bill of Rights and at worst to its provisions being negated.11

[18] A conspectus of the various cases shows that the factors that may be taken
into account to determine whether the reception of evidence is detrimental to the
administration of justice are the bona fides of the investigation,12 the nature and
seriousness of the violation of the accused’s rights,13 considerations of urgency and
public safety,14 the availability of alternative, lawful means of obtaining the evidence

7 D T Zeffert and A P Paizes The South African Law of Evidence 2 ed (2009) at 757.
8 S v Pillay & others [2003] ZASCA 129; 2004 (2) SACR 419 at 447H.
9 Key v Attorney-General, Cape Provincial Division [1996] ZACC 25;  1996 (4) SA 187 (CC) para 13.
10 Mthembu v S [2008] ZASCA 51; 2008 (2) SACR 407 (SCA at para 26.
11 S v Mphala 1998 (1) SACR 654 (W) at 657 G-H; Zeffert and Paizes at 741; S v Tandwa [2007] ZASCA 34; 2008
(1) SACR 613 (SCA) at para 118.
12 Mthembu v S supra; S v Tandwa supra; Zeffert and Paizes at 747.
13 Mthembu and Tandwa supra; Zeffert and Paizes at 748.
14 Zeffert and Paizes at 749.

in question,15 the deterrent function of the courts in excluding improperly obtained
evidence,16 the nature of the evidence,17 and the fact that the evidence would
inevitably have been discovered even if improper means have not been employed.18
All those factors are merely guidelines and the list is not exhaustive. In the end every
case depends on its own facts.

[19] As the State has contended, the appellants’ attack on the operation can
simply be dismissed on the basis that it was meant to protect the very public alleged
to have been exposed to violence. The information at the disposal of the SAPS
showed that the crimes perpetrated by the group were becoming increasingly violent.
Highway patrols had proven to be ineffective because the crimes were committed at
random times and anywhere along the N3 highway, and it proved to be difficult to
detect where and when the next crime would be committed. The wheels were not
removed at the spot of the hijacking but at secluded places which were impossible to
detect beforehand. The crimes were committed at night and the victims would be
woken up at gunpoint and instructed not to look at the robbers, thus making it difficult
for the victims to identify the perpetrators of the crime. The actions of the syndicate
did not only expose the victims of the hijackings to serious criminal conduct, but also
had huge implications for the country’s economy in that the trucks travelling the
major highways of this country, including the N3 are used to convey goods between
the manufacturers or suppliers to the several retailers. The delays in the
transportation of those goods would in turn affect the consumers who are mostly
members of the general public.

[20] The contention that the SAPS should have ceased the operation after the first
incident, holds no water because had that occurred, the first appellant who was the
master mind of the syndicate would not have been convicted. The trial court
acquitted him on the first incident. At the time Smith was appointed, the syndicate
was already in operation and there is no evidence on the probabilities that the
criminal activities would cease after the first incident if the police had arrested the
identified culprits. Importantly, even though the operation continued, Smith did not

15 Ibid at 751.
16 Ibid at 752.
17 Ibid at 755.
18 Ibid at 755.

initiate any of the offences and did not play any role beyond what had already been
planned by the members of the syndicate. He merely followed orders. Someone else
had played the role before he infiltrated the syndicate and had he left, he would have
been substituted. There was thus no close casual connection between the rights
violation and the criminal acts of the syndicate that exposed the members of the
public to serious acts of violence. The sophisticated nature of the syndicate is
illustrated by the fact that in spite of the lengthy period within which Smith infiltrated
it, he was not able to uncover to whom the first appellant sold the wheels.

[21] It is not suggested that the nature of the operation was such that it was
conducted in a flagrant disregard of the Constitutional rights of possible victims or
other members of the public. On the contrary the evidence shows that the SAPS and
the DPP were very cautious. Smith performed his task in terms of guidelines
approved by the DPP and under their supervision and that of the investigation team.
He was obliged to report his activities to the investigation team and the team was
obliged to comply with the guidelines set by the office of the DPP. On the occasions
that Smith deviated from the letter of the guidelines, he did so in order to save the
integrity of the operation and the investigation team was kept informed of those
minor deviations.

[22] Public opinion is one of the relevant considerations on whether rights
violations are detrimental to the administration of justice19 – and it is unacceptable to
the public when courts exclude evidence indicating guilt particularly in the current
state of endemic violent crime in all parts of our country20. Had Smith not infiltrated
the syndicate, the probabilities are that the criminal activities would have continued. I
thus do not hesitate to find that the public would baulk at the idea that the law
enforcement agencies failed to take bona fide measures aimed at effective detection
of such an organised crime syndicate because of the fear that there may be danger
to the public, specifically in the present circumstances where the crimes would have
taken place irrespective of the operation. Indeed the reaction would be one of ‘shock,
fury and outrage’.21 The administration of justice thus outweighed the risk to potential

19 S v Tandwa 2008 (1) SACR 613 (SCA) at 649.
20 S v Ngcobo 1998 (10) BCLR 1248 (N) at 1254G.
21 S v Ngcobo supra.

victims and the public. The challenge on the rights violations must therefore fail and
the convictions stand.

Sentence

[23] The task of imposing an appropriate sentence is in the discretion of the trial
court. A court of appeal may only interfere if the sentence imposed is shockingly
inappropriate. The first appellant appeals against sentence on the basis that the
cumulative sentence of 86 and a half years and the effective term of 35 years are out
of proportion with the first appellant’s wrong doing, are shockingly inappropriate and
differ markedly from a sentence this Court would have imposed. It is also submitted
that the trial court should have taken into consideration as a mitigating factor the fact
that the first appellant was not physically involved in any of the robberies, but simply
served as an outlet for the wheels which were stolen from the hijacked trucks.

[24] The first appellant was convicted of 11 of the 20 counts he was facing. Most
of the incidents of robbery occurred on different dates. He was not an arm’s length
purchaser of the wheels as suggested by his counsel but was in contact with the
group during the various stages of the crimes and determined where the wheels
would be delivered and what amount should be paid to the members of the
syndicate. He was the mastermind of the syndicate.

[25] The third appellant was physically involved during the perpetration of most of
the offences. The role of the fourth appellant was somewhat limited in that he
became involved in the syndicate at a later stage and was consequently only
convicted on two counts.

[26] The trial judge was mindful of the cumulative effect of the sentences and the
potential severity thereof and he ordered that some of the sentences should run
concurrently. He was also mindful of the fact that the racketeering and money
laundering charges flow from the various predicate offences. However, the
cumulative effect of the respective sentences imposed are, as conceded by the
State, disproportionately harsh, such that this Court should interfere. The order to be

granted in this regard accordingly has as its sole objective an amelioration of the
cumulative effect of the individual sentences imposed.

[27] I therefore make the following order:
1.
The appeal against the convictions is dismissed
2.
The appeal against the sentences is upheld partially to the extent reflected
below:
2.1
First Appellant
a) the sentence imposed in count 6 is ordered to run concurrently with
sentences in counts 10, 12, 13 and 14;
b) the sentence imposed in count 1 is ordered to run concurrently with the
sentences in counts 5, 16, 17, 18, 19 and 20;
c) the first appellant is therefore sentenced to an effective term of 20 years
imprisonment.
Third Appellant
a) the sentences imposed in counts 6, 7, 8, 10, 11, 14 and 15 are ordered to
run concurrently;
b) the sentences imposed in counts 1, 16 and 17 are ordered to run
concurrently;
c) the third appellant is therefore sentenced to an effective term of 20 years
imprisonment.
Fourth Appellant
a) the sentences imposed in counts 13 and 14 are ordered to run
concurrently;
b) the fourth appellant is therefore sentenced to an effective term of 15 years
imprisonment.

___________________
ZLL Tshiqi
Judge of Appeal

APPEARANCES
For First Appellant:

J E Howse with S Marimuthu
Instructed by:

Leo Govender Attorneys, Durban

C/o Honey Attorneys, Bloemfontein

For Respondent:

N Moosa
Instructed by:

Director of Public Prosecutions, Pretoria

Director of Public Prosecutions,

Bloemfontein