Tiry and Others v S (52/2018; 149/2018) [2020] ZASCA 137; [2021] 1 All SA 80 (SCA); 2021 (1) SACR 349 (SCA) (29 October 2020)

Tiry and Others v S (52/2018; 149/2018) [2020] ZASCA 137; [2021] 1 All SA 80 (SCA); 2021 (1) SACR 349 (SCA) (29 October 2020)

The Supreme Court of Appeal found that the convictions under both s 2(1)(e) and s 2(1)(f) of POCA for the same conduct may amount to impermissible duplication, but followed precedent allowing both charges. The satellite tracking reports were admissible as factual evidence, not hearsay, and their reliability was established through expert testimony and corroboration. The irregularity in the search and seizure warrant was technical and did not warrant exclusion of evidence, as its admission did not render the trial unfair or harm the administration of justice. The trial judge's conduct, while sometimes impatient, did not deprive the appellants of a fair trial. The sentences imposed by the...

Citation
[2020] ZASCA 137
Parties
Appellant: Nazier Ahmed Tiry; Appellant: Patricia Dudu Nono Sangweni; Appellant: Sipho Abram Tshabalala; Appellant: Sandile Anthony Nyamusa; Appellant: Msoleni Goodenough Mthethwa; Appellant: Qhekeka Alfred Buthelezi; Appellant: Veli Maxwell Sithole; Appellant: Solomon Nkosi; Appellant: Joseph Moisi; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 October 2020
Case Number
52/2018; 149/2018
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence From the Free State Division of the High Court
Outcome
Appeal partially upheld. Convictions and sentences on specified counts set aside; sentences reduced for certain appellants.
Judges
Wallis, Makgoka, Plasket
Legal Topics
Racketeering, Prevention of Organised Crime Act, Theft, Admissibility of Evidence, Search and Seizure, Minimum Sentencing
Criminal Law Civil Procedure Racketeering Prevention of Organised Crime Act Theft Admissibility of Evidence Search and Seizure Minimum Sentencing

Case Brief

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Parties

Nazier Ahmed Tiry

Appellant

Patricia Dudu Nono Sangweni

Appellant

Sipho Abram Tshabalala

Appellant

Sandile Anthony Nyamusa

Appellant

Msoleni Goodenough Mthethwa

Appellant

Qhekeka Alfred Buthelezi

Appellant

Veli Maxwell Sithole

Appellant

Solomon Nkosi

Appellant

Joseph Moisi

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence From the Free State Division of the High Court

Legal Issues

  1. 1 Whether the convictions under both s 2(1)(e) and s 2(1)(f) of POCA amount to impermissible duplication of convictions.
  2. 2 Whether the satellite tracking reports constituted admissible evidence or hearsay.
  3. 3 Whether the irregularly issued search and seizure warrant rendered the trial unfair or required exclusion of evidence.

Ratio Decidendi

The Supreme Court of Appeal found that the convictions under both s 2(1)(e) and s 2(1)(f) of POCA for the same conduct may amount to impermissible duplication, but followed precedent allowing both charges. The satellite tracking reports were admissible as factual evidence, not hearsay, and their reliability was established through expert testimony and corroboration. The irregularity in the search and seizure warrant was technical and did not warrant exclusion of evidence, as its admission did not render the trial unfair or harm the administration of justice. The trial judge's conduct, while sometimes impatient, did not deprive the appellants of a fair trial. The sentences imposed by the...

Court Disposition

Appeal partially upheld. Convictions and sentences on specified counts set aside; sentences reduced for certain appellants.

Orders

  • Convictions and sentences for appellants 1 and 2 (Tiry and Sangweni) on counts 4, 8, 19, 20, 22, 23, 25, 30, 34, 35, 42, 43 and 45 are set aside; count 33 conviction altered to attempted theft.
  • Convictions for appellant 3 (Tshabalala) on counts 2, 34 and 35 are set aside.