The trial of two men accused of plotting to illegally harvest perlemoen from Bird Island will proceed after the Makhanda high court overturned a magistrate’s decision to acquit them on the basis of alleged unlawful entrapment.
Judge Jannie Eksteen ruled that the regional court had erred when it found that evidence obtained during an undercover operation — including recorded meetings — was inadmissible.
The earlier ruling had led to the discharge of Raymond Taylor and Roland Hudson in terms of Section 174 of the Criminal Procedure Act at the close of the state’s case.
Taylor and Hudson had faced multiple charges, among them contravention of the Prevention of Organised Crime Act and the Prevention and Combating of Corrupt Activities Act.
The charges stem from an alleged long-term plan to poach perlemoen from Bird Island — a Marine Protected Area that forms part of the Addo Elephant National Park off the coast of Gqeberha — and to do so through a corrupt scheme involving SA National Parks (SANParks) officials.
According to the state, the case began on February 26 2022 when an Addo field ranger received a WhatsApp message from an unknown number.
The sender, identifying himself as “Ray”, said he had obtained the ranger’s number from a mutual acquaintance.
A second message followed on March 1, in which Ray suggested they meet to discuss an idea that could work well for them both.
The ranger, aware that diving within the protected area was prohibited, reported the approach to his superior, Rob Milne.
Milne instructed him to play along if contacted again and keep him updated.
Communications continued, and on March 24 2022 the ranger met Taylor — identified by Dark Water Ops operative Nicky Erasmus — at the Silver Cloud Spur in Newton Park.
The Directorate for Priority Crime Investigation (DPCI) monitored the meeting from outside, and the discussion was secretly recorded.
A second meeting took place on April 12 2022 at the Galaxy Grill at the Moffett-on-Main Shopping Centre.
This time the ranger was accompanied by SANParks environmental crimes investigation unit official Willie Fredericks.
Taylor again attended alone, saying his partner had fallen ill.
During this meeting, Taylor handed the ranger a parcel later found to allegedly contain R20,000, which was immediately turned over to the DPCI.
A third meeting followed on May 6 2022 at the same restaurant — this time with Hudson present.
Another parcel containing R20,000 was allegedly handed over. All three meetings were recorded.
The evidence led to the arrest of Taylor and Hudson.
At trial, defence counsel objected to the recordings and related evidence, arguing they resulted from an unauthorised and unlawful undercover operation that went beyond merely providing an opportunity to commit an offence.
A trial-within-a-trial was held.
After hearing six state witnesses — with neither accused testifying — the magistrate ruled the evidence inadmissible, finding that approval from the DPP should have been obtained beforehand and that the operation had improperly created the opportunity for the alleged offences.
This led to the pair being acquitted on all charges at the end of the state’s case.
The DPP appealed, and Eksteen disagreed with the magistrate’s reasoning.
He found that the magistrate had mischaracterised the operation as a “trap” and had incorrectly concluded that the SANParks officials were the ones driving the criminal conduct.
“The initiative to commit the crimes emanated from the inception, from [Taylor], and the magistrate has made no factual finding of any inducement or encouragement offered by the SANParks officials,” the judge said.
He said Hudson’s alleged role was based solely on his attendance at the final meeting at Taylor’s request.
Eksteen said Section 252A of the Criminal Procedure Act permitted the use of traps and undercover operations, provided they did not exceed legislated limits.
The evidence showed no inducement by law-enforcement officials, he found.
While it was common cause that no prior DPP authority had been obtained, the judge held that the magistrate’s conclusion — that this alone rendered the evidence inadmissible — was flawed.
As a result, he ruled that the magistrate had erred in law and that the state’s appeal must succeed.
Eksteen set aside both the Section 174 discharge and the magistrate’s ruling in the trial-within-a-trial.
He ordered that the recordings and all evidence from the three respective meetings be admitted.
The matter has been remitted to the regional court to reopen the trial and determine the accused’s guilt “afresh” after considering all admissible evidence.
The Herald
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