Durban - The infiltration by a police officer of a syndicate which preyed on truck drivers stopped on the N3, beating them up to steal expensive truck wheels, has been found to be legal by the Supreme Court of Appeal, even though he participated in crimes in which members of the public were at risk.
During the course of the undercover operation, drivers were killed and one woman passenger was raped, but the policeman continued with his investigation. He was not involved in the violence.
The appeal before the court was lodged by three members of the syndicate. The kingpin, Chatsworth resident Shamdutt Singh, and Lelelani Mbanjwa appealed against their convictions on charges of racketeering, corruption, robbery, kidnapping and money laundering and their respective effective sentences of 35 years and 30 years, while a third accused, Mazibongwe Ngobe, appealed against his conviction of robbery and sentence of 30 years.
The men were convicted in 2010 by Durban High Court Judge Ron McLaren on the evidence gathered by a Sergeant Smith, who went undercover as “Darryl”, infiltrating the gang and acting as one of them in six truck hijackings during which video cameras and tracking devices were activated.
The main challenge to the evidence was that Smith and the police had been present during the commission of some of the crimes and had not put a stop to them.
But a judgment penned by supreme court Judge Zukisa Tshiqi, with four judges concurring, said the operation was aimed at protecting the general public. The judges agreed with the finding of Judge McLaren that the benefit outweighed any risks.
According to evidence in the initial trial, the undercover operation - sanctioned by the director of public prosecutions - was necessary because the investigation was floundering. This was because the crimes occurred randomly, usually in the evenings, anywhere on a long stretch on the N3.
Although spotters, guards and robbers had been arrested, it was difficult to secure arrests and convictions of the main role-players because they were not present at the scenes of crimes.
The crimes were becoming more violent, with the murder of two drivers and the rape of a woman passenger.
Smith’s main role in the syndicate was to transport the wheels removed from the trucks to a specific address, and he did not initiate any of the criminal activities.
Judge Tshiqi said Smith always disclosed his movements to the investigations team and was “very cautious”.
“It is alleged that the conduct of the state was detrimental to the administration of justice in that it continued with an operation while aware of a real possibility of further public exposure to violence.
“The use of undercover agents is long-established and acceptable in our constitutional democracy. What has to be balanced is a respect for the Bill of Rights and respect for judicial process,” the judge said. “The State says the basis of the operation was to protect the public. The actions of the syndicate not only exposed victims to violent conduct but also had huge implications for the economy because of transportation delays.”
The judge said public opinion was a relevant consideration in this matter, “and it is unacceptable to the public when courts exclude evidence indicating guilt, particularly in the current state of endemic crime”.
“Had Smith not infiltrated the syndicate, the probabilities are that it would have continued. The public would balk at the idea that law enforcement agencies failed to act against an organised crime syndicate because of the fear there may be a danger to the pubic. Indeed the reaction would be one of shock, fury and outrage,” she said, ruling that the convictions must stand.
After a concession by the State that the sentences could be considered harsh, she amended their cumulative affect to 20 years for both Singh and Mbanjwa and 15 years for Ngobe.
The Mercury