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The suspects arrested at both scenes, were amongst those who tendered guilty pleas during the initial phase of the prosecution before Erasmus, J. In the middle of the yard, opposite the entrance from Hercules Street, the police found a large blue shipping container mounted on the back of a rusty old Mercedes Benz truck, which can be seen on a number of the photographs relating to that scene.
When the doors of the container were opened, the police discovered several items of interest inside.
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These included blue metal drums of sodium hydrosulphate which Lieutenant Colonel Potgieter later told the Court was a chemical used in the drying of abalone. There wa also a variety of unmade cardboard boxes, several plastic dishes, gas bottles and shelving made from steel mesh. Potgieter told the Court that this was the sort of apparatus usually associated with the drying of abalone.
Potgieter searched the cab of the truck and found, inter alia , a cross-border transport permit in the name of a certain Bertie Basson.
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The accused later admitted this ownership, as well as the fact that Chuang left South Africa on 21 June During the course of the Bellville raids, the police received information about a suspected abalone processing facility on a farm near Rawsonville in the Boland. Lieutenant Colonel Potgieter was tasked with co-ordinating a raid on those premises.
It was immediately apparent to the police that the cottage was being used for the processing of fresh abalone, in this case by drying it. The police found a large number of steel drying racks on the premises and seized units of dried abalone. Also on the premises they found basic industrial cooking equipment, suggesting that the abalone had been boiled in large containers before being put on the steel racks to dry.
Lieutenant Colonel Potgieter told the Court that they found no one in the house while conducting their search, but as they were in the process of concluding their search, the police heard a noise in the roof and were suddenly confronted by two men, who fell through the ceiling and landed on the floor. It later transpired that they were illegal immigrants of Mozambican extraction, who were later repatriated to their country of origin.
Although the police seized a large quantity of abalone at these premises, none of the accused before Court was arrested at Volmoed. Potgieter also participated in the Rawsonville raid, and during his search of the premises, he came upon a large industrial type scale, as well as a smaller domestic scale. He found the packaging pertaining to the latter and was also handed a Clicks Stores till slip by a colleague participating in the raid, Captain Carstens, which reflected that the domestic scale had been purchased from a branch of that store in Dainfern, Gauteng.
The till slip contained a reference to a Clicks loyalty card and through some smart detective work, Potgieter was able to link that number to Wei Liu Liu, the owner of the Toyota Condor, which was seized during the Stellenbosch raid.
In a subsequent interview with Ms Mouton, Potgieter established that a written agreement of lease had been drawn up in respect of the cottage on Volmoed by attorneys in the Strand, in which the lessee was recorded as one Steven McDonald. As already indicated, this was a large commercial cold storage facility, at which any number of a variety of products were stored for private clients prior to transhipment elsewhere.
These pallets were found to contain boxes of pilchards and abalone, packed in a very specific manner, with the abalone at the bottom and the pilchards on top. It was established that the pilchards had been stored by Rapitrade and Syroun. In addition there was also a pallet stored by Aqualina. Arrangements were made for the seized items to be transported to the cold storage facility, operated by MCM in Paarden Eiland, where they were fully examined, counted and inventorised. Africa and his wife, Anthea, co-operated with the police and the two of them went into police protection almost immediately after his release on bail.
As a consequence thereof, the police were able to obtain firsthand knowledge of the way in which the exporting arm of the alleged enterprise operated and, in particular, they were able to review a welter of documentation relating to the export activities of Syroun and Rapitrade, companies in respect whereof Africa was registered as the sole shareholder and director. The police investigation revealed that at the time there were at least four containers on the high seas destined for Hong Kong.
The authorities were able to head off the containers as the vessel transporting them passed through the port of Singapore and the containers were eventually returned to South Africa, where they arrived in October and were inspected by the police and officials from MCM. They also noted that the container was packed in the manner already described, with the pallets containing abalone, having been loaded first, and the pallets with only pilchards bringing up the rear, as it were.
Whilst on bail, Africa agreed to co-operate with the police on condition that he was granted immunity from prosecution. His disclosure to the police no doubt enabled them to further their investigation in regard to the activities of this particular smuggling certificate, and it would seem that there were further arrests as a consequence of this co-operation.
At the end of the day, the State presented the evidence of Africa, who was duly warned in terms of Section of the CPA, as its primary accomplice witness. On 6 October , the police swooped on residential premises located at 33 Kendal Road, Durbanville which, by outward appearance, was an ordinary suburban house in a quiet neighbourhood in the Northern suburbs of the Cape Peninsula.
In a double garage adjoining the house, they came upon an abalone processing facility in full operation. Some of those who were arrested at Kendal Road, gave evidence on behalf of the State, having been warned in terms of Section of the CPA. Principal among these, was Jaco Botha, who explained the workings of the operation to the Court in detail.
The other witnesses were Percy Clack and Harold Bauchop, both of whom worked at the facility and were similarly warned in terms of Section There an ice-making business was being conducted by one Andrew Theunissen aka AJ. The business incorporated a number of large portable freezer rooms which were rented out to clients for self-storage of their product. According to Theunissen, one such storage room was used by Jaco Botha and a person he called Koos, and who Theunissen later pointed out in court as accused 5, Johannes Emil Liebenberg , who stored, what Theunissen was led to believe, to be, fish contained in large Styrofoam boxes.
They are depicted on certain of the photographs contained in Exhibit J. Accused 1, Phillip Miller, was arrested on 14 November at the smallholding on which he then resided near Paarl. During the course of their ongoing investigations in , the police had noticed a pattern of criminal conduct in relation to the export of abalone and sought permission from their superiors for the registration of a special project for investigation. The provisions of Section 2 1 e of POCA, the remaining offence under that Act with which all of the accused are charged, are to the following effect:.
Offences: 1 Any person who-. As part of its opening address in terms of Section 1 of the CPA , the State placed before the Court an organogram depicting what it alleged to be the structure of the unlawful enterprise which fell foul of the provisions of POCA.
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The structure reflects Richard Chao, Salvin Africa and accused 1 , Phillip Miller, as a triumvirate heading up the enterprise. Beneath that it showed two distinct lines of supply of product to the enterprise. On the one hand there is the Rapitrade line, which is said to have been managed by accused 2, 4 and 5 in contravention of Section 2 1 f of POCA, and on the other hand there is the Syroun line, which was said to have been similarly managed by accused 3 and Ku. In the ruling on the Section application we found that Richard Chao was obviously the manager of the enterprise and that none of accused 1 to 5 could have been found to have managed the enterprise in the sense in which that verb has been interpreted by our courts.
We found also that it did not appear to be in issue at that stage of the proceedings, that an enterprise as defined in Section 1 of POCA had been conducted during the period to This fact was later confirmed when accused 4 took the witness stand and described his working relationship with Chao and Africa. The import of his evidence was that Chao was in effective control of the enterprise, whose principal business it was to export abalone overseas.
Nor did we understand any of the other counsel to take issue therewith. I shall return to this issue later in the judgment. Having regard to the totality of the evidence adduced by the State, as also the testimony of accused 4 and his frank concessions under cross-examination, we are satisfied that the State has proved beyond reasonable doubt the existence of the enterprise contended for. What really is in issue in this matter, is whether the State has established the involvement of accused 1 , 2, 3, 5 and 6 therein, and in the case of accused 4, whether his involvement was lawful as he claimed it to be.
I shall revert to a discussion of the import of the POCA charges later in this judgment, but firstly some foundational principles in relation to the evaluation of the evidence need to be discussed. It is trite that the State bears the onus to establish the guilt of each of the accused beyond reasonable doubt. This does not mean beyond any doubt, but on the other hand if any of the accused puts up a defence which is found to be reasonably possibly true in the circumstances, he is entitled to be acquitted.
I shall hereinafter refer to all pronouns in the masculine, given that the accused are all male. The process of reasoning which is appropriate to the application of that test in any particular case, will depend on the nature of the evidence which the court has before it. What must be borne in mind, however, is that the conclusion which is reached, whether it be to convict or to acquit, must account for all of the evidence.
Some of the evidence might found to be false, some of it might found to be unreliable and some of it might be found to be only possibly false or unreliable, but none of it may simply be ignored. In applying inferential reasoning the Court is required to have regard to the cumulative effect of all the evidence. It is not permissible to take the evidence piece by piece, evaluate it in isolation and accept or reject it.
It must carefully weigh the cumulative effect of all of them together, and it is only after it has done so, that the accused is entitled to the benefit of any reasonable doubt which it may have. One must be careful not to confuse inference with assumption. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish… But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left, is mere speculation or conjecture.
As mentioned earlier in this judgment, the State has relied heavily on the evidence of accomplice witnesses, who have been cautioned in terms of Section of the CPA. The mere fact that those witnesses are accomplices, irrespective of their veracity and demeanour in the witness box, requires the Court to approach the evidence with caution. It is, therefore, important to look where possible for corroboration of the evidence of such witnesses.
He, like the other accomplice, still has a possible motive to tell lies. The breaking down of a body of evidence into its component parts, is obviously a useful aid to a proper understanding and evaluation of it, but in doing so, one must guard against a tendency to focus too intently upon the separate and individual parts of what is, after all, a mosaic of proof. Doubts about one aspect of the evidence led in a trial, may arise when that aspect is viewed in isolation.
Those doubts may be set at rest when it is evaluated again, together with all the other available evidence. That is not to say that a broad and indulgent approach is appropriate when evaluating evidence. Far from it. There is no substitute for a detailed and critical examination of each and every component in a body of evidence, but once that has been done, it is necessary to step back a pace and consider the mosaic as a whole.
If that is not done, one may fail to see the wood for the trees.
Finally, it is necessary to refer to two important principles relating to the manner in which the accused conducted their defences, which may have potentially negative consequences for them. The first is the failure to testify. An accused person has a constitutional right under Section 35 3 h to remain silent in criminal proceedings. This means that there is neither a duty to testify nor may an accused be compelled to take the witness stand. However, that right, when exercised, is not free of consequences. If there is evidence calling for an answer, and an accused person chooses to remain silent in the face of such evidence, a court may well be entitled to conclude that the evidence is sufficient, in the absent of an explanation, to prove the guilt of the accused.
Whether such a conclusion is justified will depend on the weight of the evidence.
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Once the prosecution has produced evidence sufficient to establish a prima facie case, an accused who fails to produce evidence to rebut that case is at risk. The failure to testify does not relieve the prosecution of its duty to prove guilt beyond reasonable doubt. The fact that an accused has to make such an election is not a breach of the right to silence. If the right to silence were to be so interpreted it would destroy the fundamental nature of our adversarial system of criminal justice.
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A second issue which must be considered in the evaluation of the evidence, is the failure of an accused to challenge by way of cross-examination evidence presented by the State or one of the other accused. It should also be made clear not only that the evidence is to be challenged, but also how it is to be challenged. However, before dealing with the evidence in which Africa implicates the accused, it would be useful to consider some background facts and circumstances and his role in the enterprise. Africa is an intelligent person, who comes from the poor working-class neighbourhood of Parkwood on the Cape Flats.
Africa appears to have risen above the adversity around him and obtained a matric pass from his local high school.