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Reportable/Not Reportable

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION – PORT ELIZABETH

                                                                                                Case No:  CC 18/2017

                                                                                                Date Delivered:  05/02/2019

In the matter between:

THE STATE

And

JULIAN BROWN                                                                                         ACCUSED 1

EUGENE VICTOR                                                                                       ACCUSED 2

BRANDON CRAIG TURNER                                                                   ACCUSED 3

JUDGMENT

MAKAULA J:

A. Introduction:

[1]        The accused are charged with various contraventions namely: Regulation 36(1)(a) read with Regulation 96 of the Regulations Promulgated in the Government Notice R1111 published in Government Gazette 19205 of 2 September 1998 read with Regulation 1 and read with various provisions of the Marine Living Resources Act (MLRA) Act 18 of 1998;  contravention of the Provisions of the Prevention of Organised Crime Act 121 of 1998 (POCA); provisions of the Criminal Procedure Act 51 of 1977 (CPA); the National Road Traffic Act 93 of 1998 (NRTA).  The counts as appearing on the indictment is as follows:

Count 1:         The contravention of section 2(1)(f) read with section 1, 2(2), 2(3), 2(4) and 3 of Act 121 of 1998 (POCA) (manage the operation or activities of an enterprise and knew or ought reasonably to have known that any person whilst employed by or associated with that enterprise, conducts or participates in the conduct, directly or indirectly, of such enterprise’s affairs through a pattern of racketeering activity). (Accused 1and 2)

In that during the period January 2015 to April 2016 and at or near Port Elizabeth and in the Division of the Eastern Cape accused 1 and 2 managed the operation or activities of an enterprise as defined herein and knew or ought reasonably to have known that any person, whilst employed by or associated with the enterprise, conducted or participated in the conduct, directly or indirectly, of such enterprise’s affairs through a pattern of racketeering activities.

Count 2:         The contravention of section 2(1)(e) read with section 1, 2(2), 2(3), 2(4) and 3 of Act 121 of 1998 (POCA) (Managing or associated with an enterprise, conducting or participating in the conduct, directly or indirectly, of such enterprise’s affairs through a pattern of racketeering activity).  (Accused 2 and 3)

In that between the period January 2015 to April 2016 and at or near Port Elizabeth and in the Division of Eastern Cape the accused employed by or associated with an enterprise defined herein, conducted or participated in the conduct of these said enterprise, directly or indirectly, and of such enterprise’s affairs through a pattern of racketeering activities.

Count 3:         Attempt to Defeat or obstruct the course of Justice.  (Accused 1)

Whereas on the 22^nd of March 2015 accused 2 phoned Renier Ellerbeck and instructed him to go and collect abalone bags in the Noord Hoek area of Marine Drive.  Ellerbeck collected 7 bags of abalone and at his (Ellerbeck’s) house the abalone was processed with the assistance of Edgar Clulow and others.

And whereas later during the same day accused 1 phoned Ellerbeck and instructed him to go and collect the remaining bags of abalone.  Ellerbeck adhered to the instruction and was seen by the police collecting the said abalone bags.  The police gave chase.

And whereas accused 1 was on the scene and tried to prevent the police from arresting Ellerbeck by preventing the police to apprehend Ellerbeck by driving his vehicle between the police and the fleeing Ellerbeck.  Accused 1 knew that Ellerbeck contravened the law by collecting the abalone and acted wrongfully.

Now therefore accused 1 is guilty of the offence of attempting to defeat or of obstructing the ends of justice in that on or about 22^nd of March 2015 at or near Port Elizabeth in the district of Port Elizabeth the accused unlawfully and with intent to defeat or obstruct the course of justice, hindered and attempted to prevent Sergeant Trevor Shaw from arresting Renier Ellerbeck who was busy contravening Regulation 36(1)(a) read with Regulation 96 of the Regulations Promulgated in Government Notice R1111 and published in Government Gazette 19205 of 2 September 1998 read with Regulation 1 and section 58(4) of the Marine Living Resources Act, Act 18 of 1998, knowingly that his action will be compromising the said arrest and police investigation and thereby defeating or obstructing the course or administration of justice.

Count 4:         The contravention of Regulation 36(1)(a) read with Regulation 96 of the Regulations Promulgated in Government Notice R1111 and published in Government Gazette 19205 of 2 September 1998 read with Regulation 1 and section 58(4) of the Marine Living Resources Act, Act 18 of 1998 Act, and further read with section 250 of the Criminal Procedure Act, Act 51 of 1977.  (The unlawful engaging in fishing, collecting, disturbing, keeping, controlling, storing, transporting or be in possession of abalone without a permit).  (Accused 1)

In that on or about 22^nd of March 2015 and at or near Marine Drive in the district of Port Elizabeth, Accused 1 did unlawfully and intentionally engage in the fishing, collecting, disturbing, keeping, controlling, storing, transporting or possession of at least 218 units of abalone without a permit.

Count 5:         The contravention of section 58(1)(a)(i) read with sections 1, 13(1) and 18(1) of the Marine Living Resources Act, 18 of 1998, read with the provisions of section 250 of the Criminal Procedure Act, Act 51 of 1977.  (Conduct a fish processing establishment without having been granted the right to do so).  (Accused 3)  

In that on or about 11 May 2015 and at or near 6 Deborah Street, Westering in the district of Port Elizabeth, the accused unlawfully and intentionally conducted a fishing processing establishment without having been granted the right by means of a permit to do so in that he worked or involved himself in the cutting up, dismembering, separating parts of, cleaning, sorting, lining and preserving of abalone, or packed, dried, gutted, salted, iced, chilled, frozen or otherwise processed abalone for sale in or outside the territory of the Republic, to wit 7570 units of abalone with a weight of approximately 1.125 ton without a permit.

Count 6:       The contravention of regulation 36(1)(a) read with regulation 96 of the Regulations promulgated in Government Notice R1111 and published in Government Gazette 19205 of 2 September 1998 read with regulation 1 and section 58(4) of the Marine Living Resources Act, 18 of 1998, and further read with section 250 of the Criminal Procedure Act, 51 of 1977.  (Accused 3)

In that on or about 11 May 2015 and at or near 6 Deborah Street, Westering in the district of Port Elizabeth, the accused did unlawfully and intentionally engage in the fishing, collecting, disturbing, keeping, controlling, storing, transporting or possession of abalone, to wit 7570 units of abalone with a weight of approximately 1.125 ton without a permit.

Count 7:       The contravention of regulation 36(1)(a) read with regulation 96 of the Regulations promulgated in Government Notice R1111 and published in Government Gazette 19205 of 2 September 1998 read with regulation 1 and section 58(4) of the Marine Living Resources Act, 18 of 1998, and further read with section 250 of the Criminal Procedure Act, 51 of 1977.  (Accused 2)

In that on or about 16 August 2015 and in the district of Port Elizabeth and on the main road to Graaff-Reinet near Jansenville and in the district of Jansenville in the Eastern Cape Division the accused did unlawfully and wrongfully engage in the fishing, collecting, disturbing, keeping, controlling, storing, transporting or possession of 8401 units of abalone, without a permit. 

Count 8:       Fraud.  (Accused 2)

In that on or about 16 August 2015 and on the main road to Graaff-Reinet near Jansenville in the district of Jansenville and in the Eastern Cape Division the accused unlawfully, falsely and with the intent to defraud and prejudice Warrant Officer A Ferreira and or Warrant Officer B Smit or any other law enforcement officer gave out and pretended to Warrant Officer A Ferreira and or Warrant officer B Smit that the vehicle which he was driving legally and correctly displayed a registration plate to wit WNY 887 GP and as such was issued to the said vehicle.

Whereas in truth and in fact when he so gave out and pretended knew that the registration plate WNY 887 GP was false and was not issued to the vehicle he was driving.   

Count 9:         Forgery and Uttering.  (Accused 2)

Forgery 

In that on or about 16 August 2015 and on the main road to Graaff-Reinet near Jansenville in the district of Jansenville and in the Eastern Cape Division the accused unlawfully and with the intent to falsify altered a licence disc legally issued to a vehicle with registration number DDM 760 EC to read as if the said licence disc was issued to a vehicle with registration number WW 887 GP to the actual or potential prejudice of Warrant Officer A Ferreira and or Warrant Officer B Smit or any other law enforcement officer or to the State; and

Uttering

In that on or about 16 August 2015 and on the main road to Graaff-Reinet near Jansenville in the district of Jansenville and in the Eastern Cape Division the accused unlawfully and intentionally passed off the forged document to Warrant Officer A Ferreira and or Warrant Officer B Smit well knowing it is forged in order to act to the potential prejudice of the State.

Count 10:       The contravention of section 12(a) read with section 1, 34 and 89 of the National Road Traffic Act, 93 of 1996 (Diving without a licence).  (Accused 2) 

Alternatively:  The contravention of section 12(b) read with section 1, 34 and 89 of the National Road Traffic Act, 93 of 1996 (Failing to keep produce driver’s licence).    

In that on or about 16 August 2015 and on the main road to Graaff-Reinet, the R75 public road, near Jansenville in the district of Jansenville and in the Eastern Cape Division the accused unlawfully and intentionally drove a motor vehicle, to wit DMM 760 EC, without a driver’s licence issued to him in accordance with the law. 

Alternatively:  The contravention of section 12(b) read with section 1, 34 and 89 of the National Road Traffic Act, Act 93 of 1996 (Failing to keep produce driver’s licence).

In that on or about 16 August 2015 and at or near the main road to Graaff-Reinet, the R75 public road, near Jansenville in the district of Jansenville and in the Eastern Cape Division the accused unlawfully and intentionally drove a motor vehicle, to wit DMM 760 EC, without a driver’s licence in his possession which was issued to him in accordance with the law.

Count 11:       The contravention of regulation 36(1)(a) read with regulation 96 of the regulations promulgated in Government Notice R1111 and published in Government Gazette 19205 of 2 September 1998 read with regulation 1 and section 58(4) of the Marine Living Resources Act, Act 18 of 1998 Act, and further read with section 250 of the Criminal Procedure Act, Act of 1977.  (Accused 2)       

In that on or upon 30 September 2015 and at 2 Creswell Street, Sidwell in the district of Port Elizabeth in the Eastern Cape Division the accused unlawfully and wrongfully engaged in the fishing, collecting, disturbing, keeping controlling, storing, transporting or possession of 1107 units of abalone, without a permit.

Count 12:       The contravention of section 4(a) read with section 1, 7A and 8 of the Prevention or Organised Crime Act, Act 121 of 1998.  (Money Laundering)  (Accused 1)

Whereas in September 2015 the Accused visited Dada’s Motorland, a second-hand car dealer near Four Ways, Gauteng and displayed a white Ferrari California motor vehicle to the value of R1 879 980.00

And whereas on or about September 2015 and at or near Port Elizabeth the Accused approached Mr Martin Phillip Kriel (“Kriel”) with a request to buy and finance the said Ferrari California and register the Ferrari California in the name of Kriel in lieu of payment of R500 000.00 in cash.  The Accused agreed to pay the monthly instalments in cash to Kriel.

And whereas the Accused gave Kriel the amount of R502 000.00 in cash in return for the agreement and or arrangement and or transaction.

And whereas on or about the 16^th October 2015 Kriel bought and finance the said vehicle and caused the vehicle to be registered in his name on the 29^th of October 2015.

And whereas the said vehicle was delivered to the premises of Kriel in Port Elizabeth where the Accused took delivery thereof.

And whereas it is alleged that the R502 000.00 cash the Accused gave Kriel forms part of the proceeds of unlawful abalone related activities.

Now therefore in or about September/October 2015 and at Port Elizabeth the Accused, whilst he knew or ought to have reasonably known that the R502 000.00 cash is or forms part of the proceeds of unlawful abalone activities, unlawfully entered into an agreement or engaged in an arrangement or transaction with Kriel in connection with the cash in terms of which Kriel was to purchase, finance and register in the name of Kriel a Ferrari California motor vehicle and so gave out that Kriel is the owner of the Ferrari California whilst the Accused was the de facto owner of the said Ferrari, whether such agreement, arrangement or transaction is legally enforceable or not, but which had or is likely to have, the effect of concealing or disguising the nature, source, location, disposition or movement or the ownership thereof or any interest which the Accused may have in respect of the vehicle, the property.

[2]        The charges are predicated on various racketeering activities.  The State further alleges that Accused 1 and 2 were associated in fact and thus formed an enterprise in terms of section 1 of the POCA (which I shall deal with below).  The purpose of the enterprise was meant to contravene the provisions of the POCA and the MLRA.

[3]        The State alleges that the accused and other persons, known and unknown to the State directly or indirectly involved themselves in the conduct or participated and or managed the enterprise and or participated in conduct of the affairs of the enterprise by engaging in the illegal fishing, collecting, keeping, in contravention of section 58(1)(a)(i) of the MLRA and or the contravention of Regulation 36 of the regulations as promulgated under Government Notice R1111 and published in Government Gazette no 19205 of 2 September 1998, being Schedule 1 of the POCA offences as follows:

Racketeering Activity 1:

In that or about 22 March 2015 and at Marine Drive, Port Elizabeth in the district of Port Elizabeth the said enterprise, through their employees Renier Ellerbeck and Accused 1, unlawfully and wrongfully engaged in the fishing, collecting disturbing, keeping, controlling, storing, transporting or possession of 218 units of abalone, without a permit.

Racketeering Activity 2:

In that on or about 6, 26 and 29 of April 2015 and at the residence of Renier Ellerbeck in Cradock Place, Algoa Park in the district of Port Elizabeth the said enterprise, through their employees, Eugene Victor, (Accused 2), Brandon Craig Turner, (Accused 3), Andre van Rensburg, Edgar Clulow, Johantjie, Sheron Smith, Christiaan John Koen and Renier Erasmus and others unlawfully and wrongfully engaged in the fishing, collecting, disturbing, keeping, controlling, storing, transporting or possession of an unknown amount of abalone without a permit.

Racketeering Activity 3:

In that on or about 17 April 2015 and at 56 Heather Garden Square, Forest Hill in the district of Port Elizabeth the said enterprise, through their employee, JP van Zyl, unlawfully and wrongfully engaged in the fishing, collecting, disturbing, keeping, controlling, storing, transporting or possession of 691 units of abalone, without a permit.

Racketeering Activity 4:

In that on or about 11 May 2015 and at or near 6 Deborah Street, Westering in the district of Port Elizabeth, the said enterprise through their employee, Accused 3, did unlawfully and intentionally conduct a fishing processing establishment without having been granted the right by means of a permit to do so in that they worked or involved themselves in the cutting up, dismembering, separating parts of, cleaning, sorting, lining and preserving of abalone, or where abalone were packed, dried, gutted, salted, iced, chilled, frozen or otherwise processed for sale in or outside the territory of the Republic, to wit 7570 units of abalone with a weight of approximately 1.125 ton.

Racketeering Activity 5:

In that or about 28 May 2015 and at 8 Corbin Street, Sherwood in the district of Port Elizabeth the said enterprise, through their employee, Edgar Clulow unlawfully and wrongfully engaged in the fishing, collecting, disturbing, keeping, controlling, storing, transporting or possession of 1011 units of abalone without a permit.

Racketeering Activity 6:

In that on or about 12 July 2015 and at or near 15 Nassau Street, Kamma Ridge in the district of Port Elizabeth the said enterprise through their employee, Pierre Scholtz, did unlawfully and intentionally conduct a fish processing establishment without having been granted the right by means of a permit to do so in that they worked or involved themselves in the cutting up, dismembering, separating parts of, cleaning, sorting, lining and preserving of abalone, or where abalone are packed, dried, gutted, iced, chilled, frozen or otherwise processed for sale in or outside the territory of the Republic of South Africa, to wit 1618 units of abalone without a permit.

Racketeering Activity 7: 

In that on or about 4 August 2015 and at or near the Department of Correctional Services, North End, in the district of Port Elizabeth the said enterprise, through their employee, the said Jan Smuts, did unlawfully and intentionally engage in collecting, disturbing, keeping, controlling, storing, transporting or be in possession of abalone to wit at least 3152 units of abalone without a permit.

Racketeering Activity 8:

In that on or about 16 August 2015 and on the main to Graaff-Reinet near Jansenville in the district of Jansenville the said enterprise, through their employee, Accused 2 unlawfully and wrongfully engaged in the fishing, collecting, disturbing, keeping, controlling, storing, transporting or possession of 8401 units of abalone, without a permit.

Racketeering Activity 9:

In that on or about 26 August 2015 and at 8 Corbin Street, Sherwood in the district of Port Elizabeth the said enterprise, through their employee, Edgar Clulow, unlawfully and wrongfully engaged in the fishing, collecting, disturbing, keeping, controlling, storing, transporting or possession of 291 units of abalone, without a permit.

Racketeering Activity 10:

In that on or about 30 September 2015 and at 2 Creswell Street, Sidwell in the district of Port Elizabeth the said enterprise, through their employee, Accused 2 unlawfully and wrongfully engaged in the fishing, collecting, disturbing, keeping, controlling, storing, transporting or possession of 1107 units of abalone, without a permit.

Racketeering Activity 11:

In that abalone was unlawfully dealt with by the said enterprise in contravention of section 58(1)(a)(i) read with sections 1, 13(1) and 18(1) of the Marine Living Resources Act, Act 18 of 1998 and in contravention of regulation 36(1)(a) of the Regulations promulgated under Government Gazette Notice R1111 and published in Government Gazette 19205 of 2 September 1998, as amended, with regulation 1 and 96 of the said Regulation as issued in terms of section 77 of Act of 1998, the Marine Living Resources Act by conducting a fishing processing establishment without having been granted the right by means of a permit to do so on or about 11 April 2016 at the premises situated on the corner of Lindsay Road and Buitekant Street in Neave Township in the district of Port Elizabeth.

[4]        This pattern of racketeering activity is vested in the planned, ongoing, continuous and repeated direct or indirect involvement in the illegal collecting, possession, transportation and processing of abalone.

B.  Pleas and Plea Explanations:

[5]        Accused 1 is charged with counts’ 1; 3; 4 and 12.  Accused 2 is charged with counts’ 1; 2; 7; 8; 9; 10 and 11, whereas Accused 3 is charged with counts’ 2 and 6. 

[6]        Accused 1 pleaded not guilty to all the counts and made a statement explaining his plea in terms of section 115 of the Criminal Procedure Act[1] (the CPA).  The plea explanation is contained in Exhibit “A” and reads:

            “A. BACKGROUND

            1.         I am Accused 1 in this matter.

            2.         I know and understand the contents of this indictment.  The contents of the police docket     and the nature of the charges have been explained to me in detail by my legal     representatives.

            3.         My constitutional rights in terms of section 35(3) of the Constitution of the Republic of  South Africa Act 108 of 1996 have been explained to me.

4.         The evidential value of this Plea Explanation at the closure of the State’s case (the section 174 stage) and at the end of the trial have been explained to me.  It has been explained to me that although this Plea Explanation is not evidence, the State must nonetheless gainsay the relevant aspects of my version in this plea explanation.

            5.         I plead not guilty to all the charges that I am facing.

6.         I make this Plea and the Plea explanation that follows hereunder freely and voluntarily without undue influence and whilst in my sound and sober senses.”

THE PLEA (CONTENT)

B          ADD COUNT 1

7.         I deny that I was ever part of any enterprise. I have never conducted or participated in any enterprises, in particular, the enterprises the State alleges I was involved in in this case.

8.         I am not accused of contravening count 2.

ADD COUNT 3

9.         I deny that I ever attempted to defeat or obstruct the course of justice as alleged by the State and put the State to the proof thereof.

10.        In particular, I deny the allegation that I was in any way connected with Renier Ellerbeck’s decision (“Ellerbeck”) to allegedly collect 7 bags of abalone at his house.  I furthermore deny any knowledge of the allegations in count 3 relating to the 22^nd March 2015.  I put the State to the proof of all of these allegations.

ADD COUNT 4

11.        It appears as if count 4 is related to count 3 and I once again deny that I was ever engaged in fishing, collecting, disturbing, keeping, controlling, storing, transporting or possessing any abalone, let alone the 218 units alleged in this charge.

ADD COUNTS 5 – 11

12.        These are not charges that I am facing and therefore I can make no comment thereon.

ADD COUNT 12

13.        I deny that I, at any point in time, committed the offence of “money laundering” in contravention of section 4(a) of the Prevention of Organised Crime Act (POCA) 121 of 1998.

14.        In particular, I deny that I was involved in any business transaction with Martin Phillip Kriel to finance a Ferrari California as alleged by the State in the preamble to the allegations set out in count 12.

15.        This transaction is one conducted by Kriel himself and where Kriel, in order to avoid being similarly charged has simply placed all the blame on me.

ADD EVIDENCE IN GENERAL

16.        I have been informed that the State will call as their first witness, the investigating officer, Captain Rynaardt Swanepoel, and that he will, in his evidence repeatedly refer to hearsay evidence.  On the advices of my legal representatives, I want to state immediately that I will object to each and every piece of hearsay evidence that Captain Swanepoel testifies about on the basis of the decision in S v Ndlovu 2002 (2) SACR 325 (SCA).

17.        Furthermore, the State intends to call, as I am led to believe, at least 5 section 204 witnesses.  These are witnesses that were once upon a time accused persons and have now turned State Witness. (Sic)

18.        The circumstances leading to each and every one of these section 204 witnesses being arrested and later turning requires that I point out the following:

            18.1      Each and every one of these section 204 witnesses was arrested after a search   had been conducted of their property in terms of a search warrant issued by           either a senior member of the South African Police or by a local magistrate;

            18.2      Not one of these search warrants remotely complied with the peremptory             requirements as set out by the Constitutional Court in the matter of NDPP v Van          Der Merwe, 2011 (2) SACR 301 CC at 316 – 7.

            18.3      I have been informed by my legal representatives that the apex Court in this   Country to wit the Constitutional Court has made it very clear that since we live in a constitutional democracy and since the invasion of people’s privacy is frowned      upon by the Constitution of the Republic of South Africa Act 108 of 1996 our Courts must stringently apply South African Law and in particular, the South   African Constitution to research warrants.

19.        Furthermore, the Constitutional Court has made it very clear in the abovementioned case that since the searching of a person living in South Africa’s private premises is prima facie a contravention of sections 12 and 14 of the Constitution (to the right to dignity and the right to privacy) therefore:

            19.1      Search warrants must always be obtained prior to searching where such is          possible;

            19.2      Search warrants contain a number of peremptory requirements and should these    peremptory requirements and details not be included in the search warrants, the search would be unlawful.  The evidence therein cannot with respect, be saved  by section 35(5) of the Constitution of the Republic of South Africa;

            19.3      At the time each and every one of these section 204 accused houses / vehicles / premises were being searched, they were searched illegally since the search         warrants used herein were illegal and did not consist of the peremptory details         requirements as set out above; (sic)

            19.4      What automatically then follows is that these persons, arrested as a result of an   illegal search warrants, were illegally arrested;

            19.5      As a result of these illegal searches and with the ultimate result being illegal         arrests, all of these section 204 witnesses were detained and brought before   Court unlawfully;

            19.6      The unlawful acts referred to above allowed the police to apply illegal pressure     on each and every one of these accused persons to turn State witness.  This included a promise should they implicate me, the charges against them will be    withdrawn and they will not be prosecuted.

20.        I intend to place evidence before this Honourable Court of a number of other witnesses who were pressurised by the police and the prosecution and in particular, Captain Swanepoel and other members of his Organised Crime Team as well as the Prosecutor that all they must do was to implicate me and by doing so, they would be safe from further prosecution and in some instances, definite jail time.  (Quite clearly, they had very little choice.  It was either jail for them or they must implicate me)

21.        In these circumstances, not one of these section 204 witnesses from the time that their houses / premises / persons / vehicles were searched illegally, was ever given a choice to objectively, fairly and of their own accord, decide to testify against me.  It is quite obvious that when people are told that if they do not agree to testify against me and to implicate me they would be kept in custody and / or convicted and sent to jail, it amounts to undue influence on the part of the police and it gives the erstwhile accused, now section 204 witnesses very little, if any choice to make decisions freely and fairly.

22.        I also note that although these erstwhile accused, now section 204’s, were brought before Court and although many of them had their own attorneys after the charges were withdrawn against them, Advocate van der Spuy of the Legal Aid Board (who works very closely with Captain Swanepoel as can be seen in the matter of State v Panayiotou) was brought on board and, as in the Panayiotou case, did not hesitate to advise his client to turn State witness against me.

23.        As a result of all of the above, my right to a fair trial has been severely transgressed by the police through their deliberately unlawful activities, threats and promises to person in dire straits facing lengthy jail terms where they not to turn section 204.  A number of these section 204 witnesses have substantial criminal records and were therefore forced to implicate me and testify against me, failing which they would end up spending time in jail.

24.        I have been advised by my legal representatives that they will call for a trial-within-a-trial on each and every one of the section 204 witnesses, searches of their houses, their arrests and the manner in which they morphed from accused persons to section 204 witnesses, so that this Honourable Court may determine whether or not that desperate modus operandi on the part of the police did not interfere with my Constitutional right to a fair trial”.

[7]        Accused 2 and 3 did not make a plea explanation.  They put the State to the proof of its allegations against them.

[8]        Mr Le Roux made a statement in terms of section 150 of the CPA.  He stated that the enterprise, which Accused 1 and 2 formed, conducted its affairs through a pattern of racketeering activities set out in the indictment and all the racketeering activities are individually Schedule 1 offences in terms of the Prevention of Organised Crime Act (Act 121 of 1998) POCA.  Cumulatively, so the submission went, the offences constitute a pattern.     

[9]        In the process of trying to establish the guilty of the Accused, Mr Le Roux sought to lead the evidence of Captain Swanepoel which at the time was hearsay.  I allowed him to do so in terms of section 2 of the POCA the provisions of which allow the court to admit hearsay evidence relating to the offences contemplated in subsection (1) provided that such evidence would not render the trial unfair.

[10]      The genesis of the investigations which culminated in the arrest of the Accused is common cause.  It has been set out by Mr Mostert of the Department of Agriculture Forestry and Fisheries (DAFF).  The uncontested evidence is that illegal abalone trading or harvesting in the Eastern Cape has been a problem since 1993.  The main hub of such illegal activity has been Port Elizabeth where illegal enterprises and a number of Kingpins are operating.  The illegal activities led to the depletion, bordering on being extinct of abalone in the area.  That led the DAFF to appoint a company named Wild Coast Abalone to seed abalone in the ranching area from Schoenmakerskop to Cape Recife.  Wild Coast Abalone in turn employed TTF to patrol and protect the abalone in their ranching area.  Members of the TTF worked hand in- glove with SAPS and Marine Sources Officers in arresting abalone poachers.  That culminated in the formation of the task team testified to by Captain Swanepoel as dealt with in his evidence.

[11]      Captain Swanepoel therefore testified broadly about how the investigations of abalone poachers began in Port Elizabeth.  He was appointed as a head investigator.  He formed a task team of investigators, involving other SAPS units.  They were assisted by officials from the Department of Agriculture, Forestry and Fisheries (DAFF) and Technical Task Force (TTF).  I shall deal extensively below with the role played by these officials.

[12]      Captain Swanepoel as an investigator gave a detailed background of the investigation starting with the searches conducted in each of the section 204 witnesses, the Accused persons and their arrest.  The searches that were conducted by Captain Swanepoel and or the members of the task team, either with search warrants or not, were vigorously objected to by the Accused.  Consequent thereto a trial within a trial was held.  I made an order declaring some of the searches and search warrants to be unlawful.

[13]      I deal with the evidence of Captain Swanepoel in detail only in those instances where he was personally involved in the investigation.  I do not deal with his evidence in detail where the search was conducted by other members called in the trial within a trial in an effort to avoid to be too prolix and discursive. 

C. Trial-within-a-Trial:

[14]      The State called the evidence of Captain Swanepoel, Sergeant Trevor Thomas Shaw, Warrant Officer Denzil Henry Dirk and Captain Hendrik Stephanus Erasmus.  The defence did not call evidence.

[15]      Capt. Swanepoel as alluded to, testified globally about the search warrants which were obtained in respect of the various racketeering activities.  He testified that the searches in respect of racketeering activities two, three, five, eight and nine had no search warrants.  He stated that there was a burglary at his office which resulted in search warrants and accompanying affidavits in respect of the third and fourth activities being lost.

[15]      Captain Swanepoel gave a background as to how the investigation in respect of pouching of abalone was commenced which culminated in the arrest of the accused.  DAFF embarked on measures to preserve abalone because abalone poaching reached alarming proportions.  The investigations against the abalone poachers took a long time to complete because of the manner in which they operated.  The abalone poachers operated as syndicates, so he testified.  He sketched how the syndicate was constituted and operated.  Diving equipment had to be organised.  There were divers who would dive and harvest the abalone from the sea.  The abalone would be placed in marked bags, bearing the identification marks of each diver.  The abalone would be given over to a gardjie, who would take it to a designated motor vehicle.  The driver would drive to the house (weigh house) where it would be sorted in terms of sizes, deshelled and weighed per bag.  Each diver would be paid per the weight and size of the abalone.  The abalone would be taken from the weigh house by another driver to a store house, where it would be kept in deep-freezers.  It would be transported by another person to a processing plant where it would be cleaned and cooked.  After that process it would be transported to either Gauteng or Cape Town and ultimately to China where it is sold as a delicacy. The syndicates operated on a “need to know basis”.  The diver does not know the driver.  The latter does not know the weighers who in turn do not know the store person.  The store person does not know where the processing plant is.  Even payments are not made by the kingpin, i.e. the person who ultimately sells it to the market directly.  Payments are filtered down through different people.

[17]      In respect of the first activity that occurred on 22 March 2015 at Marine Drive, Captain Swanepoel testified that there was no search warrant sought because Renier Ellerbeck was apprehended by Sergeant Shaw transporting abalone.  Captain Swanepoel questioned Renier Ellerbeck.  He gave information which led him to the discovery of the other activities.  Renier Ellerbeck was not influenced nor coerced to give out the information.

[18]      Trevor Thomas Shaw (Sergeant Shaw) is a sergeant in the South African Police Services and a member of the Organised Crime Unit (OCU) under the command of Captain Swanepoel.  He arrested Renier Ellerbeck on 22 March 2015 along the Marine Drive transporting abalone.

[19]      On 22 March 2015, Sergeant Shaw was patrolling the coast in Schoenmakerskop towards Noordhoek.  He noticed two people standing on the shore in the rocks.  A third person was in the water.  The two assisted him out of the water.  He noticed along the road a white Corsa bakkie.  He took its number plate and drove past it.  Suddenly a white Kadett and Ford Ranger Double Cab appeared.  They parked next to each other.  The three men approached the tarred road and came closer to the Corsa.  A person alighted from the Corsa.  He took the green bags from the three men and went back to the Kadett and placed the bags in the boot.  He was watching all that through his rear-view mirror.  He started the motor vehicle and made a u turn towards the three motor vehicles with his blue light on and chased after the Kadett towards Schoenmakerskop.  The white Ford Ranger “cut” in front of him by joining the road.   He could not overtake it because of oncoming traffic.  The Ranger deliberately blocked his road as it would go fast and suddenly apply its brakes to an extent that he nearly caused an accident.  He eventually managed to overtake it.  He asked Constable Burton, who was his passenger, to take the registration letters and numbers.  He gave them out as FYF 604 EC.  He could not identify the driver but noticed that it was a white male.

[20]      Sergeant Shaw did not lose sight of the Kadett and drove closer to it.  Its driver suddenly turned into a gravel road heading towards the Red-Cross.  He could not follow it as he was traveling fast.  He made a u turn and followed its direction.  He asked from people who were in the vicinity about it.  They showed him by pointing at its direction.  He spotted it and noticed a white male running into the bush.  He shouted at him.  That person was on the phone.  He pointed him with his firearm and ordered him to drop the phone and raise his hands.  That person complied.  It transpired that it was Renier Ellerbeck.  He asked what was in the motor vehicle.  He responded by saying “Meneer kan mos sien”.  He asked him again what was in the boot.  Renier Ellerbeck told him it was abalone.  He informed him of his Constitutional rights and arrested him.  At the police station, DAFF officials identified, counted and took possession of the abalone.  He took Renier Ellerbeck to the police cells and made him to sign an SAP 14 form which contained and informed Renier Ellerbeck of his Constitutional rights as a detainee.  He detained him.  He advised Captain Swanepoel of the arrest of Renier Ellerbeck and that the latter wanted to meet him.  He testified that he had no opportunity to obtain a search warrant in the circumstances.

[21]      Sergeant Shaw testified further that the investigations led to the third activity which occurred on 17 April 2015 at 56 Heather Garden Square, Forest Hill.  Due to surveillance operations, Mr JP van Zyl was arrested at his house.  He was found in possession of abalone without a permit.  The search at his house was conducted without a search warrant.

[22]      In respect of the fourth activity, a search warrant was obtained by Sergeant Shaw and abalone was found at 6 Deborah Street, Westering which was the address of Accused 3.  The search warrant was issued by a Magistrate.  The search warrant was removed from the docket and never found.  The search at Accused 3’s house was done by members of the TTF and his unit.  However, the search was video recorded by Nicky Swarts of the TTF.  The search warrant at the time was executed by Warrant Officer Dirk of the Dog Unit.  This was in spite of Accused 3 having granted permission that his house be searched.

[23]      In respect of the fifth activity at 8 Corbin Street, Captain Swanepoel testified that no search warrant was obtained because the search was not planned.  It occurred after a motor vehicle driven by Edgar Clulow was found in that house.

[24]      Captain Swanepoel applied for a search warrant in respect of the sixth activity.  There was surveillance done of the house of Mr Smuts at the premises of the Department of Correctional Services in North End.  While still observing the house, they got wind that there were two motor vehicles which were transporting abalone. They spotted one of the motor vehicles.  They followed it to 15 Nassau Street, Kragga Kamma.  He approached the Commander of his unit Colonel Till to issue a search warrant.  He submitted a handwritten affidavit in support of the search warrant.  Colonel Till granted the search warrant and it was dated 10 July 2015.  In his written affidavit, he stated the reasons for the search.  The search warrant authorised Warrant Officer Scholtz and Captain Erasmus to conduct the search.  The person who occupied the house was Mr Scholtz.  The search warrant was executed on 12 July 2015 by Captain Erasmus.  The search warrant was handed in as Exhibit “B”.

[25]      The seventh activity relates to the house of Mr Smuts at the premises of the Department of Correctional Services.  Information came to hand that the house is used as a store house for abalone.  Sergeant Shaw applied for a search warrant.  The application was granted by Magistrate, Du Preez and handed in as Exhibit “C”.

[26]      Activity eight involved the arrest of Accused 2 in Jansenville and no search warrant was obtained because he was stopped on the road driving a motor vehicle which was laden with abalone.

[27]      In respect of the ninth activity, the search was conducted based on a search warrant which was granted by a magistrate (Exhibit “L”) and applied for by Sgt Shaw (Exhibit “M”).

[28]      On 30 September 2015, at 2 Creswell Street, Captain Swanepoel executed a search warrant.  It was upon information that Accused 2 was to transport abalone in a Ford Bantam bakkie.  Accused 2 lost them and they had to use the search warrant in searching those premises.  The search warrant was authorised by Colonel Till.  It was obtained on an urgency basis and was authorised at the shopping centre at Commercial Road.

[29]      On 28 June 2016 he and other members executed a search warrant and warrant of arrest in respect of Accused 1.  The search warrant is Exhibit “E” and the arrest warrant is Exhibit “F”.  Captain Erasmus executed both warrants.  Accused 2 was arrested by Warrant Officer Plaatjies and the latter further executed the search warrant which is Exhibit “G”.  Accused 3 went on his own to the charge office and he was arrested without a warrant of arrest.  Exhibit “H” is the affidavit in lieu thereof by Sergeant Shaw.

[30]      Sergeant Shaw, on 28 August 2015 at 8 Corbin Street, he again executed a search warrant which he obtained from Mr Du Preez.  It also authorised day and night search.  He was the only police officer authorised to conduct the search.  He stated that the form they used at the time did not provide a space where other police or people involved in the search should be written.

[31]      Sergeant Shaw was cross-examined at length about how unlawful the search was in respect of Renier Ellerbeck, the failure to obtain a search warrant at the time of his arrest and failure to reflect that Renier Ellerbeck was advised of his constitutional rights.

[32]      Furthermore, he was asked about the failure to reflect the offence(s) on Exhibit “C” i.e. the search of Mr Smut’s house (activity 7) and also the failure to reflect his name on the search warrant and that of Renier Ellerbeck.

[33]      He applied for Exhibit “J” on information received from Captain Swanepoel.  It was about a white Golf.  He did not know at the time that the person spoken about was Accused 3.  It was put to him by Mr Roelofse that the affidavit made fell short of explaining which offences Accused 3 was suspected of having committed.  The search was conducted at night, even though the affidavit in support of the search warrant does not reflect that it was to be a night search.

[34]      Warrant Officer Denzil Henry Dirk a member of the dog unit who executed a search warrant at 6 Deborah Street on 11 May 2015 at Accused 3’s place of residence.  Warrant Officer Dirk testified that he did not use the search warrant because Accused 3 gave him verbal permission to search the premises.  However he informed Accused 3 that they were in possession of a search warrant.  He was with Constable Spanneberg and Sergeant Shaw.  With the aid of their dogs, they searched and found abalone.  He conceded that the name of the suspect and the fact that he was armed with a search warrant, do not appear in his written statement i.e. Exhibit “N”. 

[35] Captain Hendrik Stephanus Erasmus (Captain Erasmus) has been involved in the investigation of illegal poaching of abalone since 1992.  He is also a police diver.  He executed Exhibit “B” at 15 Nassau Street on 12 July 2015.  He was working with Captain Swanepoel and members of the TTF.  They had kept the house under surveillance for some time.  On the day, he spotted Mr Scholtz getting into the property.  He waited for a while.  Mr Scholtz opened the door.  He informed him of his purpose and handed over the search warrant to him.  Mr Scholtz elected to keep quiet.  He found abalone in freezers.  He arrested him.

[36]      On 28 June 2016 Accused 1 was arrested in terms of a warrant of arrest marked Exhibit “E”.  He executed the warrant of arrest.  He simultaneously served Accused 1 with a search warrant.  Accused 1 phoned his attorney Mr Danie Gouws who later arrived at his house.  Mr Gouws was given the warrants.  They conducted a search and seized three cellphones amongst other things.

[37]      During cross-examination, Captain Erasmus conceded that Exhibit “B” did not comply with the requirements of a valid search warrant because it did not provide for the offence(s) the names of the suspect or owner of the property to be searched.

[38]      Captain Erasmus however, stated that in terms of the new pro-forma forms, all the requirements have been covered.  At the time Exhibit “B” was signed and furnished by the Magistrate to him, he believed that the search warrant complied with the legal prescripts and was valid.

[39]      As stated above, I allowed Captain Swanepoel to adduce hearsay evidence.  Captain Swanepoel testified about the arrest of Renier Ellerbeck by Sergeant Shaw along Marine Drive.  I shall deal with his evidence in this regard below when I deal with the evidence of Sergeant Shaw in the trial.

[40]      The State closed its case and I made the following order with reasons to follow:

“1. The search warrants Exhibit B, C, D and L are declared invalid.

2.  Exhibit E and G which are search warrants issued against accused 1 and 2 are declared to be valid.

3.   The search without a warrant conducted on 22 March 2015 in respect of Renier Ellerbeck (house and car) is valid.

4.   The search without a warrant of the car of Edgar Clulow is declared valid.

5.  The search without a warrant of the house J van Zyl is also declared valid.

6.   The State is allowed to lead evidence so that the court may be able to make a determination in terms of section 35(5) of the Constitution”.

[41]      These are now my reasons:

[42]      Chapter 2 of the Criminal Procedure Act, in particular sections 19 – 36 deal with seizure and for forfeitures of certain activities.  Section 20 stipulates which articles may be seized.  This section authorizes the state to seize any property within the Republic of South Africa or elsewhere which the State on reasonable grounds believe it to be concerned in the commission or suspected commission of an offence and offered evidence thereof.

[43]      Section 21 deals with articles to be seized under a search warrant.  Section 21 provides:

            “21 Article to be seized under search warrant

(1)           Subject to the provisions of sections 22, 24 and 25, an article referred to in section 20 shall be seized only by virtue of a search warrant issued –

(a)           by a magistrate or justice, if it appears to such magistrate or justice from  information on oath that there are reasonable grounds for believing that any such article is in the possession or under the control of or upon any person or upon or at any premises within his area of jurisdiction; or

(b)           by a judge or judicial officer presiding at criminal proceedings, if it appears to such judge or judicial officer that any such article in the possession or under the control of any person or upon or at any premises is required in evidence at such proceedings.

(2)           A search warrant issued under subsection (1) shall require a police official to seize the article in question and shall to that end authorize such police official to search any person identified in the warrant, or to enter and search any premises identified in the warrant and to search any person found on or at such premises.

(3)        (a) A search warrant shall be executed by day, unless the person issuing the warrant in writing authorizes the execution thereof by night.

(b)  A search warrant may be issued on any day and shall be of force until it is executed or is cancelled by the person who issued it or, if such person is not available, by a person with like authority.

(4)        A police official executing a warrant under this section or section 25 shall, after such execution, upon demand of any person whose rights in respect of any search or article seized under the warrant have been affected, hand to him a copy of the warrant”.

[44]      The provisions of sections 21(2) and 3(a) are peremptory with regard to the police officers to execute the search warrant, the article(s) to be seized, and the premises to be searched.  It allows further to search the person appearing on the search warrant or any other person found to be in the premises.  Section 3(a) further states that the search shall be conducted during the day unless the search warrant authorizes a night search.  This means if the search is to be conducted at night the search warrant should spell that out.

[45]      The issues pertaining to search warrant and the execution thereof was amply dealt with by the Constitutional Court of Minister of Safety and Security v Van Der Merwe.[2]  In summary Mogoeng CJ stated in summary form as follows:[3]

“(a)       The person issuing the warrant must have authority and jurisdiction

(b)        the person authorizing the warrant must satisfy herself that the affidavit contains sufficient information on the existence of the jurisdictional facts;

(c)        the terms of the warrant must be neither vague nor overboard;

(d)        a warrant must be reasonably intelligible to both the searcher and the searched person;

(e)        the court must always consider the validity of the warrants with a jealous regard for the searched person’s constitutional rights; and

(f)         the terms of the warrant must be construed with reasonable strictness”.     

[46]      Exhibits “B”, “C”, “D” and “L” do not comply with the provisions of section 21 of the Criminal Procedure Act and the common law requirements.  In all the search warrants, the offences are not clearly defined.  They are vaguely defined.  The offences with which the Accused’s are charged are not common law crimes.  They are statutory offences which are premised on the MLRA and the POCA.  All the search warrants do not refer to the relevant statutes let alone the sections allegedly contravened.  All the search warrants do not specify the name of the person to be searched.  The evidence indicates that the police knew at least the people who were targets of the search beforehand.  It was not difficult for them to either advise the commissioned officers or Magistrate who granted them.  As they stand, the search warrants did not meet the requirements as stated in Van Der Merwe (supra).

[47]      I found Exhibits “E” and “G” to be valid.  I made such an order based on the fact that they comply with the relevant provisions of the CPA.  The name of the police officer authorized to conduct the search is specified, the statute and relevant sections creating the offences have been referred to, the articles to be searched and the names of the person(s) are spelt out and the address of the premises.  Mr Price further attacked the quality of the search warrants, even those issued by the Magistrates.  The criticism by Mr Price is not unfounded.  Mogoeng J in Van Der Merwe (supra)[4] speaks of safeguard which should be adhered to in order to ameliorate the effect of interference with Constitutional rights of individuals in the quest to, amongst others, preventing, combating and investigation of crime.  He states as follows:

“[37]      These safeguards are: first, the significance of vesting the authority to issue warrants in judicial officers; second, the jurisdictional requirements for issuing warrants; third, the ambit of the term of the warrants; and fourth, the bases on which a court may set warrants aside.  It is fitting to discuss the significance of the issuing authority first.

[38]       Sections 20 and 21 of the CPA give authority to judicial officers to issue search and seizure warrants.  The judicious exercise of this power by them enhances protection against unnecessary infringement.  They possess qualities and skills essential for the proper exercise of this power, like independence and the ability to evaluate information so as to make an informed decision.

[39]       Secondly, the section requires that the decision to issue a warrant be made only if the affidavit in support of the application contains the following objective jurisdictional facts: (i) the existence of a reasonable suspicion that a crime has been committed; and (ii) the existence of reasonable grounds to believe that objects connected with the offence may be found on the premises or persons intended to be searched.  Both jurisdictional facts play a critical role in ensuring that the rights of a searched person are not lightly interfered with.  When even one of them is missing that should spell doom to the application for a warrant.  

[40]       The third safeguard relates to the terms of a warrant.  They should not be too general.  To achieve this, the scope of the search must be defined with adequate particularity to avoid vagueness or overbreadth.  The search and seizure operation must thus be confined to those premises and articles which have a bearing on the offence under investigation.

[41]       The last safeguard comprises the grounds on which an aggrieved searched person may rely in a court challenge to the validity of a warrant.  The challenge could be based on vagueness, overbreadth or the absence of jurisdictional facts that are foundational to the issuing of a warrant”.    

[48]      It is important further, that the person authorizing the search warrant must satisfy herself or himself that the affidavits contain sufficient information to enable him to find the exercise of the jurisdictional facts.  Some of the affidavits on which the search warrants were authorized are lost.  I am unable to pronounce on whether the person authorizing the search warrants correctly applied his or her mind in assessing the jurisdictional facts in some of the search warrants because the affidavits submitted in lieu thereof have been lost.  However, the converse is true when it came to Exhibits “E” and “G”.  Captain Erasmus attributes the correctness of the procedure followed to the new roneo form which has been developed presumably because it was premised on the provisions of the CPA and the Van Der Merwe judgment.

[49]      As stated before, some of the searches were conducted without search warrants.  Section 22 of the CPA authorizes a police official to search any person, container or premises for the purpose of seizing any article if (a) the person concerned consents thereto or has reasonable grounds to believe that a search warrant will be issued to him in terms of section 21(1)(a) if he applies for it and that a delay in obtaining such a warrant would defeat the object of the search.

[50]      In respect of the first activity, Renier Ellerbeck was arrested at Marine Drive without search and arrest warrants.  Sergeant Shaw was patrolling and pounced upon him committing an offence in the circumstances described above.  He believed at the time that Renier Ellerbeck was committing an offence which turned out to be a correct belief.  He chased and caught up with him.  From the circumstances, it is clear that there was no way that Sergeant Shaw would have obtained a search warrant as suggested by Mr Price.  Doing so would defeat the very purpose of seizing the abalone and the arrest of Renier Ellerbeck.  This to me is a classic example of where section 22 of the CPA is applicable hence I declared the search to be valid.  I did not base my decision on the search warrant which Sergeant Shaw alleged they were armed with but on his testimony that Accused 3, consented to the search.  The evidence of Sergeant Shaw is confirmed by the evidence of Warrant Officer Dirk.  No evidence was tendered to gainsay Sergeant Shaw, in this regard.  I accepted his evidence and declared the search to have been lawful in the circumstances.

[51]      The arrest of Accused 2 and the search of his motor vehicle was also challenged.  Captain Swanepoel gave hearsay evidence about how Accused 2 was arrested in Jansenville.  He testified that Accused 2 was stopped, and his motor vehicle was searched without a search warrant because the police officers had reasonable suspicion that an offence had been committed.  Indeed abalone was found laden in the back of the bakkie.  I accept it was hearsay in terms of section 35(5) of the Constitution.  I further accepted hearsay in respect of his evidence because I was of the view that doing so would not render the trial unfair.                 

Trial:

[52]      Captain Swanepoel testified that on the day of the arrest of Renier Ellerbeck he received a cellphone call from Accused 1.  Accused 1 told him that there were people who were driving recklessly on the Marine Drive.  On 25 March 2015 Renier Ellerbeck appeared in court.  He got a message that Ellerbeck wanted to see him.  He met with him in the police cells.  Renier Ellerbeck requested to meet with him after his release on bail.  They eventually met.  The latter informed him that he wanted to make a clean breast of the abalone racketeering activites and turn a State witness against Accused 1.  He laid bare his personal circumstances especially that he wanted to pay off a motor vehicle that he had just purchased i.e. an Opel Kadett.  He informed him of the provisions of section 204 of the Criminal Procedure Act and informed him that it depended on the Public Prosecutor.  He informed Renier Ellerbeck that he has a right to inform his attorney so that he may be involved in the process.

[53]      Having discussed the matter with the Public Prosecutor, the charges were withdrawn against Renier Ellerbeck with the understanding that he was to be used as a section 204 witness against the accused.  A statement was obtained from Ranier Ellerbeck.  He explained in the statement and to Captain Swanepoel that he was part of a syndicate which unlawfully poached abalone.  He implicated Accused 1.  He explained the role he played in the commission of the offences.  Renier Ellerbeck further implicated Edgar Clulow.  Renier Ellerbeck described to him that Edgar Clulow was responsible for weighing of abalone so that Accused 1 may be able to know how much abalone, in terms of weight, each diver harvested and the amount due to each diver.  Once the abalone has been weighed, it would be taken by other people to a store house.  The store house was kept a secret from Renier Ellerbeck.  All Captain Swanepoel got from Renier Ellerbeck was who shall fetch the abalone and the make of the motor vehicle.

[54]      Captain Swanepoel then wanted to make sure that Renier Ellerbeck was telling the truth.  He gave him a video camera device to put in his kitchen where the abalone would be weighed.  He showed him how to operate the video camera.  At a later stage he viewed the camera with Renier Ellerbeck.  I must mention that the recording was viewed and the people appearing on it were identified.  The footage unfortunately had no audio.  The video footage had three recordings which dealt with the second racketeering activity.

[55]      Renier Ellerbeck furnished Captain Swanepoel with the name of Accused 3 and the make of the motor vehicle he would drive and its registration number.  He described as a white Golf with registration letters and numbers HFY 607 EC.  He informed him that Accused 3’s name was Brandon Turner.  He further told him that Edgar Clulow who was identified on the video footage, would come and weigh the abalone.  He would be driving a red Nissan bakkie.  The plan by Captain Swanepoel was to follow the two motor vehicles so as to trace where the store house was.  They secretly followed the white motor vehicle for approximately three weeks until it was found at 6 Deborah Street in Westering e.g. the fourth activity.

[56]      Captain Swanepoel testified that when Renier Ellerbeck was arrested, his cellphone was confiscated.  He decided to apply for an order to obtain a detailed cellphone billing of Accused 1.  The billing ran into thousands of calls.  However he produced a synopsis of the cellphone calls between Accused 1 and various other people of interest in this matter.  Captain Swanepoel testified as follows regarding the cellphone numbers and who they belong to.

·         078 … belonged to Accused 1.

·         073 … belonged to Renier Ellerbeck.

·         084 … belonged to Accused 2.

·         074 … belonged to Lucy Ellerbeck who is the wife of Renier Ellerbeck.

·         082 … belonged to Leon Scholtz who is Accused’s 1’s friend.

·         079 … belonged to Tanya Weitz Accused 1’s girlfriend.

·         071 … belonged to Edgar Clulow.

[57]      From the synopsis of the cellphone billing of Accused 1 he produced Exhibit “P” which had to do with the third racketeering activity.  Accused 1 phoned Edgar Clulow on 17 April 2015 from 04:58:31.  He testified that Michael Koen and Rynhardt Jonk were known abalone divers.  The latter died of drowning whilst he was diving.  He testified that when the house of Accused 1 was searched Captain Erasmus found three bail receipts that reflected payment paid on behalf of three abalone divers on different occasions namely, Nicolaas du Plessis, Rynhardt Jonk referred to above and David van der Merwe.

[58]      He was present when a search was conducted in respect of the fourth activity.  A search warrant that had been obtained got lost.  On 11 May 2015, he and other members of the TTF Unit and members of the Dog Unit conducted a search at 6 Deborah Street using the lost search warrant.  They found Accused 3 and his wife.  Abalone was found.  They took photographs hence Exhibit “R”.  A Golf motor vehicle with registration numbers and letters as described to him by Renier Ellerbeck was found at the premises.

[59]      After Accused 3 was arrested, Renier Ellerbeck informed him that Edgar Clulow was now transporting abalone.  He furnished him with the make and registration numbers and letters of the motor vehicle he was using.  It was a white Jetta CSI.  They spotted the motor vehicle on 28 May 2015 and followed it.  Unfortunately they lost it.  They called the SAPS helicopter to assist them.  The helicopter crew directed them to 8 Corbin Street.  They found Edgar Clulow and arrested him for possession of abalone.

[60]      Exhibit “S” was compiled by him.  It reflected cellphone calls made from and between Accused 1 and Edgar Clulow, Marelise who is the mother of Accused 2’s child, Ermile Dunson, Renier Ellerbeck, Tanya Weitz, Danie Gouws who is an attorney, Johny Schultz and Tommy Lamont who owned the house in 8 Cobin Street through a Trust.  Lamont further contributed a sum of R160 000.00 towards the bail money of Accused 1.

[61]      Now that the store house at 8 Corbin Street was found, Renier Ellerbeck informed Captain Swanepoel that Accused 1 asked him to look for another store house.  Renier Ellerbeck got a house in Uitenhage but it was never used by Accused 1.  Renier Ellerbeck was ordered by Accused 1 to start transporting abalone.  Captain Swanepoel rented a car from a rental company which was fitted with a tracking device to monitor the movements of Renier Ellerbeck.  He soon told them about a house at the Department of Correctional Services.  The house belonged to Jannie Smuts (Smuts) who worked as a Prison Warder.  Renier Ellerbeck informed him that it was a weigh house.

[62]      The house of Smuts was put under surveillance.  Renier Ellerbeck informed the police about a white Bantam bakkie with registration letters CAW. After a few attempts they spotted the Bantam bakkie collecting abalone from Smut’s house and followed it to 15 Nassau Street in Kragga Kamma Road.  They obtained a search warrant and Captain Erasmus executed it and arrested Pierre Scholtz on 12 July 2015.  It is after that incident that Renier Ellerbeck advised them that Smut’s house was converted to be a store.  They observed Smut’s house for a few days.  They applied for a search warrant and executed it.  They found three fridges laid with abalone. Some of the abalone was found at the backyard of Smuts.  Captain Swanepoel called Mr Dennis Mostert who is a senior official at DAFF to come and certify the abalone and in counting it.  That was on 4 August 2015 which is the seventh activity.  Smuts was arrested.  The search and the arrest of Smuts occurred in the presence of two attorneys, Mr Gouws and Mr Malan de Beer.

[63]      After the arrest of Smuts, Captain Swanepoel compiled a synopsis from the cellphone billings of Accused 1.  It was handed as Exhibit “V”.  Accused 1’s cellphone number appears as 076 331 72322.  Accused 1 phoned Smuts and Clulow on different occasions on 4 August 2015.  It appears as follows on Exhibit “V”:   

2015/08/14 11:13:17 PM	MS terminating SMS in MSC	Clulow	27633172322
2015/08/04 11:18:37 PM	MS Originating	27633172322	Clulow
2015/08/04 11:43:26 PM	MS Originating	27633172322	Clulow
2015/08/04 11:44:52 PM	MS Originating	27633172322	Clulow
2015/08/04 11:59:43	MS Originating	27633172322	Clulow

 

2015/08/04 01:50:35 PM	MS Originating	27633172322	J Smuts
2015/08/04 02:36:18 PM	MS Originating	27633172322	J Smuts

Captain Swanepoel testified that he knew all of their cellphone numbers hence he was able to compile Exhibit “V” from Accused 1’s cellphone itemised billings. 

[64]      Captain Swanepoel testified about how Accused 2 was arrested by members of the Crime Prevention Unit of Graaff-Reinet at Jansenville.  I need not deal with his evidence in this regard as the arresting officer testified as is reflected below.  He further submitted the photographs of the incident as Exhibit “W”.  It further transpires that the motor vehicle Accused 2 was driving had false number plates.  The history of that motor vehicle on E-Natis revealed that it belonged to Leon Groenewald who in turn sold it to Theo Lochner.  The motor vehicle therefore belonged to Theo Lochner.  Theo Lochner informed Captain Swanepoel in a statement he obtained that the motor vehicle was bought from him by Accused 1 on behalf of his friends.  He traced the registration documents of the motor vehicle and it transpired that it was in the process of being transferred to IP Scholtz.  The true registration numbers of the motor vehicle are DMM 760 EC according to the eNatis system and it was in the name of Mr IP Scholtz whose ID number is 6….  The same ID number according to Captain Swanepoel corresponded with the ID number of IP Scholtz of 15 Nassau Street.

[65]      When Accused 2 was arrested, his cellphone was confiscated.  On the phone, a message was found which was sent to Accused 1’s cellphone.  It read:

            “54 sakke 912 kg sonder die punte.  Hoor by die ou.  Hy moet kyk vir ‘n blaai.  Ek weet nie waar   die ding is nie”.

            Literally translated:

            “54 bags 912 kg without the points.  Hear by them, he must just look for the page.  I don’t know    where the thing is”.

[66]      He did the same exercise of going through the cellphone billing of Accused 1 on 16 August 2015 and found that there was communication between Accused 1, 2 and Ryno Scholtz who is an attorney of Renier Ellerbeck.  Accused 2 was arrested.  He appeared in court and was released on bail of R10 000.00.  The money was received from Accused 1.  Bail was paid.

[67]      On 28 August 2015, Edgar Clulow was arrested with abalone at 8 Corbin Street, Sherwood.  The house belonged to a Trust of Tommy Lamont.  Now Eadgar Clulow was represented in the case by Mr De Beer who worked with Mr Danie Gouws.  Edgar Clulow eventually pleaded guilty to two counts i.e. the incidents of that occurred on 28 May 2015 and 26 August 2015. 

[68]      As stated before they got wind that Accused 2 was to transport abalone in a Bantam bakkie to 2 Creswell Street. They placed the house under surveillance and also followed Accused 2.  Furthermore, as a safety valve, they applied for a search warrant.  On 3 September 2015, they missed Accused 2 on his way to 2 Creswell house and only saw him when he was already inside the premises.  Accused 2 left before they could get into the premises.  They found a security guard by the name of Plaatjies.  They found abalone in a wheelbarrow behind a roll-up door in the house.  The owner of the property was Emile Donson alias Botter.  The premises were used as a scrapyard.

[69]      On 11 April 2015 there was an explosion at the corner of Lindsay Road and Buitekant Street in Neave Township.  The property belonged to WH Parker Property and was leased by Jonathan Peter Fowke.  It exploded because of a leaking gas stove.  It transpires from the investigations and the items found there that it was used as a cooking facility and processing of abalone.  Two people perished.  That constitutes the eleventh racketeering activity.  It is common cause by now that Accused 1 used a Ford Ranger bakkie that was in the name of Mr Fowke.

[70]      Captain Swanepoel further investigated a Ferrari motor vehicle which was allegedly driven by Accused 1 having been financed by Mr Kriel.  During Captain Swanepoel’s testimony a video clip was played which depicted a weighing scale and a bag containing abalone.  The video was retrieved from a Blackberry cellphone which belonged to Accused 1.  There was an audio which was taken from the same phone.  There was also a picture of a paper with names, numbers as well as a column which was Exhibit “DD”.

[71]      Captain Swanepoel was questioned extensively about sections 20 – 24 of the Criminal Procedure Act and what information was missing on the search warrant like the offences names and talking to Renier Ellerbeck at court and eventually in his office after he was released on bail.  He further confirmed that Accused 1 used to phone and visit him in his office and he talked about abalone pouching.  He however, stated that Accused 1 gave information only about one person i.e. Jonathan Reed and no other.  He further confirmed that the statement of Renier Ellerbeck was obtained on 26 January 2016 before he got information about Edgar Clulow, Smuts and Van Zyl.  They acted on information received from Renier Ellerbeck to investigate the other racketeering activities.

[72]      Captain Swanepoel confirmed that they never found Accused 1 with abalone.  Captain Swanepoel testified that he did not need to make an application to the Director of Public Prosecution in order to set up the cameras at Renier Ellerbeck’s house because it was not a trap.  Renier Ellerbeck never invited people to come and commit crime at his place but had the device namely to prove the activities that were occurring at his place.

[73]      It was suggested to Captain Swanepoel that he did not know what the conversation was between Accused 1 and the 204 witnesses.  Captain Swanepoel responded by saying the 204 witnesses would testify to that.  Based on the telephone bills, Gouws appears to have been phoned at the time of the arrest of the 204 witnesses and Avvused 1 would appear at the scene.  (See:  Exhibit “V” in this regard).

[74]      Under cross-examination by Mr Roelofse, Captain Swanepoel conceded that his statement seems to be leaning on the impression that they were concerned about the premises more that they were about Accused 2 transporting abalone in a Bantam bakkie.  He agreed stating that his intention were not clearly captured in his statement.

[75]      Captain Swanepoel testified that he met Accused 3 for the first time on the night of his arrest.  He confirmed informing Sergeant Shaw that the name of Accused 3 was Turner.  He told him the make, colour and registration letters and numbers of the motor vehicle Accused 3 would be driving.  He got the information from Renier Ellerbeck.  It was put to Captain Swanepoel that Accused 3 did not know Accused 1 he only met him in court.  He further confirmed that from the synopsis there was no contact between Accused 3, Edgar Clulow, Renier Ellerbeck etc. however he insisted that there was a cellphone call between Accused 1 and Accused 3 even though it was not relevant to any of the racketeering activities.  He disagreed with the version of Sergeant Shaw in his affidavit that he received the information about 5 Nassau Street on 28 April 2015.

[76]      Sergeant Shaw was recalled to testify in the trial.   I incorporate his evidence adduced in the trial within a trail in respect of how he arrested Renier Allerbeck at Marine Drive.  He confirmed the evidence of Captain Swanepoel insofar as the latter met and discussed with Renier Ellerebeck at the court precinct, which culminated in the discussion that lead Renier Ellerebeck becoming a 204 witness.  The arrest of Ellerbeck opened the investigation in the abalone poaching.  He received information from Captain Swanepoel about a white Golf that was to be used in transporting abalone from a house in Algoa Park.  He and other members kept observing the Golf over a long period.  After some days they spotted it and followed it to 6 Deborah Street.  He applied for a search warrant which was granted.  The search warrant was executed at night by Warrant Officer Dirk of the Dog Unit.  They knocked and the door was answered by a white female.  Accused 3 appeared and gave permission that the house may be searched.  In one of the rooms they found deep freezers.  They opened the freezers and found bags full of frozen abalone.

[77]      The abalone was weighed by DAFF officials.  Its weight was 7.570 units which is 1.125 tons.  He further confiscated cellphones from Accused 3 and sealed them in a seal bag.  He personally took them to South African Police Forensic Head, in East London where information was downloaded.  Vicky Swarts, who is a member of the TTF video recorded the search and took photographs of what was seized.  Mr Mostert from DAFF was also at the scene.

[78]      In respect of the seventh activity, Sergeant Shaw was part of the team that observed the house of Smuts at No. 4 Correctional Services.  They found that there was a 1400 Nissan bakkie that would take abalone from Smut’s house to the other side of North End.  He then applied for a search warrant from a Magistrate which was granted i.e. Exhibit “C”.  He executed the search warrant on the afternoon of 4 August 2015.  He was assisted by Mr Mostert, Captain Erasmus and other members of the TTF.  He found Mr Smuts present and bags of abalone were found lying on the floor, and in a fridge.  Mr Gouws arrived and they showed him the search warrant.  The abalone weighed 3.152 units.

[79]      Sergeant Shaw testified that he traced the motor vehicle which was driven by Accused 2 at the time of his arrest in Jansenville.  It turned out that the registration was false.  He confirmed the evidence of Captain Swanepoel about its ownership.

[80]      Sergeant Shaw got information that 8 Corbin Street was either used to weigh or to store abalone.  He applied for a search warrant which was granted.  He asked for assistance from Captain Erasmus and members of the TTF.  They met at Spur Walker Drive.  Whilst still there a white Ford Ranger with registration letters and numbers FYF 604 EC stopped across the road.  It is the same motor vehicle that blocked him when he was chasing Renier Ellerbeck on the Marine Drive road.  A person, identified by Captain Erasmus as Accused 1 alighted from the motor vehicle.  Captain Erasmus approached Accused 1 and they talked.  Sergeant Shaw drove to 8 Corbin Street.  They approached the house with Captain Erasmus having joined them.  He went round the house and saw people jumping over the wall.  They found abalone lying on the ground.  After a few minutes other members arrived having caught the people who had fled the scene.

[81]      On 30 September 2015 Andrew Plaatjies was arrested.  He obtained a statement from him in the presence of his lawyer.  Sergeant Shaw was cross-examined on the statement/affidavit he made when he applied for a section 205 subpoena to obtain cellphone records.  In the affidavit, he reflected that the abalone found at 8 Corbin Street on the first occasion was 3000 units instead of 1011.  He was further referred to the indictment where, in activity three, the amount of abalone found at 56 Heather Square Garden is 691 units instead of 4500 units reflected in his affidavit in terms of section 205.  He was further referred to his statement dated 10 October 2016 where he noted that at Smut’s house 3156 units were found instead of 3152 units. He ascribed the discrepancies to be a human error.  Mr Price put to him that he was not a trustworthy witness and those were not errors but meant to mislead the court.

[82]      Sergeant Shaw was further criticized for not having warned Renier Ellerbeck of Judges Rules 2.  He was further asked whether Renier Ellerbeck waived his rights to legal representation and to remain silent.  Sergeant Shaw testified that when he asked him about those two rights, Renier Ellerbeck answered “ek verstaan” meaning I understand.  In his understanding, Renier Ellerbeck did waive his rights.

[83]      In respect of his involvement at 6 Deborah Street, he stated that he followed the white Golf from Cape Road to that house.  He parked at a distance walked to No. 6 and heard doors being slammed and realised that it was the store house they had been looking for.  That was the third occasion he had been following the Golf.  On the first occasion the Golf managed to evade him.  He did not see who was driving the car and whether it had passengers or not.  He only saw Accused 3 for the first time on the day of his arrest.

[84]      Sergeant Shaw testified that what appears in his statement (that he received information that abalone was kept at 6 Deborah Street) was wrong.  He only got information that the house was in the area of Westering.  He only described 6 Deborah Street on the third occasion.  He stated that he was not misleading the Magistrate by what appeared in his statement about the address.  The version of Accused 3 was put to Sergeant Shaw that Accused 3 was not the occupant of the house where abalone was found.  Sergeant Shaw disputed that alleging Accused 3 had the keys to the garage.  Accused 3 further did not tell them that he was not the occupant thereof.

[85]      Capt. Erasmus is a bomb technician, Inspector of explosives and investigating of all explosive related incidents.  He received his training from the Scotland Yard, military as well as SAPS.  He has been in the service for more than thirty years.

[86]      Captain Erasmus testified about the fifth activity which involves Edgar.  It occurred on 25 May 2015 at 8 Corbin Street, Sherwood.  He testified that he received information from Captain Swanepoel that there was a white Jetta motor vehicle with the following registration number BCL 444 EC that was transporting abalone to a weigh station.  The vehicle was spotted and followed by a group of other police officers involved in the investigation including himself.  They even made use of a helicopter to track the motor vehicle.  The motor vehicle was traced to 8 Corbin Street in Sherwood.  He was amongst the first police to arrive at the specific address.  As he entered the yard he saw Edgar alighting from the vehicle.  They both knew each other.  Edgar appeared to be very nervous.  He informed him that he was aware that he was transporting abalone and requested to search his motor vehicle.  Edgar agreed and opened the motor vehicle including the boot.  Inside the boot he found abalone packed in blue chokka bags.  He subsequently informed him of his Constitutional rights.  He was placed under arrest.  Immediately as they were still busy with the vehicle taking photographs, Malan De Beer arrived at the scene.  Mr De Beer advised Edgar of his Constitutional rights and told him to keep quiet.  They summoned Mr Mostert from DAFF to identify and help in weighing the abalone.  Mr Mostert, in the presence of Edgar counted the abalone and placed it in evidence bags.  It weighed 1011 units.  On arrival at the police station before he was detained Edgar was advised of his Constitutional right as contained in SAP 14A form.

[87]      On 12 July 2015, they received information that there is a motor vehicle which is going to be transporting abalone to 15 Nassau Street, Kragga Kamma.  They applied for a search warrant which was granted.  They observed the house.  He saw Mr Scholtz driving into the property.  He waited for a short while and then followed him into the property.  He intended to observe whether Mr Scholtz is not going to offload abalone from his vehicle.  He announced his presence whilst he was at the gate. No one responded.  He pushed opened the gate and entered the premises.  He went to the front door and knocked.  There was no response.  He felt the door.  It was not locked. He shouted announcing his presence saying it is the police please open the door.  Even then no one responded.  He pushed the door open.  He saw Mr Scholtz coming out of the bathroom with a towel wrapped around his waist.  He informed him that he had a search warrant for the premises as they suspected that there was something which was illegally stored in the premises.  He entered the house and met Mr Scholtz on the hallway of the house.  He could smell the abalone because it has a distinctive smell.  As he was approaching him he saw on his left a door leading to the garage.  He saw wooden crates that were stacked on top of each other and behind them there were two large chest freezers.  Then he suspected that definitely that there was abalone in the premises. He advised Mr Scholtz of his Constitution Rights.  Mr Scholtz preferred to keep quiet and not to respond to his questions.  Mr Scholtz turned around and proceeded to his bathroom and started to pack his clothing in a small bag.  He asked him what he was packing.  Mr Scholtz responded “I know that you going to take me with”.  He then seized two of the cellphones which he was carrying.

[88]      On entering the garage he realised that there was actually three freezers.  He requested Mr Scholtz to open the freezers to which he obliged.  Two of the freezers contained abalone.  He then summoned Mr Mostert to come and check the species of the abalone, count and weigh it.  At all material times when he was involved with the accused he was busy taking photographs.  Thereafter, he arrested Mr Scholtz for illegal possession of abalone which weighed 1618 units.

[89]      He testified that they got information about the house of Smuts at Correctional Services.  They surveyed the house for quite a while.  He was also involved in the surveillance of the house.  At times he would see Accused 1 and Accused 2 arriving at the house.  They would off-load abalone.  Accused 1 would leave Accused 2 apparently weighing the abalone.  Accused 1, according to him, would leave Accused 2 there and take a block watch.  Accused 1 would then come back and pick up Accused 2.  The latter would be in possession of a scale.  He observed that there was a red Nissan bakkie which would get to the property to pick up abalone and transport it to another vehicle which would then take over the abalone and go with it.  At times they would follow the red Nissan bakkie to 2265 Kragga Kamma Road, those being the premises Mr Neels Hattingh.

[90]      Captain Erasmus testified that he was involved in racketeering activity nine that occurred at 8 Corbin Street where Edgar was arrested with 291 units of abalone without a permit.  They got information that there was abalone coming through to Edgar’s home.  They combined their operations based on that information and gathered at an open area across Spur Restaurant at Walker Drive.  They spotted the motor vehicle.  He saw Accused 1 across the Street.  He decided to drive across to keep Accused 1 busy so that he could not see his members who had gathered across the road.  They wanted to execute a search warrant.  He stopped next to Accused 1.  Accused 1 alighted from his vehicle and he was followed by his fiancé.  He parked in such a way that he would obscure his view of the members.  On realising that all the members had despatched he left and drove off.  He drove away from Corbin Street to disguise his movement and then took another turn to the same house.  He drove to the back of the property.  As he drove round he spotted people weighing abalone.  The boot of the Jetta was opened. Amongst them he recognised the two Clulow brothers.  They ran and jumped over the fence.  He phoned his members and informed them of what they were wearing and the direction they took.  They were apprehended and took back to the scene.  Photographs were taken.

[91]      Captain Erasmus testified about racketeering activity eleven which took place on 11 April 2016.  That is where the explosion occurred and two foreign nationals were killed.  For the reasons which are going to follow below I shall not delve much on this activity.  Suffice for me to say that he discovered that it was an explosion which was due to a gas leak when abalone was processed.  In other words it was a processing plant where abalone was cooked and dried.  It is further apparent from his evidence that the property was leased out to Mr Fowke.  He testified that one of the bakkies which was used by Accused 1 belonged to Mr Fowke.  Accused 1 was leasing a property belonging to Mr Fowke which was in Jeffreys Bay at some stage.  I shall not deal with the incident which occurred between Accused 1 and Captain Erasmus at Jeffreys Bay for it is not relevant to the present matter.

[92]      On 28 June 2016, Captain Erasmus together with other members of the Task Team visited the house of Accused 1 with the purpose of executing search and arrest warrants to him. On arrival they found two cellphones which were in possession of Accused 1 and the third one was given to him or found at the house of Accused 1 by other members.  Inside the kitchen area they found money, steroids, documentation like bail receipts for abalone divers, numerous vehicle registration certificates and ownership certificates of vehicles.  His attorney Danie Gouws arrived.  He showed Mr Gouws both warrants.  Mr Gouws scrutinised them and did not comment.  He remained throughout the search up until they took Accused 1 to the police station.

[93]      Captain Erasmus was cross-examined at length about whether he had advised all the arrestees that is Edgar, Smuts and all those whom he arrested advised of their Constitutional rights.  He confirmed having done so.  The same obtained to the cross-examination of Edgar, Smuts, Renier Ellerbeck and others about whether they were advised of their Constitutional rights prior to them being arrested.  Captain Erasmus was informed that Edgar had told the court that he would not have co-operated with the police had he known that the search and his arrest was unlawful.  Captain Erasmus insisted that the people concerned had consented to the search without insisting on a warrant.  He further conceded that most of what he testified to about observing Accused 1 and Accused 2 at various places especially that of Smuts do not appear on his statement.  He testified that it was not necessary for him to reduce everything in writing.  The reason being that he did not effect an arrest.  If there was an arrest due to that surveillance then he would have reflected that information in his statement.  But for the fact that no arrests were effected then he did not see a need to reflect that in his statement.

[94]      Mr Price pointed out to Captain Erasmus that in all the statements which he made he never mentioned the involvement of Accused 1. Captain Erasmus confirmed that there is no mention of Accused 1 in all his statements.

[95]      Captain Erasmus stated that all that they gathered from their surveillance and investigations was communicated to Captain Swanepoel who was the investigating officer.  They would verbally discuss everything in a meeting pertaining their surveillance and investigations. He further conceded that he never put down in his statement that he pretended at some stage to be withdrawing money when Accused 1 came to check who was driving the motorcycle.  He further confirmed that it does not appear in his statements that when they came to arrest Accused 1 the latter volunteered his cellphones and gave them to him.

[96]      Under cross-examination he narrated an incident where there was a fight between Accused 1 and another person.  One Garth Du Plessis (Duppie) was shot and killed.  He attended to the scene to investigate who shot at him.  He approached Accused 2 to find out who shot Duppie because it was alleged that Accused 2 was at the scene when he was shot dead.  He tried to convince Accused 2 to reveal the name of the person who shot the deceased.  Accused 1 arrived at the scene.  He warned both Accused 1 and 2 that they must decease from engaging in unlawful abalone activities because they would go to jail for a long time.  He gave a choice to Accused 2 to either be on the side of the police or on the side of Accused 1 and if he chooses the latter then he must know that he is going to be in trouble and that would result in him going to jail for a long time.  He further testified that Duppie was a known abalone poacher.

[97]      Dennis William Mostert is a chief inspector for DAFF and is based in Port Elizabeth.  He was 37 years with the Department, 27 years of which he was involved in abalone anti-pouching operations.  He was enforcing the provisions the MLRA.  He went home in explaining how it came about that abalone harvesting was prohibited from 2003 and 2008.  He explained the structure of those cartels as dealt with in the evidence of other witnesses.

[98]      He testified that depending on the size and colour of abalone, divers get paid up to R600.00 per kilogram.  The kingpins depending on whether the abalone is processed, dried and the dollar exchange rate would get between R2000.00 and R5000.00 per kilogram.  It is mainly taken to the Far East. In response to question he testified thus:

“My Lord, abalone is one of the top five seafood dishes in Asia.  It is well sought out among those communities, they believe that it reduces senility and it enhances fertility and also if you can dish up abalone at an Asian table, it is a matter of class, status, that you can actually afford such a dish to your visitors and it is also used for ceremonial use, maybe a wedding or the birth of a child.”

[99]      He further testified that South African abalone i.e. Haliotis Midae is the world sought after species of abalone and is commercially viable.  Mr Mostert spoke about areas along the South African coast particularly Schoemakerskop to Cape Recife.  They seed abalone in that area.  The small abalone is placed back into the ocean to stock up the depleted areas.  They would allow the abalone to grow for a period of seven to eight years so that each may reach the legal seize of 114 millimetres before it can be legally harvested.

[100]   DAFF officials have to visit the crime scene, certify the abalone, weigh it and value it.  A company called Wild Coast Abalone was employed to look after the ranching areas.  In turn, it employed a security company called TTA.  He testified that once abalone is confiscated it gets counted, a receipt issued and taken to Cape Town where it is stored until it is auctioned.

[101]   He testified that DAFF members like Mr Ngcebetsha, Mrs Hoza and himself attended the various places where abalone was found.  He stated as follows about the value and weight in respect of the various activities:

            171.1  In respect of the first activity the units found are valued at R37 800.00.

            171.2  The third activity valued at R44 700.00.

            171.3  The fifth activity valued at R 78 600.00.

            171.4  The sixth activity valued at R 98 400.00.

            171.5  The seventh activity valued at R204 600.00.

            171.6  The eight activity valued at R471 480.00.

            171.7  The ninth activity valued at R 20 400.00.

            171.8  The tenth activity valued at R63 600.00.

[102]   He mentioned that DAFF official’s seldomly applied for search warrants because they pursue abalone poachers once they are spotted with abalone.  They would not have time to approach the relevant officials to obtain search warrants because they would be in hot pursuit of the poachers.  He further testified that members of the TTA would not have the same arresting and search powers as he had.  He said they:       

“can only basically work in the presence of a permanent member who happen to be, it is in terms of supervision, accountability and monitoring the duties.  It is not similar to the police reservist system but we have strict control over our honourers; they work with us in the field and they do valuable work, they are also the eyes and ears of the Department.   . . .  If anybody is stealing or poaching abalone in the ranching area, I am of the view that officer can apprehend that person, whether it is for common theft and then contact DAFF to bring charges under MLRA, they are within their rights.” 

He categorially stated that Mr Swartz was not allowed to enter a house and search abalone.

[103]   Constable Romano Clinton Spanneberg worked for the Dog Unit.  His dog was trained to detect threatened marine species like smelling of abalone, crayfish and Elephant tusks and Rhino horns.  On 11 May 2015 he and his dog were part of the team of investigators that searched No. 6 Deborah Street.  He was asked by Warrant Officer Dirk to go to that house with his dog.

[104]   On arrival Warrant Officer Dirk spoke to Accused 3 who had answered the door.  He asked for permission to search the house and he (Spanneberg) asked from Accused 3 to use his dog to search the motor vehicle and the other areas.  It was a white Golf.  When Accused 3 agreed, he caused him to sign and acknowledge consent in his pocket book.  He asked if the motor vehicle was his.  Accused 3 confirmed and granted permission to search the motor vehicle as well.  Accused 3 unlocked the motor vehicle for him with the key he had in his possession.  He conceded that information did not appear in his written statement.  He forgot to mention that.

[105]   Constable Spanneberg then took the dog to the motor vehicle.  It barked when it got to the boot thereafter he directed it to the garage door.  The dog scratched the garage door.  Both were signs that there was abalone which was in the motor vehicle and garage.  Accused 3 went to fetch a key and he unlocked the garage door.  In the garage they found deep freezers which contained bags full of abalone.  The bags are shown in images appearing on Exhibit “R”.  He saw the search warrant.  He did not scrutinise it.

[106]   It should be noted that Jean-Pierre Van Zyl refused to testify because he felt by doing so, he would put his life in danger.  He was excused from testifying.

[107]   Thomas George Swartz works for the TTA and was responsible for the protection of Marine Species including abalone from Cape Recife to Schoenmakerskop.  He testified that the TTA was undersigned by the DAFF.  They were vested with rights to arrest abalone poachers.  He was a Commanding Officer in TTA.  They set up a data base and would take photographs of the area, patrol, follow certain people who were suspected to be poachers and who had been arrested before by members of the South African Police.  The company he worked for was Wild Coast Abalone.  They placed the house of Van Zyl i.e. 56 Heather Garden Square under surveillance a day before Van Zyl was arrested.  On the day of arrest, he found abalone in a Golf motor vehicle.  Mr Van Zyl came out of the house and he placed him under arrest for possession of abalone.  Two other escaped and were never apprehended.  He searched and seized the abalone without a search warrant because he believed he had a right to do so because an offence had been committed in his presence.

[108]   Warrant Officer Shane Bosch testified that he worked under the Organised Crime Unit (OCU).  In July 2015 he was asked by Captain Swanepoel to do observation duties at the Correctional Services i.e. the house of Smuts.  He did so in the evening.  He used his motorcycle.  He was with Warrant Officer Wait.  They were asked to look out for a white Bantam bakkie.  After about an hour and a half they spotted the bakkie reversing into the property.  It was in the property for about ten minutes.  It drove away thereafter.  They followed it to 12 Nassau Street.  It got into a garage.  After ten to fifteen minutes it drove away.  He could not take down its number plate because of the distance he kept and did not see who the driver was.  However they showed the house at Nassau Street to Captain Swanepoel.

[109]   Warrant Officer Wait testified that he was asked by Captain Swanepoel to be on the lookout for a white Jetta and also to keep surveillance on a house at 8 Corbin Street.  He should follow the Jetta when it leaves that house.  He spotted the Jetta coming to the house.  It was there for a short while and left.  He followed it.  It was between 9 am and 11 am.  It took the direction of Sherwood.  He lost it while he was in Corbin Street.  He telephoned Captain Swanepoel and told him.  There was a police helicopter which seemingly spotted where the Jetta was.  It turned out that it was at a house which was twenty to thirty meters from where he was.  At the house he found Captain Erasmus and his team.  He confirmed the evidence of Warrant Officer Bosch in so far as the white Bantam bakkie was followed in all material aspect.

[110]   Nicky Erasmus (Nicky) is the son of Captain Erasmus.  During the relevant period he was employed by the TTF and operated along the Marine Drive preserving abalone.  They provided security to the project of preserving abalone along the Coast.  He was appointed by DAFF as an honorary Marine Conservation Officer.  His appointment card expired on 31 May 2015.  They were appointed in terms of section 9(2) of the Marine Living Resources Act, Act 18 of 1998 as a honorary fishery control officers.  They were given appointment cards.  His understanding of the powers vested in him, he was empowered to enter any vessel, vehicle, aircraft, and premises without a warrant if he had reasonable grounds to believe that the MLRA has been contravened.  He was further allowed to gather evidence in respect thereto without a warrant.  His offices were situated at Cape Recife Light House.  For the first two months of his appointment he together with his colleagues, took photographs and videos of people who were involved in abalone poaching.  They developed data of such people in their system.  He explained the hierarchy of abalone poachers starting from a gardjie up to the kingpin who runs the cartel.  I have already dealt with this before and therefore there is no need for me to repeat it.  Once a person is caught poaching, they would contact members of DAFF who would come and take over the scene together with the arrested persons.  The police would also get involved.  Once the DAFF and the police arrived they would hand over the scene to them together with whatever was impounded.

[111]   Nicky knew Accused 1 very well because they met a long time before whilst he was still a bouncer at one of the local Night Clubs.  They developed a relationship.  He further testified that he also knew Accused 2 from along Marine Drive.  Accused 2 would normally drive Accused 1’s bakkie.  He testified that Accused 1 would suddenly be at a scene when poachers were arrested.  Accused 1 would be enquiring about the diving equipment which the divers used.

[112]   It also transpired that Accused 1 was in communication with Nick on whatsapp.  That period stretched from January 2015 to about April 2016.  He made it a habit that he would go to his office download all the whatsapp messages to his laptop for safe keeping.  He did so because of the nature of the conversations and for record purposes as well.  He testified as follows in this regard:

            “I am in the security doing the law enforcement against poaching, my Lord, and having  conversations with Mr Brown, I thought it was just in my best interest to keep it so I have got it on  record, my Lord.”  (Sic)

[113]   When Accused 1 was arrested he downloaded the whatsapp conversations which he had with him and handed them over to the investigation officer.  He started downloading the conversations from 23 May 2015 to 31 August 2015.  From the transcript, he excised only those which he thought were relevant to the investigation of this matter.  The messages are quite vast and have been captured on record.  I shall not deal with them as they appear for reasons that it is general conversation between Accused 1 and Nicky pertaining to people who were abalone poachers and those people who were owing money to Accused 1, vehicles and the like which he had bought on behalf of some of the abalone poachers.  It further communicates that Accused 1 was loaning boats as well as diving equipment to abalone poachers.  What further transpires from the messages is that Accused 1 intimated to Nicky that he was a police informer.  Nicky confirmed that Accused 1 had given him useful information pertaining to some of the abalone poachers.  He confirmed that all the information which appears on the whatsapp messages had nothing to do with Accused 1 being involved in abalone poaching.  At some stage I enquired from Nicky why would Accused 1 confer with him in such a manner pertaining to the illegal poaching of abalone well knowing that he was involved in law enforcement along the Marine Drive especially with respect to abalone poaching.  He answered that he had no idea why Accused 1 was speaking to him along those terms.  He further testified that he knew that Accused 1 was involved in abalone poaching.  However, at that stage, he did not know that Accused 1 would be arrested and stand trial for abalone poaching.  He testified that he did not know what racketeering, money laundering and anything like that was at the time he conversed with Accused 1.  He did not record the messages in order to implicate Accused 1 because he knew at the time that Accused 1 did not come into contact with abalone.  He testified that at some stage during the conversations he advised Accused 1 to stop living the kind of life and start a family.

[114]   Nicky testified that Accused 1 used or changed his cellphone numbers very frequently.  Testifying in detail about the video which he took at the Noordhoek Ski Boat Club on the Marine Drive, he stated that Accused 2 arrived at the scene driving a white Ford Ranger bakkie which belonged to Accused 1.  At the time he had arrested some of the abalone poachers.  Subsequent to that Accused 1 also arrived at the scene as seen on the video.  He testified that Accused 1 was concerned about the diving gear and remained there until the counting of the abalone and its weighing was done.

[115]   Nicky testified that he was involved in investigating racketeering activity 3 which took placed on the 16 and 17 April 2015 in respect of 56 Heather Garden Square, Forest Hill where JP Van Zyl was arrested.   On that day they were observing a red Kombi which was used to drop off divers along Marine Drive during the day.  The red Kombi at the time was driven by Accused 3.  After dropping the divers he followed the Kombi to Heather Garden Square address where the divers were dropped off by Accused 3.  They remained observing the house throughout the night up until the early hours of the morning when he handed over the observations to Swarts.  On his way home he received a cellphone call from Swarts informing him that a blue Citi Golf was at the house.  As a result of further information he received from Swarts, he made a U-turn and went back to 56 Heather Garden Square house.  On arrival he found JP Van Zyl having been arrested.  When scouting the area he saw a red Nissan bakkie parked along the street a few meters away from the house.  Since he knew the bakkie from his observations he went and took out a router from the distributor in order to immobilise it. 

[116]   Nicky was also involved in the incident at 8 Corbin Street on 28 May 2015.  On that day they received information from Captain Swanepoel about a Jetta vehicle which was conveying abalone.  He and the police followed the Jetta and with the assistance of a police helicopter the Jetta was found at 8 Corbin Street.

[117]   He further made observations of the house of Smuts in respect of activity seven.  He was present when Smuts was arrested at his house at Correctional Services precinct.

[118]   Nicky further testified that in respect of Accused 2’s arrest at Jansenville, he was informed by Captain Swanepoel that he must go to Jansenville because there was information that Accused 2 had been arrested there.  Indeed he went to Jansenville and found that Accused 2 had been arrested.  On 30 September 2015 in respect of activity ten they got information about a Bantam bakkie which was conveying abalone to 5 Creswell Street.  They set up an observation post and he was stationed at Sidwell Pick ‘n Pay or Spar on Commercial Road.  He also had members watching the property across the road.  He got information that the Bantam bakkie was spotted entering the premises at Creswell Road and he drove there.  It was in the evening.  As he turned into Creswell Street he saw the white Bantam bakkie coming out of the premises. He identified the driver as Accused 2.  He was able to see him because his headlights shone directly at the vehicle and he saw Accused 2 driving out of the premises.  He drove into the premises and found one Plaatjies who had already been arrested.  Abalone was found in a wheelbarrow.

[119]   Under cross-examination by Mr Price he admitted that from the whatsapp messages, he selected only those which referred to abalone, the kilograms’ and the weight of the abalone.  As alluded to he stated that Accused 1 never admitted being involved in the abalone poaching himself.  He further confirmed that Accused 1 informed him that he had been an informer for many years informing for Rhino crime intelligence unit.  He further confirmed in the conversations that Accused 1 had provided Captain Swanepoel with information about a commission of certain offences.  He conceded that he had made a mistake when he said in his evidence in chief that he found Accused 2 on arrival at the Noordhoek beach.  He changed to say that as he had given chase to some of the divers in the bush, on his return he saw Accused 2 loading diving equipment.  As he was approaching the place Accused 2 drove off.  He further admitted under cross-examination by Mr Roelofse that he was quite a distance away from Accused 2 to have seen or heard that he was phoning Accused 1 to come to the scene.  However, he insisted that he did speak to Accused 2 even though he can’t recall what they talked about at Noordhoek.

[120]   Nicky was further questioned about the incident at Creswell Street as to how he managed to identify the person who drove out of the property as Accused 2.  He testified that as they were about to pass each other both their windows were rolled down and had eye contact with Accused 2.  He was questioned about why he did not mention that in his evidence in chief.

[121]   Dharmesh Kanty was called in his capacity as the manager of the Law Enforcement Department of MTN network.  He qualified with a B.Com degree from Unisa and a diploma from Cambridge University in London as a fraud specialist.  He received extensive training within the cellphone industry on how the network operates.  He has been with MTN for twenty one years at the time of his testimony.  The nature of his work is that they provide specialist services to Law Enforcement Agencies throughout the country.  He usually receive a section 205 subpoena via courts, which would need to be authorised by a magistrate and a prosecutor.  Once authorised he would access MTN’s systems via a unique username and password.  The system would give him a gateway to all the data that is held within MTN.  He explained how the system worked in three different levels.  He would then insert the IMEI number of the cellphone in question based on the section 205, put in the data range and whatever additional information requested.  Whether it is cellphone records, RICA information or a handset profile.  He would insert that information, submit the query and a few minutes later he would receive a notification that the query has run and it is complete.  Once it is complete, he would access the records and insert the CAS number as well as the technical support unit reference number.  He would encrypt the file and send it back to the technical support unit to process it on to the relevant investigating officers.         

[122]   Kanty testified that in an excel format the investigating officer is able to analyse the data or manipulate it based on whatever he wants to analyse on the data.  In this instance he was asked to provide the court with locations of certain cellphone towers for purposes of understanding some of the issues raised in this matter.  He prepared six maps in relation to his brief.  In the first map, he indicated that Cradock Place would be serviced by the Korsten ATC and when the cellphone moves away, it shall also be connected to the Port Elizabeth Korsten ATC.  He testified that when the cellphone moves away from Cradock Place, it could be picked up by either Marine Drive or UPE building which are far away from it.  The reason, so he testified, is that the coverage is wide because the area is not built up.

[123]   The second map deals with Santorini Townhouse Complex which according to him is serviced by the base stations namely, Petro Port Salford Flats, Kwantu Towers and Victoria Park Sports Club.  He also dealt with base stations from Faraday Street in Uitenhage past Despatch and up to Jansenville.  Those were Torego Flats in Uitenhage, Rus-Oord Farm, Narsh Farm VC then ending up in Jansenville.  He further testified that a tower in Central Business District (CBD) areas covers a 500 meter radius all round, in urban areas 3.5 kilometres and in rural areas 33 kilometres.

[124]   Charmaine Bosch testified that she is a Warrant Officer in the SAPS attached to the Director of Priority Crime Investigations, Serious Organised Crime Unit in Port Elizabeth.  She has twenty six years of experience.  Her portfolio consisted of various functions.  She assisted with project related investigations, does criminal profiling, identify offenders, upkeep of various statistical records on trends and projects, assisting investigating officers with analysis and interpretation of cellphone records.

[125]   She testified that she received training in sophisticated software program analyses notebook.  She utilises software to navigate through large volumes of data such as bank statements and cellphone records to highlight patterns, linkages and association between entities.  The cellphone summarises data in various visual formats that are easy to understand.  The software is accurate and does not interfere with the data integrity.

[126]   On 18 September 2017 she received a request from Captain Swanepoel to assist him with the analysis of cellphone call records.  She received a detailed billing from him that was obtained via section 205 applications in electronic format.  She extracted the following numbers from the data and compiled her report based on them:

·         078 … – billing period – 1/03/2015 until 8/11/2015.

·         073 … – billing period – 1/03/2015 until 22/03/2015.

·         071 … – billing period – 1/04/2015 until 26/08/2015.

·         063 … – billing period –  1/07/2015 until 1/06/2016

·         073 … – billing period – 1/04/2015 until 31/08/2015

·          

For purposes of this judgment it should be noted that the number which ends with 0481 is said to belong to Accused 1, ending 0576 belongs to Renier Ellerbeck, ending 22000 belongs to Edgar Clulow Junior, ending 2322 also belongs to Accused 1, ending 3270 belongs to Reinett Ellerbeck.  She was also supplied with the following number 079… which it was alleged belonged to Tanya who is the fiancé of Accused 1.

[127]   Her first task was to determine and highlight the most frequent numbers that phoned each other during the said period.  Further for purposes of this judgment I shall refer to people instead of the cell numbers.  During the period she discovered that Accused 1 phoned Edgar 755 times.  Edgar phoned Accused 1, 313 times.  In total they phoned each other 2068 times during the period aforementioned.  Secondly, Tanya phoned Accused 1, 609 times and Accused 1 phoned her 59 times totalling 678 times during the period.  Accused 1 from the number ending 2322 phoned Junior 186 times.  Accused 1 from the number 2322 phoned Tanya 235 times and Tanya to Accused 1, 18 times.  In total they phoned each other 353 times during the said period.

[128]   She found that on 22 March 2015 between the period 11:16 and 15:54 there were eight instances of communication between Tanya and Accused 1.  The tower which was activated during those calls is the Korsten ATC base station.  She further testified that at 12:16 Tanya received a call from Accused 1 whilst receiving reception from the UPE building based station in Summerstrand.  That is approximately 13.17 kilometres away from Korsten ATC based station.  At the time Accused 1 received reception from Kabega CCBQEBERA CC based station in Walmer.  At 12:39 Tanya called Accused 1 whilst receiving reception from the Marine Drive base station.  The distance between the Marine Drive base station and UPE building base station is approximately 8.99 kilometres. At 12:15 Tanya phoned Accused 1 whilst receiving reception from Charlo base station.  No information is displayed on the detailed billing of the number of Accused 1.

[129]   At 13:44 and 13:48 Tanya received reception from the Korsten ATC base station and Accused 1 activated the Petro Port base station situated in PE Harbour at 13:35 and 14:04.

[130]   At 15:38 Tanya received a call from Accused 1 whilst receiving reception from Marine towers Summerstrand base station.  At the time Accused 1 activated the UPE building base station.  The distance between Petro Bay station and UPE building is 5.57 kilometres.

[131]   At 15:52, 15:53 and 15:54 there was an exchange of telephone calls between Accused 1 and Tanya both numbers activated the Marine Drive base station.

[132]   At 15:56 Accused 1 activated the UPE base station at 16:03, the Cape Marine Flats based station in Summerstrand from 16:07, up until 16:19, and at 16:27 the Ibayi Town Council Building.  Using a GPS co-ordinated on Google F she was able to come up with the following distances, Petro Port base station to Santorini is 1.07 kilometres, Kwantu towers base station to Santorini is 600 meters, Salford Flats base station to Santorini is 900 meters.

[133]   In conclusion, according to the detailed billing of 22 March 2015 between 11 and 15:30 Tanya did not activate the base station in Algoa Park.  The closest tower she activated was the Korsten ATC base station which is approximately 1.5 kilometres away from Algoa Park.  Again Tanya received reception from the Marine Drive base station on two occasions from 15:34 until 15:39 and from 15:52 until 15:54.

[134]   On the same date Accused 1 activated the Marine Drive base station from 15:51 until 15:54.

[135]   She was further tasked to establish whether there was any telephonic communication between Accused 1 and Junior.  If so to highlight the number of communication that was between them for the period from 04:00 until 07:30 am.  Furthermore, she was asked to check if there is any evidence in the detailed billing to suggest that their cellphones activated the base stations in Forest Hill and North End area during the above time period and to highlight and compare the base stations the two numbers activated during that period.

[136]   She concluded that on 17 April 2015 between 04:58 and 07:30 Junior and Accused 1 had 11 instances of communication between them.

[137]   On the same date at 04:58 and 04:59 Junior received a phone call from Accused 1 whilst receiving reception from Laerskool Môrewag 2 base station situated in Kensington.  At the time Accused 1 received reception from Kwantu towers base station and Salford Flats base station.

[138]   At 05:28 Junior received another incoming call from Accused 1 while receiving reception from Forest Hill EEAS1 base station.  At the time Accused 1 activated Kwantu towers base station.   The distance between Laerskool Môrewag and Forest Hill EEAS1 base station is approximately 6.08 kilometres.  An hour later at 06:28 Junior received reception from Mopanie EAS3 base station situated at Forest Hill.  At the same time Accused 1 received a text message from Junior and activated Kwantu tower base station.  The distance between Mopanie EAS3 and Forest Hill base stations is 900 meters.

[139]   At 06:28 and 06:29 Junior activated Forest Hill EAS1 base station.  At the time Accused 1 received two more text messages from Junior still activating Kwantu base station.  At 06:37, 06:49 and 06:41 Junior received three incoming calls from Accused 1 activating the Mopani ES base station.  At 06:37 Accused 1 activated Kwantu tower base station, at 06:49 the petro base station and at 06:51 Victoria Parks Sport Club base station.  Victoria Park Sports base station is 1.71 kilometres away from Mopani EAS3 base station and 1.07 kilometres away from Santorinie Townhouse complex.  At 07:01 and 07:09 Accused 1 received reception from Trust North End base station.  At 07:21 Junior received an incoming call from Accused 1 whilst receiving reception from North End Lake EAS2 base station which is situated 1 kilometre away from Laerskool Môrewag base station.  At the time Accused 1 activated Salford Flats base station.

[140]   She concluded that on 17 April 2015 between the time period 04:00 and 07:30 Junior received reception from two base stations in Forest Hill area from 05:28 until 06:52.  At 07:20 he received reception from a base station situated in North End.  For the same time period Accused 1 did not register base stations in Forest Hill area.  At 07:01 and 07:09 Accused 1 received reception from Trust Bank North End base station.

[141]   She was further tasked to check communication between Accused 1’s number which ends with 322 and that of Renier Ellerbeck on 18 August 2015.  She concluded that on the day Accused 1 received reception from base stations in the Port Elizabeth area until 12:90.  From 12:35 until 13:23 he received reception from two base stations situated in Uitenhage area.  From 13:40 onward he received reception from base station base in the Port Elizabeth area.

[142]   For the same date the detailed billing of Ellerbeck’s number showed that he activated base stations in Uitenhage area during the early hours of the morning and late afternoon from 09:01 until 12:18 he activated towers in Jansenville area.

[143]   Warrant Officer Andre Ferreira is to the Prevention Task Team (PTT) working on drugs and housebreaking in the cluster of Graaff-Reinet and the whole area of Jansenville.  On 16 August 2015 he was on duty with Warrant Officer Barend Smit.  They were on the National Road next to Noorveld farmstall.  They had information about an unrelated matter and were on the lookout for a Skyline with drugs.  A white Mazda drifter drove past them from the direction of Port Elizabeth towards Graaff-Reinet.  It was traveling slowly up an incline.  They noticed that there was something watery dripping from the back of the bakkie.  They followed it because he became suspicious.  

[144]   He stopped the bakkie.  He asked for a driving licence.  The driver was Accused 2.  He said he did not have it.  He asked him twice about what was at the back of the bakkie.  Accused 2 did not respond.  He then said that he was going to search the motor vehicle.  He warned him that anything unlawful found would be used in evidence in court against him.  Accused 2 kept quiet.  He opened the plastic cover and found plastic bags full of abalone.  He arrested Accused 2 for illegal possession of abalone. He advised him of his constitutional rights.  Warrant Officer Smit searched him and found a cellphone.  He contacted members from the DAFF.  They arrived.  Photographs i.e. Exhibit “W” were taken by members of the Local Criminal Record Centre (LCRC).  Captain Swanepoel also arrived at the police station.

[145]   Warrant Officer Ferreira conceded under cross-examination that seeing running water at the back of the bakkie does not create a reasonable suspicion that a crime had been committed.  He further admitted that Accused 2 did not give him permission to search the motor vehicle.  He confirmed that he had ample time to have secured a search warrant.  He testified that at that stage he suspected there was definitely something at the back of the bakkie and did not need a search warrant.

[146]   Warrant Officer Johannes Smit confirmed that he was at work with Warrant Officer Ferreira when Accused 2 was arrested.  He searched him and found a Nokia cellphone which he identified in Exhibit “W”.

[147]   Martin Phillip Kriel was warned in terms of section 204 of the CPA.  He is the owner of Supreme Truck and Trailers selling automotive spare parts and trailers.  He was introduced to Accused 1 by Mr Lochner in 2012/2013.  In September 2015 Lochner requested him to purchase a Ferrari on behalf of Accused 1 at Dadas Motorland in Fourways, Gauteng.  He received an amount of R500 000.00 plus R180 000.00 in cash from Accused 1 to purchase the motor vehicle.  He financed it in his name through Alphera BMW Finance at a monthly repayment of between R33000.00 and R34000.00.

[148]   The Ferrari was delivered at his workshop.  Accused 1 came and drove it away.  He drove it for a month.  It would be parked at the backyard of his workshop each time Accused 1 did not use it.  He saw an opportunity to use the money because at the time his business had cash flow problems.  He sold the car at a loss after SARS did his lifestyle audit.

[149]   Mr Theo Wernich Lochner testified that he does debt collection for various major banks and his work is mostly in the Transkei area of the Eastern Cape.  He has a fleet of cars and has a passion for fast and expensive motor vehicles.  He knew Accused 1.  He loaned a BMW and a Ford Ranger with registration letters and numbers HFY 607 EC.  Accused 1 was paying him R17 000.00 monthly.  After sometime Accused 1 returned the BMW.  Accused 1 spotted the Mazda bakkie parked in his yard.  He was interested in it.  He offered to buy it.  He identified it as the bakkie that was impounded at Jansenville driven by Accused 2.  Accused 1 paid him between R40 000.00 and R42 000.00.  Accused 1 gave him the identity documents of a person to transfer the motor vehicle to.  Accused 1 took the motor vehicle with him.  He denied that he arranged Mr Kriel to purchase a Ferrari for Accused 1.  He only referred Accused 1 to Mr Kriel because the former was interested in a M4 BMW which belonged to Mr Kriel.

[150]   Mr Yusuf Shaik is a branch manager of Dadas Motorland in Fourways Gauteng.  He sold the Ferrari to Mr Martin Phillip Kriel and it was delivered in Port Elizabeth.  He sold it for R1 879 980.00 and the instalment was R39 000.00.

[151]   He, on a certain day, he received a call from Mr Kriel to say that there is a gentleman who would come and look at the vehicle on his behalf.  He suspected the person to be Accused 1.  Accused 1 said to him Mr Kriel requested him to come and look at the Ferrari.

[152]   Mr Le Roux with the intention to prove what Accused 1 said in his bail application called Magistrate Ms Este Karen Petzer who presided over the bail application.  Accused 1 was represented by Mr Roelofse and Accused 2 by Mr de Beer at the bail application.  Ms Petzer testified that they normally deal with hundreds of new cases in court 27.  There was a developed Roneo form which was produced.  She, as a norm, read it to every accused person appearing in her court for the first time.  She had no independent recollection whether she read the contents of this form to Accused 1 and Accused 2 when they appeared before her on 30 June 2016.  The Roneo form reads:

“You are entitled to be represented by an attorney of your choice for whom you will be liable to reimburse from your own funds.  If you cannot afford a private legal representative, you may apply to the Legal Aid Board for assistance.  If your application is successful, an independent legal representative will be appointed for you by the Legal Aid Board at no cost.  Should you not wish to use legal representation, you may conduct your own defence.  You and your legal representation are entitled to the contents of the docket once the State has indicated that the matter is ready to proceed to trial and if the State is opposing bail, you have a right to a formal bail application.  Do you understand?”

[153]   Having read it, she would proceed to explain to any accused the provisions of section 60(11B) (a) (c) and (d) of the CPA.  I shall not extensively deal with her evidence because the charge sheet in respect of the bail proceedings was not admitted.

[154]   As stated before, the State called several 204 witnesses, chief amongst them being Renier Ellerbeck, Edgar Clulow, Edgar Clulow Junior and Kriel.  I shall now deal with their evidence.

[155]  Renier Ellerbeck testified that Accused 2 is his brother in-law.  He is married to Accused 2’ sister.  Accused 2’ nickname is Boesman.  He knew Accused 1 since 2002 when he came to look for Accused 2 at his wife’s home.  Accused 2 was riding a motor cycle.  He gave Renier Ellerbeck a ride up the street.  Since that day they became acquaintances.

[156]   Renier Ellerbeck started working for a company called Unicor and thereafter for Dorbyl.  He was staying on a farm in Greenbushes with his wife and her parents.  Accused 2 was also living there with his girlfriend.  He needed extra money to supplement his salary.  At that time Accused 2 was working together with Accused 1 poaching abalone.  Accused 2 approached him and suggested that he should work with him and Accused 1 by driving the abalone divers to the sea and back.  Accused 1 would pay him for that.  He agreed and started to transport the divers back and forth to the sea.  Later he was requested to do a “block watch” which meant that he would sit at a spot and be on the lookout for the police so as to alert Accused 2 who in turn would convey that to Accused 1.  He would receive R500.00 per day from Accused 2.  Accused 2 got the money from Accused 1.

[157]   After some time he was allocated to transport abalone from the sea.  He would be phoned by either Accused 1 or Accused 2 to fetch it from Marine Drive, Noordhoek, Schoenmakerskop and Sardinia Bay.  Renier Ellerbeck would take the abalone to his house where it would be weighed.  He would be paid by Accused 2 at R300.00 per bag.  The bag would be a green waist bag which was used by divers to put abalone during harvesting.  They varied from 30kg to 50kg.  The gardjies would bring the bags and put them in the boot of his car.

[158]   Each bag would be marked with a diver’s mark.  At the weigh house, the abalone would be sorted in terms of sizes.  A gardjie would be present representing his driver.  At times there would be one diver present.  Accused 2 would record the kilograms of each bag and convey the information to Accused 1 for payment to be processed.  He testified that he lived in Algoa Park, Second Avenue in 2015.

[159]   Renier Ellerbeck testified that on 22 March 2015 (first activity), he received a call from Accused 1 to go and fetch bags of abalone from the sea.  He complied and brought the six bags to the house in his white Opel Kadett.  Accused 2 told him to use the route going past Walmer Location from Schoenmakerskop to his house with abalone.  On arrival at his house, Accused 2 informed him telephonically that Cheron and Shanton shall come to weigh the abalone.  Indeed, they arrived and weighed it.  They were later joined by a gardgie named Johantjie to go fetch bags he had forgotten in the morning.  He weighed thereafter a driver arrived and took the bags to the store house.  Later on he received another cellphone call from Accused 1 to say there were two bags which were left behind.  He instructed him to fetch the two bags from Noordhoek.  He drove down to fetch the bags.  While on Marine Drive, next to a beacon in Summerstand, Accused 1 phoned to enquire where he was.  He informed Accused 1 and further told him he was uncomfortable to go fetch the bags because there were two police vans on the Marine Drive.  Accused 1 told him not to bother because he would drive up Schoenmakerskop.  He complied.  When at Noordhoek he came across Accused 1 talking to a person in a white bakkie.  Accused 1 told him where to go.  At the time they were in their respective motor vehicle parked next to each other along the road.  Two gardjies, as per Accused 1’s instructions got into the Kadett to go and show him where the bags were.  About 300 metres away from where Accused 1 was, the gardjies told him to stop.  They alighted opened the boot and placed the bags in the boot and closed it.  At that time he received a cellphone call from Accused 1 saying “drive away, drive away, boere” as interpreted,  Boere is an Afrikaans word for the police.  He drove towards Schoenmakerskop.  Accused 1 came in between his car and that of the police giving the opportunity to drive away thus preventing the police van from overtaking him.  The police were driving an unmarked bakkie with a blue light on its grill.  He saw a dirt road and followed it to a dead end.  He alighted and ran away.  Accused 1 called him and said he must not say anything to the police and must throw his cellphone away.  He could not do so because the police officer, who turned out to be, Sergeant Shaw was upon him.  He merely conveyed to Accused 1 that they caught him.  Sergeant Shaw was pointing a firearm towards him.  He was half away in the bush at the time.  He called him to the car.  The boot was opened and the two bags containing abalone were visible.  Other police arrived and he was arrested and taken to Humewood Police Station.  The two gardtjies ran away on hearing Accused 1 telling him to drive away.  They did not get into the motor vehicle.

[160]   At the police station, he phoned his wife who told him she was already aware that he had been arrested.  Mr Malan De Beer, an attorney arrived at the police station.  He advised him not to make a statement.  He brought him his jacket and medication.

[161]   He appeared in court on 25 March 2015.  Bail of R2000.00 was paid.  Accused 2 came to fetch him in Accused 1’s red Volkswagen Kombi which he used to fill in gas tanks for the divers.  On the morning of that day, he saw Captain Swanepoel and asked for his cellphone number.  After he was released, he phoned him and asked to meet up with him.  He went to his offices in Newton Park.  He asked him whether he could trust him.  Captain Swanepoel said he must stand up for his case.  Later he discussed his intentions of disclosing the truth to Captain Swanepoel.  He visited Captain Swanepoel and told him what he knew and the role he played in the pouching of abalone.  Captain Swanepoel told him that he would first confer with the Public Prosecutor Mr Le Roux about whether he could be used as a witness against the accused.

[162]   After his arrest, Accused 1 told him to stop transporting abalone.  Accused 1 told him to use his house as a weigh house.  The weighing carried on in his house.  Abalone would be either brought by Accused 2 or drivers to his house.  He communicated all that information to Captain Swanepoel.  He and Captain Swanepoel decided to record the events at his place.  He was given a portable video recorder which he operated.  He managed to record the events of 6, 26 and 29 April 2015.  He could not on other occasions because they would arrive unexpectedly and he would not have had time to set the video recorder.

[163]   He testified that Accused 3, Edgar Junior interchangeably came to fetch abalone to a store house.  He was able to take down the registration letters and numbers of two vehicles and gave them to Captain Swanepoel.  He knew Accused 3 because he once worked with him at Hitech Automotive.  The three video recordings were played starting with the one on 26 April 2015 which starts at 21h10.  His testimony based on the recording was that it depicted him, his wife, Andre Van Rensburg and plastic bags lying on the floor containing abalone.  Andre Van Rensburg is seen filing up a bag with abalone.  Renier Ellerbeck said each bag containing abalone should weigh a certain weight.  He identified Chris Koen as one of the gardjies and a gentleman he did not recall.  A waist bag could be seen and Renier Ellerback said the buckle bore the mark of the diver.  He further identified a person by the name Renier who would call Accused 1 and tell him the weight of each diver and also the car to pick up the abalone.  He testified that abalone must be deshelled, cleaned and washed before it is weighed.

[164]   On 26 April 2015, the recording started at 07h26.  A motor vehicle is seen.  Renier Ellerbeck identifies Edgar and another gardjie off-loading bags containing abalone with Johantjie Cleroo Smith.  He testified that the last two were present when he was arrested on 22 March 2015.  They are the two gardjies who managed to escape.  He identified them in the video as they were busy sorting out the abalone.  He alleged that the abalone was brought to his home by Accused 2.  It was loaded in the motor vehicle and the driver drove off.  He immediately called Captain Swanepoel and gave him the information.

[165]   Regarding the recording of 29 April 2015 at 07h46, he identified Shaw, Johantjie and Junior cleaning and weighing abalone in his bathroom.  He testified that the abalone was brought to his house by Accused 2.  He relayed the information to Captain Swanepoel immediately after they left his yard.  After the incident he learnt from Captain Swanepoel that Junior was arrested.  Accused 2 came to him and told him to find a place to rent which shall be used as a store house.  He found a house at 11 McClear Street in Uitenhage.  Two days after he had moved in, Accused 2 and Edgar arrived in the latter’s Bantam bakkie bringing a Boerboel dog.  Both viewed the house and approved it to be fine for purposes of storing abalone.

[166]   At that juncture, Accused 1 and Accused 2 instructed him to start transporting abalone from Port Alfred.  He informed Captain Swanepoel of that arrangement.  Captain Swanepoel provided him with a motor vehicle fitted with a tracking device.  He would deliver the abalone at JP Smuts house at the Correctional Services premises.  He advised Captain Swanepoel accordingly.  He testified that during the first week of July 2015 he was phoned by Accused 2 to fetch two bags of abalone from Marine Drive to JP Smuts’s house.  He complied.  When he arrived at JP Smuts’s house, he met Accused 1 and Accused 2.  Accused 1 drove away from the house.  He, his wife and Accused 2 drove to Kragga Kamma.  Accused 2 dropped them at the garage because he did not want them to see where the store house was.  After about ten minutes, he came back and picked them up.  On the way Accused 2 called Accused 1 and made a report about abalone.

[167]   He suspected that there was abalone off-loaded at JP Smuts’s house.  He saw Junior driving a red Nissan bakkie.  On 4 August 2015, the day when Smuts was arrested, he informed Captain Swanepoel of what he saw Junior do.  It was at about 9am.  After the arrest of JP Smuts, he stopped transporting abalone for Accused 1 and Accused 2 because they did not trust him anymore.

[168]   He identified the white Mazda bakkie with registration WNY 887 GP (Exhibit “W”) found with abalone at Jansenville being driven by Accused 2 as the one which Accused 2 arrived at his house driving a week before he was arrested.  Accused 2 wanted money for petrol.  Renier Ellerbeck’s wife gave him R50.00 for petrol.  He later learnt that Accused 2 had been arrested in Jansenville.  He attended court at Jansenville on the day Accused 2 was granted bail.  He was represented by an attorney, Ryno Scholtz.  Bail was allowed at R10 000.00.  He and Accused 2 did not have money.

[169]   Renier Ellerbeck’s wife telephoned Accused 1 and told him the bail amount that was required.  Mr Ryno Scholtz informed him to meet Accused 1 on the way to Port Elizabeth as he cannot drive all the way to Jansenville.  He complied.  He met Accused 1 about thirty kilometres outside Uitenhage, waiting for him on the side of the road.  Accused 1 gave him R10 000.00.  He drove back to pay bail for Accused 2.  His wife paid the money at the clerk of the court.  After a while, Accused 2 told him that the case had been withdrawn.  His wife claimed back the bail money.  She was given a cheque which they deposited at Standard Bank.  Accused 1 took R5000.00 and said the other R5000.00 must be shared between Accused 2 and him.  He never received his share from Accused 2.

[170]   He testified under cross-examination that Captain Swanepoel explained to him the import of being a section 204 witness.  That was a week after he made up his mind to testify against the accused.  He confirmed that the bail receipt was in his wife’s name as the depositor.  He did not know whether the original bail receipt was given to the attorney Mr Scholtz to keep as security for his fees.  Mr Price stated at that stage of the proceedings that the defence would call Mr Scholtz to confirm that.  But that was not to be because he was never called.  Renier Ellerbeck testified that his wife claimed back the R10 000.00 after the charges were withdrawn.  He did not return the money to Accused 1 but Accused 2 came to fetch it.  R5000.00 was to be given to Accused 1 by Accused 2 and the latter was to receive R2500.00 and him the remaining R2500.00 for his efforts in the case.  This version of Renier Ellerbeck was disputed by Mr Price in the following words.

            “Let’s just move off this because what you are talking now is a leap of lies and I am going to call a             number of witnesses to prove that you are not telling the truth.  You took the entire R10 000.00     for yourself and these people got nothing Mr Ellerbeck, is that not the truth. Answer that is a lie.”

I hasten to mention that the promise of calling a number of witnesses in this regard never came to fruition.

[171]   Renier Ellerbeck confirmed that he took R3000.00 from a person for leased premises under false pretences.  He testified that he subsequently refunded him.  He stated that in 2014 and 2015 he and his wife were employed by Dr Reddy at a combined salary of R16 000.00 per month.  They were expelled because there was a rumour that they were planning to rob them.  He however conceded, though on different grounds, that there was a plan between him, Accused 1 and others to rob Dr Reddy.  He further testified that it is Accused 1 who informed Dr Reddy about the plan to rob him/her.  He surmised that Accused 1 sold him out to Dr Reddy because Accused 1 accused him of betraying Jannie Smuts.  Even in this instance, Mr Price emphasised that he was to call Dr Reddy to testify but that never occurred.

[172]   In response to a question by Mr Price, that if he, (Renier Ellerbeck) had been told that he was unlawfully arrested and charged, would he have turned State witness, he responded in the negative.  He further stated that his arrest on 25 March 2015 at Marine Drive was not unlawful because he was found in possession of abalone by the police.  He testified that it is him who volunteered to give the police, especially Captain Swanepoel, the information about abalone smuggling.  He was not asked to give information whilst the case was still pending.  In fact it is him who requested the police and the State prosecutor not to withdraw the charges against him because “if the charges are withdrawn now then they are going to become suspicious . . . . (b)ecause questions would be asked by Boesman and Julian Brown as to how it is possible for the case to be withdrawn whereas you were arrested with abalone in your possession”. (Sic)  Boesman and Julian are Accused 2 and Accused 1 respectively.  He stated that the reason for him to testify for the State, is because “I saw a gap and I seized that opportunity to make use of that gap”.

[173]   Renier Ellerbeck was cross-examined at length about who phoned him to go and fetch the bags of abalone on 22 March 2015.  In his evidence in chief he said it was Accused 1 who told him to go to Marine Drive to fetch the bags.  It turned out in his written statement he said it was Accused 2 who told him.  In fact it is reflected as follows in his statement:

            “. . .  and Julian phoned me to enquire where I was.  I told him I am at home.  Soon thereafter       Boesman phoned me and told me to go to Noordhoek area to collect bags of abalone”.

In his viva voce evidence he said, “Julian also phoned me that day to fetch the bags after Boesman also made a call to me telling me that I must go and fetch the bags”.  He testified that he fetched six bags and yet in his statement he said there were seven bags.

[174]   He confirmed the evidence of Sergeant Shaw in that before his arrest he stopped next to a Ford Ranger driven by Accused 1 and a Corsa bakkie driven by Shawn Smit.  He did not engage in any conversation with Shawn Smit but he spoke to Accused 1 as he had stopped next to him.  He further confirmed the evidence of Captain Swanepoel that he asked Sergeant Shaw who their commander was.  It was at the time when he, Renier Ellerbeck had attended court on his first appearance.  His attorney at the time was Mr De Beer.  He had exercised his right to remain silent up to that stage.  He confirmed that he omitted to mention in his statement that he asked Sergeant Shaw about that.

[175]   He testified that when Sergeant Shaw arrested him the boot of the car was opened and upon being asked what was in the boot he responded by saying it was abalone.  He was quizzed about Sergeant Shaw who testified that Renier Ellerbeck said “Meneer kan mos sien”, and never mentioned that it was abalone.  He confirmed that he did say so to Sergeant Shaw.

[176]   It was put to Renier Ellerbeck that when Accused 2’ mother passed on, Accused 1 gave him an amount of R5000.00 to fetch the ashes.  He denied that.  It was put to him thus:

Question:       “Both his witnesses and others will testify you were given R5000.00 and those ashesremained at the funeral home, you pocketed that money.

Answer:         No.     (Emphasis Added)

[177]   It was put to him that he had stolen SASSA money from the card of Flip Erasmus.  Renier Ellerbeck denied this.  It was promised that “(w)e will call these witnesses at the appropriate stage”.  No witness was called even in this regard.  Renier Ellerbeck admitted that in the early 1990 or early 2000 he was expelled for theft of safety boots and safety clothing from a company called Dummy Brothers.  It was highlighted to him that his evidence contradicted that of Sergeant Swanepoel regarding how and where they met after his arrest.  He testified that he did not ask for Captain Swanepoel to visit him in the court cells instead he met him by chance.  He did not meet him at his cell but he was where photographs are taken.  Upon meeting Captain Swanepoel, the latter asked, who the owner of the abalone was, did not answer.  He further told him that he was the investigating officer of that case.  When Captain Swanepoel was leaving, he asked for Captain Swanepoel’s cellphone number.  He wanted to have his cellphone number because he was the investigating officer of his case.  He further wanted to talk to him about his car which had been impounded.  He did not want to lose his car.  He was still paying towards its purchase price.

[178]   Renier Ellerbeck testified that he was not scared of going to prison.  He knew, from other abalone poachers that he would either get a fine or a suspended sentence.  He turned to be a State witness because he was twice left in a lurch by Accused 1 and Accused 2.  They abandoned him.  In one instance, equipment used to cook and prepare abalone was found and confiscated by the police at a house he was renting at Bluewater Bay.  The evening after he met Captain Swanepoel in his office, he discussed with his wife the option of “telling it all” to him.  They agreed.  The following day, he telephoned Captain Swanepoel and told him that he wanted to tell all he knew about abalone and his involvement.

[179]   Renier Ellerbeck denied that he was employed by an abalone smuggler called Diffie.  The person he worked for was Accused 1.  At times, he would be paid by Accused 1 personally.

[180]   When cross-examined by Mr Roelofse, for Accused 2 and Accused 3, Renier Ellerbeck confirmed that before his arrest he knew that if arrested and convicted, he would have a criminal record.  He confirmed he knew at the time that the registered owner of the motor vehicle could claim it back if he was able to prove that he (the owner) was not aware that the motor vehicle was to be used to commit an offence.  Renier Ellerbeck testified that in spite such prior knowledge, it became a concern to him after his arrest.  He admitted that he had been involved in the illegal abalone business for a number of years but he was never caught and charged for it.

[181]   About the robbery of Dr Reddy, Renier Ellerbeck testified that one day, Accused 2 overheard his wife saying she saw a shoebox full of American Dollars.  Accused 2 suggested that they should rob Dr Reddy.  A plan was hatched with Accused 1.  He went through the plan, which I need not repeat for purposes of this judgment.  He stated that one of the reasons he did not trust that Accused 1 would assist him is that while he was in police cells the latter shouted at him saying Renier Ellerebeck was arrested because of his stupidity.

[182]   Renier Ellerbeck confirmed he had a previous conviction of theft that was about 15 years old.  He testified that he did not inform the court about that because he was never asked and it is his attorney who addressed the court on his behalf during bail proceedings.  He further did not inform Captain Swanepoel nor Sergeant Shaw because they never asked him about it.  Renier Ellerbeck stated that he became a registered police informer after he had given information to Captain Swanepoel and had received between R60 000.00 and R70 000.00 for the period.

[183]   Mr Johannes Christoffel Smuts (Smuts) like Mr Renier Ellerbeck, was warned in terms of the provisions of section 204 of the CPA.  He testified that during March 2015 to April 2016 he was employed by the Department of Correctional Services and was assigned a State house at the Correctional Services premises in North End Prison.  He knew Edgar because they worked together as Warders in the same prison. He testified he was approached by Edgar to allow abalone to be weighed at his house.  That would be a quick way of making money, so he convinced him.  He agreed and his house was used as a weigh house.  It became a routine that a white and red Golf would drop bags of abalone at his house.  Accused 2 would come with a scale and weigh the abalone in his presence.  It would be packed in bags.  Junior would come in a Nissan bakkie and take the bags away.

[184]   After 2 to 3 weeks, Accused 2 phoned and advised him that abalone was on its way for storing because their store house was discovered by the police.  Indeed abalone was brought.  The following morning Accused 2 brought two deep freezers. Abalone would be collected, packed and kept in his house until it weighed a ton or more.  Accused 1 phoned him one day and told him to prepare it in bags.  He complied and placed the bags outside.  Accused 2 arrived in a bakkie.  He assisted him to load the abalone.  Accused 2 left for Johannesburg. 

[185]   He testified that on 4 August 2015 he received a phone call from Accused 1 asking if his house was not under police surveillance as he heard.  He denied knowledge of that.  After a short while Accused 2 phoned and advised him that he must move the abalone from the house to the back yard.  As he was busy doing so, police arrived.  Among them was Captain Swanepoel, Sergeant Shaw, Mr Mostert from the DAFF and Captain Erasmus.  They gave him a search warrant.  At that juncture his attorney Mr Danie Gouws arrived.  A search was conducted in his presence.  Abalone was found and he was arrested.  Attorney Malan De Beer, who worked with Mr Gouws, arrived when they were weighing abalone at the police station.  He brought him a cool drink and food.  Mr De Beer gave him a cellphone and told him to phone Accused 1.  He did.  Accused 1 told him not to panic he shall pay his bail.  He further told him that he knew who gave the information out to the police.  Indeed bail was set out at R10 000.00 which Accused 1 paid.

[186]   At some stage there was an issue about how the abalone was packed.  Accused 1 arrived at his house and instructed that it must be weighed again by Dwayne.  He was remunerated at the rate of R10.00 per kilogram for storing.  Initially he would get the money from Accused 2 but at times from Accused 1 personally on about four occasions.  The amount paid was about R35 000.00 for plus minus seven loads of abalone.

[187]   After his arrest he informed his attorney Mr De Beer that he wishes to be a witness for the State.  Seemingly, Mr De Beer did not pursue that until he came across Mr Le Roux who in turn referred him to a Legal Aid attorney Mr Van Der Spuy.  The latter obtained a statement from him which was subsequently commissioned and taken by Captain Swanepoel.

[188]   Smuts testified that he met with Accused 1 when he came to inspect his house for weighing purposes and to meet with him.  He also knows accused 2 because he had a love relationship with his sister Maritza.  He also knew Renier Ellerback and his wife because they used to drop abalone at his house in July 2015 or there about. He knew Renier Ellerbeck since the year 2000 as an acquaintance.  He knew he was involved in abalone poaching because Accused 2 was working for an abalone Kingpin.

[189]   Mr Price under cross-examination, put to Smuts that the search warrant was unlawful and asked if he would have consented to the search and handed over his cellphone had he known that.  He said he would not have consented to the search.  However, he testified that even if the charges were not withdrawn against him, he would have turned a State witness anyway because he had lost many things because of Accused 1.  He lost his job, house and had to sell his furniture because of him.

[190]   Smuts conceded that he was involved in the abalone poaching even before he met and worked for Accused 1.  He confirmed that instead of facing life imprisonment he was prepared to testify against the Accused.

[191]   Smuts said he met Captain Swanepoel for the first time after he was arrested.  Captain Swanepoel and Captain Eksteen told him that he was going to be imprisoned for a long time.  He testified that, Pikkie, Seun and Renier Ellerbeck used to deliver abalone at his house.  Accused 1 used to drive in a white BMW and a white Double Cab and would park in front of his house.  He confirmed that he sold his car to Accused 2 before his arrest.  But Accused 2 did not pay for it.  It was put to him that Accused 2 alleged that Smuts had a serious gambling problem to which he agreed.  He denied the allegation that the reason for cellphone calls between him and Accused 1 was for purposes of borrowing money.  He denied further that Accused 1 went to his house twice to enquire about his money.  It was put to him that Mr De Beer would confirm that Accused 1 borrowed Smuts money for bail.  He denied that.  I must mention that Mr De Beer was never called to confirm this aspect of the case as promised by Mr Price.

[192]   Smuts testified that he wanted to be a State witness because he heard that the police were investigating Accused 1.  He realised further that Mr Gouws was giving much attention to Accused 1 than to his case.  So after his second appearance in court, he went to Mr Gouw’s office and told him that he wanted to turn to a State witness.  He testified that he only saw Accused 3 once at a nightclub.  He never spoke to him.  He remained adamant that Accused 2 and Accused 1 were involved in abalone pouching. 

[193]   Edgar Gordon Clulow (Edgar) was also warned in terms of section 204 of The CPA.  He testified that his son Junior was arrested by the police at his house in Cradock.  He approached Captain Swanepoel and told him that he wanted to give a statement to the police assisting them in their investigation.  He informed Captain Swanepoel what he knew about abalone poaching.  He did so out of his own volition as he was not an accused nor a suspect.  A statement was obtained from him by Captain Swanepoel.

[194]   Edgar testified that he started working for the Department of Correctional Services in 1989 and resigned in 2014.  He started diving for abalone in the 1990’s.  He was initially furnished with permits by the DAFF but he exceeded his quota.  Later on permits were withdrawn and he then harvested abalone illegally.

[195]   His sons including Junior were involved in illegal diving.  Rynardt Jonck was his nephew and he drowned at sea while he was illegally harvesting abalone.  He knew Accused 2 because he is his wife’s cousin.  He knew Accused 1.  He met Accused 1 at 7 Spencer Road, Kensington when he came to pay Rynardt Jonck who was diving for him.  Rynardt was staying with him at the time.  Rynardt Jonck introduced Accused 1 to him.  At the time he was building a boundary wall in front of his house.  Accused 1 became interested and asked him to build for his grandmother at Lea Place, Humewood.  He agreed and started to work there with Junior.  Thereafter, Accused 1 offered them other building jobs paying him R1000.00 per week.  Accused 1 asked why Junior cannot work with him in the abalone pouching.  He told him to speak to him as he was a grown-up who should decide for himself.

[196]   Accused 1 employed and organised a house for Junior.  After a while he received a phone call from Accused 1 advising him that Junior had been arrested.  He informed Accused 1 that he would not be able to assist because he did not have money for an attorney nor to pay bail.  Accused 1 promised to organise those for Junior.  At a later stage he started to transport Rynardt and other divers to the sea and back.  They paid him for that.

[197]   Edgar testified that during that period he interacted with Renier Ellerbeck and Accused 2.  Renier Ellerbeck relocated to Uitenhage.  Accused 1 sent him and Accused 2 to check whether the house Renier Ellerbeck moved in at Uitenhage was suitable for weighing or storing.  He and Accused 2 visited the house.  He suggested to Accused 2 that the house was suitable for weighing and not storing because there was a school and Kentucky next to it.

[198]   He knew Smuts as they worked together at Correctional Services.  He came across him at the casino.  Smuts was on sick leave and had financial problems.  He asked if he could avail his house for weighing as Accused 1 was looking for a weigh house.  He agreed and Edgar relayed the message directly to Accused 1.  Accused 1 instructed him and Accused 2 to check the suitability thereof.  He and Accused 2 found it to be safe.  But after about two weeks Accused 1 told them to stop using the house as the police had put it under surveillance.

[199]   Edgar testified that while still working at Sydenham house, Accused 1 received a cellphone call.   He said it was from South African Receiver of Revenue (SARS).  After a short time people arrived and served him with Income Tax documents.  He testified that on one occasion Accused 1 arrived at Sydenham house driving a Ferrari.  He further testified that Accused 1 told him that Accused 2 had been arrested at Jansenville with abalone.  He stated that he and Accused 1 went to Jeffreys Bay to fetch a white Bantam bakkie with CAW registration letters which Edgar bought from Accused 1’s girlfriend. After a month, Edgar sold the bakkie to Accused 1 for the same amount he bought it.  In turn Accused 1 sold it.

[200]   Edgar had an accident while driving a motor vehicle belonging to Accused 1 so he testified.  He had to pay for the damage.  He was further addicted to a drug called Tik which he used with Accused 2.  His wife, having had enough of that, suggested that they should relocate to Cradock.  Junior was in prison at the time serving a term of imprisonment.  Upon his release, Junior joined them at Cradock.

[201]   Edgar stated that Nicholaas du Plessis was a diver working for Accused 1.  He was arrested and bail was fixed at R5000.00.  Accused 1 asked Edgar to go to St Albans Correctional facility to pay the bail money.  He gave him a sum of R5000.00.  He went and paid it, du Plessis was released and he gave the bail receipt to Accused 1.  The receipt number appeared as G281087, Case Number 70/806/15 and is one of the bail receipts which were found at Accused 1’s house on the day of his arrest and was exhibited in court.  Edgar confirmed the signature depicted as that of the depositor to be his.

[202]   Mr Price cross-examined Edgar on his statement.  It did not appear in his statement that Accused 1 phoned and told him that Junior had been arrested for abalone on the second occasion.  His response was that he had not been asked about that by Captain Swanepoel at the time he made the statement.  Edgar could not recall whether he informed anyone other than his wife that Accused 1 phoned him after his arrest.  Edgar testified that he was present when Accused 1 said to Rynardt here is the money for kilos.  It has been accepted in court that kilos, refers to abalone in the language of abalone poachers.  He further said Accused 2 was present when Accused 1 paid Rynhardt.  This information also, did not appear in his statement.  He said the reason that he was not asked about it when the statement was obtained from him.  He conceded that he did a lot more building work for Accused 1.  He confirmed that he secured a weigh house for Accused 1 from Smuts.  The second occasion was when he went to inspect the house in Uitenhage.  He conceded that he did not mention in his statement that it was Accused 1 who gave him the instructions.  He further admitted that the only knowledge of Accused 1’s involvement in abalone pouching is when Accused 1 asked him to go and check the suitability of the house in Uitenhage.  He did not report to Accused 1 but to Accused 2 about its suitability.

[203]   It further came to light that Edgar did not mention in his statement that Accused 1 told him about the arrest of Accused 2 in Jansenville.  Again his answer was that he was not asked about it.

[204]   Edgar Clulow Junior (Junior) confirmed that he is the son of Edgar.  He was born on 4 September 1991.  He resided at different times at Algoa Park, 8 Corbin Street, Sherwood and after his release from prison he went to live with his parents in Cradock.  He was arrested four times for abalone.  The first occasion was in 2008.  Two of those occasions are relevant to this matter having been arrested at 8 Corbin Street.

[205]   Junior started in the abalone poaching as a gardjie and thereafter as a driver transporting abalone to weigh houses.  He would weigh it, put it into bags and hand it over to the person who was to transport it to a store house.  Rynhardt was his cousin.  He introduced him to Accused 1.  He knew Accused 2 well.

[206]   Junior’s father did work at Accused 1’s grandmother’s house.  His father asked him to assist with rubble since he had a bakkie.  He did that for a month.  One Saturday Accused 1 phoned and asked to meet with him at a Sasol Garage.  Upon arrival Accused 1 filled petrol in his car and asked him to go and weigh abalone at Schauderville.  He agreed.  Accused1 gave him a bag with blue chokka bags in it and a scale and asked him to follow him.  He showed him a house.  He weighed, packed the abalone in bags and gave him the weight.  He told him to transport it to a white Golf which was next to a certain Kentucky Fried Chicken.  He complied.  Accused 1 said they must meet at Edgar’s house at 7 Spencer Street.  Accused 1 arrived at Edgar’s house and gave him R350.00.  Accused 1 gave him a scale and a bag and asked him to keep them for future use.

[207]   In the afternoon of the same day, Accused 1 phoned him and told him to go to a house in Algoa Park to weigh and pack abalone.  He found out, when he got to the house, that it was Renier Ellerbeck’s house.  He knew him as the brother in law of Accused 2 even before that day.  He then instructed him to take the abalone to the same white Golf which was parked at a swimming pool in Westering.  He on that occasion noticed that it was driven by Accused 3.  He loaded the abalone in the boot and left.

[208]   On 22 March 2015 in the morning (i.e. the day Renier Ellerbeck was arrested), Accused 1 asked him to go to Renier Ellerbeck’s house to weigh and pack abalone.  He complied.  On instructions of Accused 1 he took the abalone to the swimming pool in Westering and loaded it in the same white Golf which was driven by Accused 3.  Later that afternoon Accused 1 told him that Renier Ellerbeck was arrested at Marine Drive transporting abalone.

[209]   Junior testified that he knew JP van Zyl and Nerfies.  The former stayed at Forest Hill.  On 17 April 2015, the day JP van Zyl was arrested at 56 Heather Square Garden in Forest Hill, Accused 1 phoned him in the morning at about 5am telling him to go to JP’s house.  He went there with Nerfies to weigh and pack abalone.  On the way to JP’s house Accused 1 phoned him from a number ending 2200.  In fact he phoned him about five times that morning.  He was travelling in a red Nissan 1400 bakkie.

[210]   Junior parked it a few houses from JP’s house.  He took the abalone from the boot of the white Golf and took it to the bathroom.  Accused 1 phoned whilst they were weighing asking how far they were from finishing.  While talking to him he heard a knock on the door.  He and Nerfies escaped through the back door because they suspected that it was the police.  They jumped over the back wall and ran away to the bushes where they hid.  Accused 1 came to pick them up.

[211]   Junior stated that they used to weigh abalone at Renier Ellerbeck’s home either in the kitchen or in the bathroom.  After weighing, he would either transport it to the storehouse or Accused 3 would do so.  Accused 3 would reverse into Renier Ellerbeck’s yard on the driveway, and he would remain in the car while he loaded the bags in the boot of the white Golf.  Junior at times would use Accused 1’s white Jetta in transporting abalone.  Accused 1 bought the Jetta for him replacing his car which was impounded by the police i.e. the red Nissan 1400 which was confiscated at JP’s house.  Later on, Accused 1 informed him that Accused 3 was arrested in the latter’s house in Westering and the Jetta was impounded by the police.  A day before Accused 3 was reported to have been arrested, Junior weighed 392 kilograms of abalone and packed it into bags in York Street, Kensington, on instructions of Accused 1.  He took the abalone to Accused 3 at the swimming pool in Westering.  Later Accused 1 phoned him and informed him about the arrest of Accused 3 with the abalone.  He was not paid for weighing and packing it because Accused 1 was upset by the confiscation of the abalone.

[212]   The house at No 8 Corbin Street in Sherwood belonged to Tommy Lamont.  Accused 1 leased the property from him.  Junior lived in that property.  One day he was from Marine Drive to fetch abalone.  When he pulled into the house police parked behind him and found the abalone in the boot of the motor vehicle.  They confiscated the abalone and the Jetta and he was arrested.  He went to court and was represented by Mr De Beer who was organised and paid for by Accused 1.  Bail was fixed and Accused 1 paid it.

[213]   Junior mentioned that Accused 1 bought the CAW white Bantam bakkie from his father and gave it to Pierre Scholtz to transport abalone after he had weighed it.  He used it a few times i.e. Pierre Scholtz.  He loaded abalone in a wooden box with a wooden lid which was at the back of that bakkie.  He identified Pierre Scholtz and the CAW bakkie in Exhibit “JJ” when the later was arrested.  He also identified the wooden box he used to load abalone.

[214]   Junior said that he knew Smut’s well because he worked with his father Edgar at St Albans prison.  He had earlier on taken abalone to his house with a red Nissan bakkie that was impounded at JP van Zyl’s house.  The police returned it to Conrad who in turn returned it to him.  He was told of Smuts arrest by Accused 1 and thereafter stopped transporting abalone to Smut’s house.  Instead he took abalone to a church in Bluewater Bay.  Accused 1 gave those instructions to him.  He handed the abalone to Mike Sinclaw.  He later learnt that Accused 2 was arrested in Jansenville from Accused 1.  He identified the motor vehicle which was driven by Accused 2 at the time of his arrest as belonging to Accused 1.  He identified it on photo album “W”.  He stated that he once replaced its number EC registration plate by putting one with GP registration letters and numbers.  He changed the plate number at York Street in Conrand’s workshop.

[215]   Ten days after the arrest of Accused 2, Junior was arrested for the second time at 8 Corbin Street with abalone.  He had been given instructions by Accused 1 to fetch abalone from Marine Drive to Corbin Street for weighing.  He complied but the four of them were arrested by the police while busy weighing the abalone.  He jumped over the wall and ran up to Lorriane.  Police chased him with the assistance of a helicopter.  He was arrested.  After his arrest he entered into a plea agreement with the State in terms of section 105A of the CPA.  He was legally represented by Mr Scholtz.  He received a prison sentence and ultimately spent seven months in prison.  He was released on 7 April 2016 and went to work for Accused 1 in the Construction business.  He thereafter decided to relocate to Cradock.  He was arrested after sometime for racketeering.  He pleaded guilty and was given a suspended sentence.

[216]   Junior approached Captain Swanepoel and informed him that he was prepared to testify against Accused 1, 2 and 3.  It was after he had spoken to his attorney.

[217]   Junior was cross-examined on a statement which he made on 14 September 2015 when he was applying for bail in respect of the offence which occurred at 8 Corbin Street on the second occasion.  In his statement he states that he earned money through mechanical work he did.  He conceded that he also made money through abalone poaching.  He did not mention that in his statement.  He admitted to have lied in the affidavit that he was to pay bail money himself because Accused 1 paid R5000.00 bail on his behalf.

[218]   Junior confirmed that he was present at Renier Ellerbecks’s house as shown on the video on 6, 26 and 29 April.  It was put to him by Mr Price that:

            “Well, my instructions from Mr Brown and other witnesses we will call is that you, that the groups              there were working for Diffie including you. 

            Answer: No”.

            No witnesses were called to establish this. 

[219]   Junior was advised that he was entitled to an attorney but Mr de Beer suddenly showed up on the day abalone was found in the boot of his Jetta, so he testified.  Mr de Beer informed him he was sent by Accused 1 to be on standby and to advise him not to say anything to the police.  He did not include this information in his statement because he did not view it as important and necessary.  He was caught and convicted for abalone pouching in 2008, 2014 and twice in 2015.  In all these instances, he did not reveal that Accused 1 was involved, except to his lawyer Etsebeth from Legal Aid.  He was not aware at the time he pleaded guilty to racketeering that he could get life imprisonment.  But he had arranged with the State, through his lawyer, that he was prepared to testify against Accused 1 and others hence Mr Le Roux, who was the prosecutor, informed the court of that before he was sentenced for racketeering.

[220]   Like Renier Ellerbeck, Junior testified that when loading abalone, one would hardly identify the driver because the driver would remain in the driver’s seat facing the other direction.  When finished loading, the driver would pull off.  He could identify the driver on the second occasion because Accused 3 alighted and assisted in taking abalone bags from his car to Accused 3’s car.  He denied that he was allowed to stay at 8 Corbin Street by Mr Lamont without paying rent because he was to fix the house.  He denied further that the amounts he received from Accused 1 were for building.  He testified that he worked once in his Construction business with his father while renovating his grandmother’s house.  He was never involved with Accused 1 in any building project up to the time when he was released from prison.  He confirmed that at the time of these incidents he had a drinking problem and was always in need of money.  However, he disputed that he made loans from Accused 1.  He merely started to poach abalone to make more money as suggested by Accused 1.  He denied further that the cellphone calls between them, which Accused 1 confirmed, were due to him loaning money from accused 1.

[221]   Junior testified that he did weigh abalone at the house of Renier Ellerbeck and he took it away and gave it to Accused 3 at Sydenham on instructions of Accused 1.  He was confronted with what appeared in his written statement that he met Accused 3 in Westering.  He admitted that was correct saying he was confused because he met Accused 3 several times.

[222]   Junior decided to turn a State witness when he received a phone call from Captain Swanepoel to say he wanted to see him, so he said.  There and then, he told his wife and parents that he wanted to turn a State witness against the accused.  He told Captain Erasmus and Captain Swanepoel accordingly.  He said he was not in a position to precisely know how many times he met with Accused 3.  He remembered only some of the incidents.

[223]   Junior met Accused 3 for the first time at his father’s house where Accused 3 alighted from the motor vehicle to off-loaded abalone from the motor vehicle he was driving.  Accused 3 introduced himself to him.  He testified that Accused 3 advised him that he was storing abalone in his house.  He did not tell the police nor Mr Le Roux for the State about that because he was never asked about it.  He remained adamant that he saw Accused 2 change the registration number plates of the bakkie and the licence disk.  He said the Jetta 3 with registration letters and numbers BCL 444 EC belonged to Accused 1.  He confirmed that the motor vehicle was registered in his name.  On the day before he was arrested at Cradock, Accused 1 telephoned him and told him to send a copy of his identity document to Dwyane.  That is how it was registered in his name, so he testified.

[224]   Japie Visagie works for AE Manufacturing which is an engineering business as a welder.  He identified a big steel pot on Exhibit “SS”.  He testified that he modified the pot.  He also identified the racks which were depicted at the scene where there was an explosion.

[225]   The State case was closed.  The Accused applied for their discharged in terms of section 174 of CPA on the basis that there is no prima facie case on the bases of which the Accused may be called upon the testify.  I refused the application because there was evidence upon which the Accused may be called to answer.  I based my decision on the evidence of the 204 witnesses which implicated the accused persons.  Having in mind the test applicable at this stage.  There was further evidence from other witnesses which on the face of it called for the accused to answer like the police witnesses and the cellphone records.

[226]   Accused 1 elected to testify and called a witness.  Accused 2 and 3 closed their cases without leading evidence.

[227]   Accused 1 testified that he was 32 years old having been born on 2 July 1986.  He stated that he had a hard life growing up.  He left school at the age of seventeen and started working at a Video shop.  He worked many hours in order to earn more money.  At the age of eighteen he applied for a job at Pub.   He worked about seventeen to eighteen hours a day because if he was working nightshift at the Pub he would work during the day at the video shop.  From there he worked for a company called Swannies Carpet Cleaning and Precast.  He remained in that job for three years.  Then he saw a business opportunity of selling scrap metals.   He would collect scrap metal all over Port Elizabeth and then sell it at a scrapyard.  In the beginning he was making about R500.00 to R600.00 per day.  After some time he bought a four ton truck and a bakkie which he used to transport steel or scrap metals.  At that stage he made about R3000.00 to R4000.00 a day.  At some point it was a very profitable business.  Later on the business did not make much money because of competition.  He decided to leave it in the year 2010/2011 and started to buy used vehicles, fixed them and sell them at a profit.  He left that business because it started not to be lucrative.

[228]   Accused 1 decided to renovate his grandmother’s house which was getting dilapidated.  From there he developed a passion for construction.  He started a construction business, renovating and rehabilitating properties.  He registered a construction company.  His business improved.  He could not cope with the number of clients received.  He opened a personal bank account with Nedbank and subsequently a business account with FNB in 2014.  He denied that he is a multimillionaire.  If he had millions of rand they would be reflected in his bank statement.

[229]    Accused 1 narrated his life with the police.  He testified that he met Donovan Reid (Donovan).  Donovan wanted him to invest in his business which he said was an ambulance business.  Apparently it turned out that he was an abalone poacher.  He decided to give the information to Mr Le Roux and Captain Swanepoel.  He denied that he himself was ever involved in abalone activities.  He testified that at the age between 17/18 years he met Dawie Van Der Merwe.  Accused 1 had a VW car.  Mr Van Der Merwe apparently liked his alcohol.  He would call him in the middle of the night to ask him to bring him a bottle of alcohol.  Accused 1 would, for an example, buy it for R200.00 and sell it to him for R500.00.  One day he called him to say that he must come to the sea and drive his vehicle.  He enjoyed driving because he was still young at the time and he drove into a trap and he was arrested by the police because there was abalone in the vehicle.  He was not aware of that prior to him driving the vehicle.

[230]   Accused 1 testified that he never met Accused 3 in his life.  He saw him for the first time at court.  He met Accused 2 sometime back.  At the time Accused 2 was working for another person collecting scrap materials.  Accused 2 complained about his salary and he realized that Accused 2 was a hard worker and recruited him to drive one of his vehicles.  He denied that he ever dealt in abalone with Accused 2.  In fact he heard stories about him but he never saw him in possession of abalone.

[231]   He knew that Accused 2’s sister was married to Renier Ellecbeck.  He would meet with Ellerbeck when he came to pick or drop off Accused 2.

[232]   Accused 1 denied what Ellerbeck said to court about him regarding the events which occurred on 22 March 2015.  He further denied that he was at the scene of crime in Marine Drive and tried to drive off Sergeant Shaw off the road.  He confirmed that he rented a Ford Ranger Double Cab bakkie from Mr Lochner.  He testified that even Accused 2 used to drive the Ford Ranger and even on the day of his arrest the vehicle was with Accused 2.

[233]   Accused 1 testified that on one time Accused 2 told him that Ellerbeck wanted to meet with him.  He agreed.  Ellerbeck informed him that he wanted to organise a person who would rob Dr Reddy who was Ellerbeck’s employer.  He told him that Dr Reddy had pounds and other valuable property which could be robbed.  Accused 1 told him that he was not the guy to talk about that. He decided to inform Dr Reddy of Ellerbeck’s plans of robbing him.  He later learnt that Ellerbeck and his wife were expelled by Dr Reddy.

[234]   Accused 1 confirmed that he knew Mr Lochner very well.  He had a business relationship with him.  He would get cars from him and pay instalments whilst the vehicle would remain in the name of Mr Lochner.  Mr Lochner introduced him to Mr Kriel who he also knew was buying and selling cars.  Mr Lochner told him about the Ferrari which was bought by Mr Kriel.  One day he phoned Mr Kriel and asked to see the vehicle.  Mr Kriel agreed and told him that the vehicle was at his workshop in Burman Road.  Mr Kriel told him that he can take a test drive because he knew that he loved fast cars.  He took the vehicle and drove to his building sites.  He showed the car to his workers and then thereafter drove back to park it at Burman Road.  That was the only occasion that he drove the vehicle.

[235]   Accused 1 further testified that on a certain day, he received a phone call from Accused 2.  The latter informed him that he was arrested at Jansenville with abalone.  He requested a loan of R10 000.00 for bail.  He decided to give him the money because he would deduct it from his salary.  He gave the money to Ellerbeck.  The original bail receipt was given to Rynardt Scholtz as security for his fees.  He later learnt that the case was withdrawn.  Ellerbeck and his wife took the money under the pretext that the original receipt was lost.

[236]   He testified that he knew nothing about what was happening at 16 Deborah Street, Westering.  He did not know the place at the time.  He only heard about Pierre Scholtz.  He did not know him personally.

[237]   Accused 1 confirmed that he knew Mr Smuts was working at Correctional Services.  He met him at Edgar Senior’s house.  Smuts and Edgar were best friends.  He has never been to Smut’s house.  He has never dealt with him in respect of abalone.  He never loaned him money.  Edgar told him that Smuts wanted him to loan money.  He refused because he knew that both of them had a gambling addiction.  He further testified that he knew nothing about 15 Nassau Street Kragga Kamma at all.  He has never been to that place and has never had any dealings with people who stayed in that house.

[238]   Accused 1 stated that he started to work with Edgar and Junior when he was doing construction at his grandmother’s place.  He provided both of them with employment because of the condition they were living under.  He also provided them with a house where Edgar was only going to do renovations instead of paying rent.  He did so because Edgar was very good with his hands and that was the only way he could bail them out from the squalor they were living in.  He heard that the Edgar were busy with abalone poaching.  He tried to talk to Edgar out of the abalone smuggling and informed him that he must look after his family and live a responsible life.  He heard, even at the time he provided him with accommodation, that he was still involved in abalone poaching.  He further heard that he was transporting divers and also using the house as a weigh house.  Eventually Junior was arrested and sentenced to a period for about two years.  Upon his release, he financially assisted him.

[239]   Accused 1 testified that he met Captain Swanepoel through a lady called Marelise because he wanted to give out information about the unlawful activities which were conducted by Donovan Reid whom he had initially partnered with in the ambulance business.  He then met with Captain Swanepoel and he gave him information about Mr Reid and other people whom were involved in illegal activities.  He developed a relationship with Captain Swanepoel to an extent that he would phone him two or three times a day and frequently visit his office for two years.  He has been to Mr Le Roux’s offices twice already in his life time to pass information about illegal activities.  He developed a good relationship with Captain Swanepoel.  He testified that he was a registered informer with Ryan Heynes from the SIG Unit. He did not receive money for the information he gave out.  He confirmed the evidence of Nicky about their relationship and how they met.  He stated that they were in good terms and shared the whatsapp which have been Exhibited in court.  He further confirmed that he asked him to introduce him to his father Captain Erasmus so that he may give information to him.  But that never materialized.  Instead Captain Erasmus developed a personal vendetta against him and found people to falsely implicate him in various abalone activities.

[240]   Accused 1 narrated the incident which involved Mr Garth Du Preez.  The latter wanted to assault Accused 2 at a house in Kensington.  That is an incident Captain Erasmus referred to where a male was shot dead.  He received a phone call informing him of that.  He went to the place as it was two minutes away from where he stayed.  He tried to intervene but he was badly beaten by Garth Du Preez and one Swieglers who was also at the scene.  It later transpired that Garth was shot dead by whoever was passing-by at that stage.  Captain Erasmus accused him of being responsible for the death of Garth Du Preez.  Captain Erasmus went around spreading word that he was involved in his murder.  The reason was that Captain Erasmus was a friend of Mr Du Preez’s father.

[241]   He testified that he has never picked up Junior at Forest Hill in a white BMW.  At the time he was driving a white Kombi.  And even the cellphone records do not link or do not reveal that he spoke to him at the alleged time of the incident, so he testified.

[242]   Under cross-examination by Mr le Roux, Accused 1 confirmed that he drove a Ford Ranger Double Cab as well as a BMW Sedan.  He was paying about R13 000.00 for both vehicles.  They did not belong to him but to Mr Lochner.  He testified that at the time he did not have any vehicle which was registered in his name.  He was further cross-examined on the question of the life style audit which SARS had launched against him.  He confirmed that he Mr Kriel, Mr Lochner and one Mr Roberts received forms from SARS which were termed life style audit forms to fill.  He refused to fill in until SARS had to launch an application in court compelling him to do so.  It transpired from the judgment of that matter that Accused 1 was not registered as a taxpayer.

[243]   Under cross-examination by Mr Le Roux, it turned out that there was an investigation going on against Mr Donovan Reid for using his ambulances to transport abalone.  That aspect was even confirmed by Accused 1.  It further was put to him that the dispute between him and Mr Reid was about a black Ford Ranger bakkie which belonged to the latter and for which Accused 1 was taken to court in order to hand back that motor vehicle to its owner that is Mr Reid.  Accused 1 confirmed this.

[244]   Under cross-examination Mr Le Roux quizzed Accused 1 in connection with the evidence of Renier Ellerbeck which is confirmed by Exhibit “O”.  Exhibit “O” was a combination of the phone calls between Accused 1 and Renier Ellerbeck which Captain Swanepoel collated.  He was further asked about the communication between himself and Sheron Smith who was a known abalone diver approximately the same time he was contacting Renier Ellerbeck when the caller was arrested.  He stated that he probably would have called them because they owed him money for diving gear and boats rented from him.  Initially he had stated that he might have called Renier Ellerbeck because at the time he was staying with Accused 2 who had no cellphone with him.  When asked why he would have had to call Renier Ellerbeck and Sheron Smith and then again Renier Ellerbeck, his answer was the following:

      “I just, I do not want to sound funny, but I do not even think that Oke has got the right mind to    have a cellphone or even know how to use a cellphone”.

[245]   Mr Le Roux questioned Accused 1 about Exhibit “X” which is a registration certificate of the Mazda vehicle in which abalone was found at Jansenville driven by Accused 2.  He reminded Accused 1 that the vehicle was bought by Mr Lochner from Mr Groenewald and sold to him.  He further reminded Accused 1 about the message which was found in his phone from Accused 2 in connection with the abalone which he was found with in Jansenville.

[246]   In his responds he mentioned that there was a certain Mr De Villiers who gave him R50 000.00 which he took to Mr Lochner and bought the vehicle from him for the same R50 000.00.  He then took the vehicle and handed it over to Mr De Villiers.  In respect of the message on the phone he responded as follows:

“I do not recall about the message, but I know that he told me that he is getting money soon and he was basically explaining to me how much many he is going to get and when Mr Swanepoel investing had Mr Victor in the offices with them.  I actually phoned Mr Swanepoel             and I said to Mr Swanepoel he must put the phone on speaker and I said to Accused 2 I said to him if you ever want to get out of this mess that you are in you must speak two Mr Swanepoel, he is a trustworthy person, and tell him whose stuff you are riding, and I think Mr Eksteen was also present when I spoke to Mr Swanepoel and then he said he will tell them”.

[247]   This to me clearly does not respond to the question however Mr Le Roux went on to quote verbatim the message which was on the phone and which read as follows:

      “54 sakke 912 kg sonder die punte hoor jy die ou . . . jy moet kyk viri blaiek weet nie waar die       ding is”.

[248]   Accused 1 responded as following:

      “As far as I know him he was obviously telling me what money he is going to obviously received   from doing this work, and I mean I did not replied to this message at all”.  (Sic)

[249]   He was asked why he would do that, his response was that “he was not in a conversation with the Oke at all”.  He further responded as follows:

      “At that time he was owing me a lot of money and he was working for Mr De Villiers at that time,   so it is probably his way of telling me he is going to pay me or tell me this is the money that he is       going to get, this is how much stuff he has loaded.  I do not know”.

[250]   He further testified that Ellerbeck, Junior and Smuts all worked for Mr De Villiers.  He could not explain why they communicated with him instead of Mr De Villiers who was benefitting from their unlawful activity.

[251]   He further confirmed that he visited China and Hong Kong with Mr Donovan Reid.  The air ticket and the rest were paid for by Mr Reid.  This should be viewed in the backdrop of the fact that Mr Reid was an abalone poacher.  In fact he was a kingpin according to Accused 1.

[252]   He was further asked about the audio messages which were a Chinese guy talking about green stuff and brown stuff and how it should be cooked and be prepared.  The audio message further referred to:

       “Before arrive I will let you know and I want you and the company will pay you the ticket to           Hong Kong one or two day and we open and we post together and check the stuff together in       Hong Kong then we know in future how we are going to do it okay there is an idea what I am         thinking what do you think is it okay or not”. (Sic)

[253]   As stated before he confirmed that he had been to China and not Hong Kong.  He testified that he would not know why a person would send such a message to him hence he did not respond to all three audio messages which were found in his phone.  For purposes of the record I shall also refer to the conversation which was send to his phone on the 31 March 2016 which read:

      “Hi, I scare you don’t understand the writing because my English is not that good.  Can you tell     the chef when he cook the brown one the time he cook he must try to use a stick to turn the fish       because the brown one is very difficult to get hundred present well done and also after he     finished cook must not just open the top, keep the top to close for half an hour you know to keep    the temperature longer inside the pot you understand inside when the fish can make better   looking because I see from the fish the stomach is up, it means inside the fish is not one hundred      present cooked, it’s raw, that is why and that one the people don’t like, they will see know they      want slow cook you see”. (sic)

[254]   Accused 1 did not know why that person would give such instruction to him.

[255]   He was further asked about the coincidence between the number of calls which Junior received from him on the morning of 17 April 2015 in the backdrop of Junior’s evidence that Accused 1 instructed him telephonically to go and weigh abalone.  That was the incident where they evaded the police by jumping over the wall.  Accused 1 picked them up subsequently.

[256]   He was further asked about Exhibit “DD” which was found in his cellphone.  Exhibit “DD” contained quite a number of divers with numbers and amounts written on it.  It was put to him that those represented the amounts which the divers were going to be paid.  He testified that he had never seen the copy on his phone.  He further testified that he would not have taken a photograph of that document.  As it is common practice in his responses he reverted to say that “well some of these people I have loaned money”.  He did not know how it got into his phone as he received thousands of videos and photos each time he opened his phone.  So he does not know how that document got into his phone.

[257]   Mr Johan Pieter Fowke was called as a defence witness.  He testified that he met Accused 1 at a social gathering and they had a conversation together.  It transpired that they had something in common.  They both liked fast cars.  He would regard Accused 1 as an acquaintance not a friend.  He testified that he assisted Accused 1 in professionally running his construction business.  He further showed him how to be VAT and BEE complaint.  Due to the fact that Accused 1 did not have a good financial record because his business money did not go through the bank, he was not credit worthy.  He decided to assist him by renting out his motor vehicles.  Accused 1 had to pay monthly instalments directly to him for the use.  He confirmed that the whiter Ford Ranger Double Cab Accused 1 was driving belonged to him.

[258]   Fowke testified that he signed a lease agreement on 11 April 2016 in connection with a property that was destroyed by an explosion.  He stated that property had nothing to do with Accused 1.  He had taken occupation of that property three days before the explosion.  He testified that he visited the establishment after it had exploded and came across Captain Swanepoel and Captain Erasmus at the scene of crime.  They insinuated that it was Accused 1’s fishing establishment.  He categorically denied that.  He further testified that Captain Erasmus had an issue with Accused 1 to an extent that he told him in no uncertain terms that he would not retire without having made sure that Accused 1 was serving a long time in jail. He denied that one of the motor vehicles was used to fetch a large pot that was found in the property that had an explosion.   He stated that he assisted Accused 1 towards raising his bail money.  He loaned Accused 1 R140 000.00 which he has already settled.  The defence case was closed.

Legal Framework:

[259]   It is necessary for purposes hereof to deal summarily with the provisions of the POCA with which the Accused are charged.  The reason behind the enactment of the POCA is because of the rapid growth of organised crime in South Africa and the failure  (of both Common and Statutory Law) to keep up with international measures aimed at dealing with organised crime, money laundering, criminal gang activities and racketeering.[5] 

[260]   Chapter 1 of the POCA deals with the definitions and interpretation of the Act.  Of relevance for purposes hereof are the following definitions: 

“‘enterprise’ includes any individual . . . , and any union or group of individual in fact, although not a juristic person or legal entity;

‘pattern of criminal gang activity’ includes the commission of two or more criminal offences referred to in Schedule 1: Provided that at least one of those offences occurred after the date of commencement of Chapter 4 and the last of those offences occurred within three years after a prior offence and the offences were committed –

(a)   on separate occasions;

(b)   on the same occasion, by two or more persons who are members of, or belong, to the same criminal gang;

‘pattern of racketeering activity’ means the planned, ongoing, continuous or repeated participation or involvement in any offence referred to in Schedule 1 and includes at least two offences referred to in Schedule 1, of which one of the offences occurred after the commencement of this Act and the last offence occurred within 10 years (excluding any period of imprisonment) after the commission of such prior offence referred to in Schedule 1;

‘proceeds of unlawful activities’ means any property or any service advantage, benefit or reward which was derived, received or retained, directly or indirectly, in the Republic or elsewhere, at any time before or after the commencement of the Act, in connection with or as a result of any unlawful activity carried on by any person, and includes any property representing property so derived;

‘property’ means money or any other movable, immovable, corporeal or incorporeal thing and includes any rights, privileges, claims and securities and any interest therein and all proceeds thereof;”

The Accused are charged with the contravention of the provisions of the POCA, of Chapter 2 in particular sections 2(1)(e) and 2(1)(f).  Furthermore, the State relied on the provisions of section 2(2).

Sections 2(1)(e) and (f) and 2(2) provides as follows:

“2  Offences

(1)   Any person who . . .

(e)  whilst managing or employed by or associated with any enterprise, conducts or participates in the conduct, directly or indirectly, of such enterprise’s affairs through a pattern of racketeering activity;

(f)   manages the operation or activities of an enterprise and who knows or ought reasonably to have known that any person, whilst employed by or associated with that enterprise, conducts or participates in the conduct, directly or indirectly, of such enterprise’s affairs through a pattern of racketeering activity”.

[261]   The State in its quest to prove the charges predominently relies on the evidence of the police witnesses who were involved in the investigation of the racketeering activities.  The evidence of the police should be read together with the evidence of the section 204 witnesses.  I mention upfront that the testimony of the police tallies with that of the section 204 witnesses regarding the commission of the various racketeering activities in all material respects, especially in regard to how the 204 witnesses were arrested (i.e. Smuts, Renier Ellerbeck, Edgar and Junior).

[262]   The evidence in respect of the various racketeering activities spells out that there was an enterprise in operation.  It is apparent that the 204 witnesses worked as a group in committing the various offences.  They worked for an enterprise or a group of persons.  They were remunerated for their activities in poaching abalone.  Accused 1 in his cross-examination of some of them, suggested that they were working for a kingpin by the name of Diffie.  In fact my understanding of the defence of Accused 1 is partly that they are substituting him for Diffie.  He does not dispute that the 204 witnesses were arrested in respect of the various activities.  He also does not dispute that Accused 2 and 3 were arrested in the manner described.  Apart from that the Accused are challenging the lawfulness of the manner in which the searches of the premises and motor vehicle of the 204 witnesses were conducted, they do not dispute that the 204 witnesses were involved in abalone poaching.  Much of the defence is directed at that.

[263]   The 204 witnesses, at the time of their arrest did not raise that their Constitutional rights were violated.  In most instances there were legal representatives present during the searches and their arrest.  The right not to be arbitrarily searched or arrested is a personal right.  If the person searched does not raise an objection to it, so be it.  A second person cannot in the circumstances clamour to enforce that right.  The Accused persons cannot raise the objection on their behalf.

[264]   Accused 1 takes issue with the following aspects of this matter:        

·         That the five section 204 witnesses relied upon by the State varied from being poor to extremely poor in their evidence, they admitted that they did not know that their searches were unlawful, they would have not co-operated with the investigation.

·         That the section 204 witnesses were extorted and threatened and or mentally tortured to be State witnesses.

·         That the cellphone billings of Accused 1 were unlawfully obtained by Captain Swanepoel hence the synopsis and the affidavit of Warrant Officer Bosch was submitted and commissioned very late in the investigation.

·         The video camera that was used at Renier Ellerbeck’s home amounted to entrapment in terms of section 252 A of the CPA.

[265]   It has become trite that the evidence of an accomplice witness must be approached with caution[6].  Cautionary rules and its components are merely an aid to a purpose.  A criminal case is not about the application of rules but about finding the truth.  The Appellate Division, per Smalberger JA, voiced a reminder in State v Francis  1991(1) SACR 198(A)  at 205f that the test in the final analysis is whether the court, after proper consideration of the accomplices’ evidence with the caution required by the law, is beyond all reasonable doubt satisfied that the story the accomplice tells is essentially true[7].

[266]   It has been argued on behalf of Accused 1 that Renier Ellerbeck is a single witness regarding the events or activities that occurred on 6, 26 and 29 April 2015 and that the State has failed to corroborated his evidence by calling other available witnesses.  In fact it is essential to highlight how Renier Ellerbeck turned a State witness.  After his arrest by Sergeant Shaw at the Marine Drive with abalone, he decided to turn a State witness out of his own volition.  The difference between his evidence and that of Captain Swanepoel regarding how they met at the Magistrate’s court offices to me is immaterial in establishing this aspect.  Renier Ellerebeck categorically testified, in spite of rigorous cross-examination in this regard, that he decided on his own “to tell it all” about abalone poaching.  The witnesses the State failed to call have nothing to do with his resolution.

[267]   Furthermore, it is him who allegedly spoke to Accused 1 and Accused 2 about the incident that occurred on 25 March 2015 up to the stage when he was arrested.  No witness could have been called by the State to corroborate this part of his testimony.  Pertaining the other activities which involved Edgar, the latter corroborated each and every aspect of his testimony about the events that connected them in the commission of the various offences.  Lack of corroboration in some of these aspects should be viewed from the background provided by Mostert and others that the operations were conducted on a need to know basis.  No one knew who played the next role.

[268]   What is essential in the evidence of Renier Ellerbeck and Junior, for that matter, is that they had personal dealings with Accused 1, 2 and 3.  Renier Ellerbeck dealt and received instructions, to either fetch or transport abalone, from Accused 1 personally as reflected in his evidence above.

[269]   Much has been said during his evidence especially under cross-examination about the setting up of the video camera at his house.  The explanation given by Captain Swanepoel and Renier Ellerbeck makes perfect sense.  It was not meant to entrap anybody.  In fact none of the Accused are implicated by it.  The purpose was to establish the truthfulness of the allegations by Renier Ellerbeck.  Captain Swanepoel wanted to satisfy himself that Renier Ellerbeck was telling the truth.  Indeed, with the aid of that video, the truthfulness of Renier Ellerebeck’s allegations was confirmed by Captain Swanepoel.  The decision by Renier Ellerebeck, it should be noted, led to the breakthrough of the cartel involved in abalone poaching.  The information he provided to the police led to a number of arrests and the uncovering of the various racketeering activities relied upon by the State.  It led to the convictions of some of the 204 witnesses.  It is undoubtedly so, that in spite of the criticism levelled against the reliability of his evidence, the information about abalone poaching provided to the police by Renier Ellerebeck turned out to be authentic.  It therefore cannot be heard to be correct that Renier Ellerbeck’s entire evidence stands to be rejected.

[270]   Much criticism has been levelled against him because of his previous criminal conduct.  Renier Ellerbeck did not dispute his brushes with the law.  He stole from his previous employer safety boots and was expelled for it.  He admitted that he stole R3000.00 from a person who was to lease a property.  All these factors do not lead to this court rejecting his evidence or that he should not be believed.  Much was said about him having stolen the bail money paid on behalf of Accused 2 and money meant to be used to fetch the remains of his mother in law etc.  It was emphatically put to him that several witnesses were to be called to establish that he is a liar in that he lied in respect of several aspects.  But that was a hollow threat, as no such witnesses were called.  I highlighted when I dealt with the evidence several instances where it was pertinently put to various witnesses by Mr Price that witnesses would be either called to dispute or prove certain relevant aspects of this matter.  None of the promised numerous potential witnesses were called by Accused 1 to testify except Mr Fowke.

[271]   The background and criminal history of Renier Ellerbeck has to be taken into account.  It has to be viewed in the totality of the evidence provided by him in this matter.  But his previous conduct should not be used to cloud the relevance of his evidence.  It should not be used to displace logic and established facts.

[272]   It is logical that accomplices and 204 witnesses have self-serving reasons to turn into such witnesses.  That much cannot be disputed.  The driving motive apart from other factors like having a guilty conscience etc., is self-motivated.  Renier Ellerbeck and other 204 witnesses testified amongst other things that, they saw a gap and seized it, they felt that attorneys organised by Accused 1 on their behalf gave much attention to him rather than their criminal matters,  that Accused 1 abandoned them in previous encounters with the law, avoiding to go to prison for a long time etc.  All these motivations should be viewed against the totality of the evidence during evaluation.  Such reasons, do not by themselves prove that the 204 witnesses are lying.

[273]   Mr Price referred me to State v Brooks and Others 2019(1) SACR 103 (NCK) in arguing that the amount of R60 000.00 – R70 000.00 paid to Renier Ellerebeck should have been given to him at the end of the trial.  He argued that it is like hiring a witness as it is put.  This aspect should be contextualised.  All I know is that it was for information provided by Renier Ellerbeck and not a motivation to lie against Accused 1.  As stated before, the unlocking of abalone poaching came as a result of the information provided by Renier Ellerbeck, so the evidence reveal.  He had not received any payment at that stage.  I should not be seen or heard to say it was correct to pay him.  In this instance, I would not categorise the payment of Renier Ellerbeck as amounting to hiring him.  After he spilt the beans he was then used as a police informer hence the payment.  I dealt, above, with the reasons why he turned against Accused 1.

[274]   The nature of this “business” is that a person does not have to know the next person.  It would be bizarre therefore for Renier Ellerbeck to produce proof of payment from Accused 1.  Even Edgar did not produce proof of the payments made when he was constructing the boundary wall.  Neither did Accused 1 do so.

[275]   Renier Ellerbeck is Accused 2’s brother in law.  They, at some stage stayed together.  Renier Ellerbeck stated how he came to know Accused 1 through Accused 2.  He was recruited to abalone poaching by Accused 2.  He dealt with Accused 2 personally.  He testified that he received instructions to either transport or store abalone from Accused 1 and Accused 2 directly.  He, unlike others, dealt directly with Accused 3, Edgar and Junior because his was a weigh house.  He knew that all of them were working for Accused 1.  In truth and reality all of them, with the exception of Accused 1 were arrested by the police with abalone.  Hence the various activities.  The police did so as per information given by Renier Ellerbeck.  Edgar and Junior corroborated the evidence of Renier Ellerbeck in material respects pertaining their involvement.  Renier Ellerbeck testified that at the time of his arrest, he was in telephone conversation with Accused 1.  The synopsis compiled by Captain Swanepoel i.e. Exhibit “O” and paragpraph 4.2.5 of Exhibit “YY” confirm that.  Captain Swanepoel’s evidence that approximately at that time, he received a phone call from Accused 1 to say people were driving recklessly in Marine Drive is confirmed by the cellphone billing.

[276]   Renier Ellerbeck, despite his criminal past and the criticism levelled against him, gave credible evidence especially that he finds corroboration from other sources.  He did not lie about the circumstances which led to his arrest.  He answered the questions asked of him frankly and honestly.  No evidence was adduced, as repeatedly promised, to gainsay his testimony.  He was honest with his past in that he was involved in abalone activities even before he met with Accused 1 and Accused 2.  The inconsistencies and omissions in his written statement and evidence in court are not material to the issue at hand.  There is no basis whatsoever that Renier Ellerebeck and other 204 witnesses in particular, were substituting Accused 1 and Accused 2 for any abalone kingpin.  There is no basis for that allegation.  There is no semblance of evidence or motive advanced why these witnesses would substitute Accused 1 for Diffie for example.  Accused 1 has submitted that his involvement with the 204 witnesses was that he organised them lawyers when they were arrested, he paid bail for them, he provided or hired out his diving equipment including gas cylinders to abalone poachers etc.  In other words he was of assistance to them.  There is no suggestion that Diffie did the same for them even though they were working for him.  The most reasonable expectation in the circumstances would be for them to falsely implicate Diffie who even though they were working for, did not help them when busted by the police in the course of their employment with him as alleged.  Petrified as they may have been of life or lengthy periods of imprisonment why would they falsely implicate Accused 1 who had been so instrumental in trying to improve their lives in the fashion told by him.

[277]   According to Accused 1, some of the 204 witnesses are known abalone smugglers.  Dywne, Diffie and others are kingpins and abalone poachers but Accused 1 had such an intricate relationship with them.  He was organising lawyers and bail for abalone smugglers.  I am aware that he says it was at a fee.  The Bantam bakkie, the Jetta and other cars exchanged hands with the abalone smugglers as admitted by him and testified to by the State witnesses.  It is mind boggling therefore that those who he helped implicated him for no reason or rhyme.

[278]   Moment is made by Accused 1 that Smuts was threatened by Captain Swanepoel and Eksteen that he was facing a lengthy term of imprisonment, and had he been properly advised by Mr Gouws that the search was illegal, he would not have co-operated with the police investigation.  The fact of the matter is that he gave information to the police out of his own volition.  For the reason stated above, he decided to give out information to the police about Accused 1’s involvement in abalone smuggling.  Smuts admitted being involved in abalone poaching before these activities.  He knew at some stage that Accused 2 worked for Diffie’s group.  But he stated that at the time of his arrest, he was working for Accused 1.  Even with him, there is no basis laid for why his would prefer to implicate Accused 1 instead of Diffie who was his boss, so to speak.  I know that Accused 1 has no legal duty to establish or know the motive.  My understanding of the threats made against Smuts is that he was not told who to implicate.  No suggestion was made to him to implicate Accused 1.  It is strange therefore in the absence of such, why independently of other 204 witnesses, would he implicate the Accused 1.  He testified that he personally got instructions about abalone directly from Accused 1.  He as stated above, on four occasions he received his remuneration for abalone poaching from Accused 1 personally.

[279]   Smuts and Renier Ellerbeck corroborated each other regarding many material aspects.  Renier Ellerbeck used to take abalone to Smut’s house.  Smuts dealt with Accused 2 personally.  On the day of his arrest Accused 2 phoned him telling him to remove the abalone as the police had discovered the house.  He was arrested while he was busy moving the abalone.  His evidence was brief and to the point and apart from the issue of the threat by Captain Swanepoel and Eksteen, I ruled the search to be unlawful.

[280]   The defence alleges that Edgar was intimidated to become a witness in this matter.  It is not suggested that he was intimidated to falsely implicate the Accused.  The involvement of Edgar in Accused 1’s construction business is not in dispute.  I say so mindful of his criticism that he down played the extent of work he did for Accused 1.  He met his nephew Rynardt Jonck who was a diver working for Accused 1.

[281]   Mr Price criticized Junior as a poor witness who contradicted other State witnesses and his own statement in numerous respects.  He stated that in his previous abalone cases, Junior never mentioned nor implicated Accused 1.  It was further pointed out that even his plea bargaining statement Exhibit “KK” he did not mention Accused 1’s name.  A simple answer is that at the relevant times Junior had not made up his mind to expose Accused 1.  He merely did so when he received a phone call from Captain Swanepoel after he had served his time in respect of the other activities.  The contradictions in his statement and the affidavit submitted when he applied for bail. He may have lied in those instances but in this matter his evidence find corroboration from other sources. 

[282]   I don’t wish to detain myself in the debate of whether Junior would not have pleaded guilty if he knew about the missing or unlawfully obtained search warrant.  The Constitutional right or otherwise that were flouted were available to Junior and not the Accused.  The Accused cannot premise their defence on that.  That is akin to confessions and admissions made by a witness.  An Accused person cannot rely on the inadmissibility of a confession made by a witness to advance his case.  Such challenge is available only to an Accused person and not the latter on behalf of a witness who testifies against him.

[283]   The totality of the evidence clearly establishes that there has been a contravention of sections 2(1)(e) and (f) of the provisions of the POCA as set out in the indictment.  Furthermore, it has been established that the provisions of Regulation 36(1)(a) read with Regulation 96 of the Regulations Promulgated in Government Notice R1111 and read with Regulation 1 and section 58(4) of the MLRA further read with section 250 of the CPA have been contravened.

[284]   The evidence further established that there was an association of fact enterprise whose purposes was to engage unlawful in fishing, collecting, keeping, controlling, processing, of and possession of abalone for “self-enrichment”.  The evidence spells out how the enterprise operated through the pattern of racketeering activities set out and discussed above.

[285]   As alluded to, the discovery of the existence of the enterprise was the arrest of Renier Ellerbeck.  Renier Ellerbeck was recruited to the enterprise by Accused 2 who introduced him to Accused 1.  Renier Ellerbeck went through the ranks of abalone poaching as set out by Mostert, Captain Erasmus and others.  Renier Ellerbeck was managed and paid by Accused 2 and Accused 1.  He received instructions from them and so are the other 204 witnesses in terms of the evidence.  Undoubtedly so, the evidence established that Accused 1 and Accused 2 are the association of fact enterprise who managed its affairs through the racketeering activities referred to.  The personal involvement and management of the affairs of the enterprise by Accused 1 and Accused 2 cuts across as a thread through the evidence of the 204 witnesses, the cellphone records and the sms messages which were found in the cellphones of Accused 1 and Accused 2.  It is worth commenting about that sms and whatapp messages which had to do, for an example, the Chinese concern on how abalone should be cooked as consumers were not happy if it is not well cooked, are found in the cellphone of Accused 1.  Accused 1 says that he did not know their origin and did not respond to them.  Accused 2 sends him a message at the time of his arrest in Jansenville.  Accused 1 does not know what the message sent by Accused 2 meant except to suspect that it had to do with the money owed him.  That cannot be correct in the circumstances.  Accused 1 cannot surmise that the message was about payment of his money because he now knows that Accused 2 was being arrested at the time he sent the message referred to in paragraph 245 above.  The 204 witnesses, independently of each other, at the time of investigations and in relation to the commission of the offences, claim that payments made to them by either Accused 1 and Accused 2 was for abalone poaching.  Accused 1 claims that it was for money leant to them.  His version cannot be correct in the circumstances.  Upon their arrests, attorneys and bail money was paid for by Accused 1.  Bail receipts on behalf of other known abalone divers were found in Accused 1’s house.  The motor vehicles which were used in the transportation of abalone by the 204 witnesses had one way or the other had to do with Accused 1.

[286]   Kriel was not a good witness.  I need not detain myself by analysing his evidence.  His evidence has not been confirmed by Lochner nor by Yusuf Shaik for Dada Motorland.

[287]   The explosion as covered by the eleventh activity did occur.  It is apparent that the building was used as a fishing processing plant or establishment because cooking equipment and abalone was found.  I accept the evidence of Captain Erasmus regarding his reconstruction of the scene.  However, the evidence is not sufficient to conclusively link Accused 1 to it.

[288]   There is certainly evidence which links Accused 2 and Accused 3 to the commission of the offences with which they are charged.  I refused their discharge at the end of the State case precisely because of that.  They elected not to testify in their defence.  I do not have evidence apart from their cross-examination to counter the evidence before me.  The evidence before me is credible enough to sustain convictions in the absence of a version from Accused 2 and 3.  The evidence of Warrant Ferreira, Smit and Sergeant Shaw regarding the false registration on the Mazda motor vehicle driven by Accused 2 stands unchallenged.  It was unlicensed, false number plates were used.  That on its own amounts to fraud.  Accused 2 could not produce a valid driving licence.  All that evidence has not been disputed by Accused 2.

[289]   Regarding count 3 I am unable to find that the State proved that it was the Accused 1 who prevented Sergeant Shaw from arresting Renier Ellerbeck.  I am convinced that the motor vehicle used is the Ford Ranger Double Cab Accused 1 is using.  I further suspect that it is him who was driving it at that time.  But suspicion is not enough to convict him on this count.  Sergeant Shaw could not identify the driver nor his colleague apart from taking down the registration plates of the motor vehicle that was obstructing them.

[290]   The evidence adverted to proof beyond reasonable doubt that some of the offences were committed.  The Accused version in those circumstances stands to be rejected.

[291]   Consequently, I find as follows:

1.      Accused 1 is convicted on counts 1 and 4 and acquitted on counts 3 and 12.

2.      Accused 2 is convicted on counts 1; 2; 7; 8; 9; 10 and 11.

3.      Accused 3 is convicted on counts 2 and 6. 

________________________

M MAKAULA

Judge of the High Court

For the State:                                             Adv M Le Roux

                                                                  National Director of Public Prosecutions

                                                                   Port Elizabeth

For Accused 1:                                           Adv T Price

                                                                    Port Elizabeth

Instructed by:                                              Griebenow Attorneys

                                                                    Port Elizabeth

For Accused 2 and 3:                                  Mr P Roelofse

                                                                    Port Elizabeth

Instructed by:                                        Roelofse Meyer Attorneys                                     

Date Delivered:                                            5 February 2019

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