CHAPTER 4

THE EFFECTIVENESS OR OTHERWISE OF ILLEGAL DIAMOND BUYING (IDB) PROVISIONS AND RELATED MATTERS.

4.A          Written and oral evidence received by the Commission

4.1                Mr M Katz, in submission 51, is of the opinion that the SAPS has become corrupt.  The SAPS sets the IDB sting operations in order to collect rewards.  He says that he could not see why State resources should be used to protect private businesses.  He is of the opinion that an additional 30 full-time potentially corrupt inspectors would be needed, just to call on the existing licenses and even if these people were of the highest integrity, they do not have the specialised knowledge required to do the job effectively.  He enquires as to who would finance this burden.

4.2                In submission 9, Mr E Blom expresses the view that the IDB laws should remain in place in South Africa to protect the local industry from theft and to ensure a stable reliable future.  However, the current situation allows for abuse and irregularities.  At a Trade Practise meeting (a Sub Committee of the Diamond Board) early in 1994, it was decided to propose to the Law Commission that either a senior Magistrate or Judge upon prima facie evidence being presented to them should first approve all diamond traps.  The Law Commission accepted this, but because of events both in the country and the industry, this was never acted upon.

4.3                In submission 11, Mr G D Brown accuses De Beers of involvement in the operations of the SAPS.  He also refers to abuse of the trapping system by the SAPS.

4.4                Dr V B Sibiya, Chief Executive Officer of the Diamond Board, in submission 73, is of the opinion that confiscated diamonds should be controlled by the Diamond Board and be sold by tender.

4.5                According to Mr M J Ball, a licenced diamond dealer, the laws governing dealing in natural diamonds are protective, selective and favouring towards the mining companies. There is no sound reason to keep these laws in place. Free marketing and trade in natural diamonds are suggested, including sale of natural diamonds to the public - submission 7.

4.6                Concerning the concept of illegal diamond buying, Trans Hex is of the opinion that the entire concept, not to mention the “crime”, should be scrapped.  Stealing a diamond should, of course, remain a crime, just like stealing anything else, but buying and selling uncut diamonds should be as free and easy and as open to any one as buying and selling anything else - submission 75.

4.7                The Master Diamond Cutters Association, in submission 56, maintains that the Association does not have a prima facie problem with sections 19, 20 and 21 of the Diamonds Act, but do have a problem with the modus operandi employed by the SAPS in the enforcement of these provisions.  The Association submits that the implementation of the entrapment system has, and is in many instances, being abused by the SAPS.  This submission has been supported by the South African Law Commission in that it has recorded, inter alia, that the trapping system should be retained in South Africa, subject to greater judicial control.  It is submitted that the present legislation regulating and controlling the setting of traps is often abused and it could be stated that it is a procedure which is used to have unsuspecting foreigners and South Africans being enticed into committing an offence which is unique to South Africa.

In view of the above, it is proposed to the Commission that consideration be given to recommending that before the SAPS can embark on an entrapment of a suspect, it be necessary to obtain the consent of a Judge of the High Court, who the Master Diamond Cutters Association believes would only grant the authority to embark on entrapment provided he is satisfied that prima facie evidence in form of a sworn affidavit from a reliable and credible witness exists that the party in question is or has been actively engaged in IDB.  The above views are shared by the Rough Diamond Dealers’ Association in submission 68.

4.8                The abuse of entrapment procedure was criticised by Mr L N Duchen in verbal evidence before the Commission - submission 35.  Mr Duchen is a licensed diamond dealer, manufacturer and exporter of diamonds in South Africa with licensed premises.  He alleges that he had a personal experience in SAPS abuse of the entrapment procedure.  Whilst conducting a legal diamond deal on his premises, involving the buying of diamonds, the SAPS entered the premises.  He was arrested and R55 000 and some equipment were confiscated by the Police.  He was later released on bail.  Court proceedings commenced and he was acquitted two years later in terms of section 174 of the Criminal Procedure Act of 1977.  The Court ordered the SAPS to return the money and the items confiscated.  He was informed by the SAPS that only R50 000 was confiscated and not R55 000.  It was alleged by the SAPS that the particular police station was robbed and the R50 000 was also stolen.  Mr Duchen maintains that the above is an example of total abuse of entrapment as the deal was legal and conducted on legalised premises.

4.9                The Diamond Club, in submission 31, considers that -

                  temptation can lead to innocent persons being trapped; and

                  the reward system can lead to abuse and encourage entrapment of otherwise innocent persons.

The Diamond Club, therefore, submits that -

                  the reward system be dropped; and

                  a warrant be obtained from a magistrate before entrapment is used in the future, such warrant being based on reasonable suspicion or a prima facie case against the suspect.

4.10            Mr A M Sher maintains, submission 72, that a main factor which has prevented South Africa from becoming a major diamond market is the entrapment laws.  The law enforcement procedures make foreigners very uncomfortable when doing business here in comparison to the relaxed environment in other trading centres around the world which are not encumbered by antiquated restrictive laws.  Most of these laws were introduced before the turn of the century in order to protect the large mining interests.  In modern society it is wrong to expect the public to bear the financial burden for protecting the producers’ interests.  The policing of their operations should be carried out by the producers themselves and not by the SAPS whose policemen can be put to better use in curbing serious crime.  In his opinion, it is far more beneficial for the country to introduce systems whereby it can derive income from simple levies instead of trying to enforce regulations and taxations by means of expensive policing which in any event is ineffective because of the nature of the commodity being mined and traded with.

4.11            Mr L P Khola, submission 39, calls for the abolition of the entrapment system and that all arrested people due to entrapment should be released and their charges and records be nullified.  According to Mr Khola, De Beers is involved in the buying of diamonds from South Africa, smuggled into Lesotho, with the full knowledge of the Diamond Board and the SAPS.  The Federation regards Police entrapment of illegal diamond buyers as illegal itself in that the persons whose services are used by the SAPS in the process of trapping are non-licenced holders and also illegally possess diamonds.  The Federation, therefore, believes that the SAPS and these informers are also guilty of an offence of illegal possession of diamonds.  Entrapment entices innocent people to become involved in illegal dealings in diamonds.

4.12            According to Sir A Grose, the Group Executive, Diamond Security, of De Beers, in submission 17, governments have legislated against the uncontrolled trafficking of uncut diamonds and that they have done so with the aim of minimising the risk of -

                  the loss to government of revenue in the form of royalties and taxes, particularly where it may itself be a producer, or where a government relies on income derived from the sale of legally produced diamonds;

                  undermining the stability of the diamond market and the consequent effect on the livelihoods of those involved throughout the diamond industry;

                  theft of the property of an individual or company as for any other possession but one which represents a valuable national asset;

                  the squandering of reserves resulting from illegal diamond mining encouraged by illegal diamond trafficking;

                  the theft of diamonds from samples on prospecting sites which might lower the potential value of the deposit and influence decisions to mine it;

                  a culture of theft developing among individuals who might be coerced into crime simply because they happen to be employed in the diamond business; and

                  social disruption among the families and communities affected by the resulting lawlessness.

In the opinion of De Beers the pilfering of rough uncut diamonds and the subsequent secret trading of these diamonds have been a problem ever since this valuable gemstone was first discovered.  However in recent years diamond theft and illicit diamond trafficking have become big business, attracting the interest of powerful local and international syndicates.  The potentially large profits made by such criminals from their activities may be used to bribe and corrupt officials and others.  In mining areas, employees are at risk of intimidation from these criminals, leading to detrimental social consequences on the individuals who fall under their influence, and on whole communities.

De Beers argues that the effect of uncut diamonds being smuggled indirectly and clandestinely to the world’s diamond centres rather than passing through formal channels, is to threaten the stability of the diamond market.  If allowed to get out of hand it can affect diamond prices throughout the world.  The consequences of this for the individual digger or diamond dealer are bad enough but for large companies, governments and the employees of diamond producers such results are disastrous.  Theft of diamonds and the destabilisation of the diamond market have repercussions beyond the industry itself:  not only can it cause mines to go out of business but it can drastically reduce the potential revenue to the State from royalties, taxes and export duties, while leading to serious unemployment.

De Beers contends that in comparing the existing legislation of various major diamond producing countries, three different approaches can be identified:  ‘comprehensive control’; ‘control of mining areas’ and ‘control of marketing’.  Namibia, South Africa, Botswana and, more recently, Angola fall into the ‘comprehensive control’ category.  These countries have comprehensive systems of diamond security legislation with provisions extending from mining, through possession and dealing, to export.  Australia is the only country in the ‘control of mining area’ category.  Its legislation is primarily aimed at the security of production within the mining area.  Sierra Leone and The Democratic Republic of Congo fall into the ‘control of marketing’ category.  Their legislation aims to control the marketing of uncut diamonds rather than the production.

The countries which have been most successful in ensuring effective diamond security, according to De Beers, are those in the ‘comprehensive control’ and ‘control of mining areas’ categories.  The exception is Angola, which is presently not able to enforce its comprehensive legislation particularly with respect to the control of the mining areas.  Those in the ‘control of marketing’ category have failed in the prevention of illegal dealing and export of uncut diamonds.  The principal reason for this is the inherent impracticability of control at the marketing stage.  The high value and small size of uncut diamonds makes it extremely difficult to police their exchange or export.

De Beers submits that the controls established by the Diamonds Act and associated legislation are essential to the optimisation of the diamond industry and argues strongly for the retention of such legislation.  The basic Act was updated by amendments to certain provisions in 1988, 1989 and 1991.  Proposals by De Beers for minor amendments to the Diamonds Act cover the following -

                  additional definitions to include marine diamond mining;

                  an amendment to section 18 to clarify the legality of possessing diamonds obtained outside South Africa;

                  amendments to section 25A (search of persons and things) to reflect marine diamond mining activities and the inclusion of the right to search individuals by X-ray (permissible in terms of the Public Health Amendment Act of 1971 and section 32(I) of the Hazardous Substances Act of 1973 and supervised by the Department of Health); and

                  a substantial increase in the penalties for any person convicted of an offence under certain sections of the Act to a fine not exceeding R1 million, or to imprisonment for a period not exceeding twenty years.

De Beers mentions that it sometimes argued that the liberalisation of the diamond possession laws (the abolition of all illicit diamond trafficking laws, the repeal of the laws making it necessary to hold a licence in order to carry out diamond trading, and so on) would lead to establishing Johannesburg as a centre for diamond trading on a scale similar to Antwerp or Tel Aviv, where diamonds are openly and freely traded and where government supports such diamond activity.  Belgium and Israel, however, have cutting and polishing industries but are not diamond producing countries.  Such a proposal must be treated with great caution when applied to a country which is also a producer.  Here, local demand would almost certainly lead to more theft from the producers and the by-passing of tax and levies imposed to ensure that government and the country benefit from such an expansion of its diamond industry.  It would almost certainly affect the fine balance and stability so necessary to ensure the future of the industry.  As a major diamond producer, South Africa is entitled to retain legislation which secures those diamonds in the greater overall interest of the community, for the benefit of mineral right holders and for the country and region as a whole.

According to De Beers there is absolutely no reason why Johannesburg should not become such a diamond trading centre with all the present laws remaining intact other than perhaps its geographical location and the need to review some of the existing import/export regulations and value-added tax requirements.  It is interesting to note that the proponents of Johannesburg as a trading centre for diamonds have been careful to withhold the fact that imported diamonds are subject to value-added tax at the current rate of 14% on the value of the goods plus 10%, which would tend to mitigate against the proposal.

De Beers argues that as it is essential to have a comprehensive framework of legislation to effect diamond control, so is it incumbent upon the producers themselves to adopt stringent security measures to protect the product and discourage theft.  Many of the mines in South Africa employ large security departments with highly trained and skilled personnel, advanced systems and procedures, sophisticated technology incorporating video cameras, and infra-red detection devices.  They also have personnel control centres where access are controlled and body and low level X-ray searching are carried out together with strict freight and baggage handling procedures to prevent diamond smuggling.  These measures are unfortunately necessary to prevent theft and ensure maximum revenues for government and investors.  While a company like De Beers may be able to direct such large sums towards improved diamond security measures, small producers such as individual diggers rely totally on the protection of the law in securing their production of diamonds, as do marginal medium sized producers for whom affordability is likewise a problem.  Indeed any dilution of the law would probably adversely affect small mines more than it would De Beers.

De Beers reasons that ensuring that the right legislative framework and diamond security measures are in place is only part of the battle.  It is also necessary, of course, to ensure that enforcement is effective involving both the SAPS operations and Court procedures.  It is important that the Courts impose penalties which are sufficiently severe to act as a deterrent to other would-be offenders and to discourage speculators from abroad.  South Africa, Namibia and Botswana have special Diamond Security Branches in their police forces.  Australia has a special Gold Theft branch which presently deals with diamond theft and improper possession and trading.  However they are about to establish a special Diamond Branch in the near future.  Criticism is sometimes levelled at the SAPS for being ineffective and an unnecessary drain on taxpayers’ money.  While the rationale for the existence of such a special unit is not essentially an economic one, it is worthy of note that the annual operating costs of the SAPS during 1996 were of the order of R30 million and the value of rough diamonds and unwrought gold and bullion recovered was approximately R20 million.  Recoveries in previous years have been even higher.

According to De Beers a controversial subject relating to the enforcement of the diamond security laws is the practice of “trapping” suspects.  With such large sums of money at stake and the inevitable secrecy which surrounds illicit diamond dealing, the SAPS is forced to use special methods to reach the top echelons of the syndicates and to apprehend offenders.  Such methods often involve the use of informers and the trapping system using people as decoys known as “traps”.  To protect against abuse, the SAPS has developed a Code of Conduct under which such operations have to be authorised and conducted including the provision of evidence that an individual is a bona fide suspect.  In this respect, any attempt at incitement or enticement is strictly forbidden.  The Courts themselves provide a further safeguard in judging the moral acceptability involved and by taking cognisance of the fairness of and justification for the trap when sentencing.  Nevertheless, a number of concerns still remain in the public’s mind regarding the trapping system and there is of course a moral dimension to it.  The whole system of trapping was reviewed by the SA Law Commission on behalf of the then Minister of Justice in 1994.  This review resulted in a number of recommendations which were incorporated in the Criminal Procedure Second Amendment Act of 1996.  Where criticism is levelled at the trapping system, De Beers submits that it is the manner in which trapping has sometimes been conducted, rather than the system itself which can create a perception of injustice.  In essence, it is necessary to ensure that the moral issues are recognised, and that the trap must not be set to tempt or entice an otherwise innocent person with no previous record of illicit diamond trafficking, but rather must be fairly set to obtain the evidence necessary to secure a conviction against a person who is known or believed to be engaged in the business of illicit diamond trafficking.  De Beers, therefore, supports the retention of legislative provisions which relate to trapping in the belief that the practice, properly regulated, has an essential and legitimate role to play in the fight against diamond theft.  The scale of the problem justifies the moral principle of the law, truly innocent people are not prejudiced.

Another moral question is that of the protection of the individual against improper seizure, arrest or search.  Criticism is also often levelled at security officers and the SAPS in this respect and at present no safeguards for innocent members of the public exist.  It may be, according to De Beers, appropriate for members of the Law Commission to investigate this aspect of the enforcement of the laws surrounding diamond security.

Some misconceptions exist regarding the payment of rewards to informers in cases relating to diamond laws.  There is a common belief that rewards are paid for securing convictions and as such serve as an incentive for informers.  This is then used as an important element in the argument against the use of the trapping system.  In fact, in the case of diamonds the system of paying a reward on conviction is not used.  The reward, according to De Beers, is not for securing the conviction of illicit diamond dealers, it is a reward for returning stolen diamonds to their lawful owner.

Rewards for informers in diamonds/precious metals related cases in South Africa are regulated by legislation under section 3(1) of the Finance and Financial Adjustments Act Consolidated Act of 1977.  This section states that “any person upon whose information any precious stones, or any money paid in respect of the illicit purchase of any precious stones, is seized, may be paid out of the revenues accruing to the State from the sale of such precious stones or from the seizure of such money, a monetary reward not exceeding one third of the amount realised by such sale or such money seized….”.  Such rewards are only paid at the conclusion of criminal proceedings (including appeals, etc) and section 3 of the said Act is only involved after a forfeiture of goods and not after a conviction.  Indeed it may be paid after an acquittal, provided that the conditions regarding recovery of diamonds or moneys paid are met.  Nevertheless, there are undoubtedly misunderstandings and certain misapprehensions surrounding the whole issue of the payment of rewards in diamond related cases.  This, according to De Beers, may be another area in which an investigation by the Law Commission may be appropriate.

According to De Beers, it is worth noting the plans announced by the Government to reduce the number of airports in South Africa which are open to international flights.  Similarly, there will be a clampdown on the number of border posts open to commercial trading.  Both these measures should go some way to reducing the ease with which illicit diamonds can presently be moved out of and into South Africa.  De Beers also submits that any repeal or dilution of the provisions of the existing legislation relating to the control and regulation of diamond mining and trading in South Africa would seriously damage individuals, their communities and the environment as well as threatening an important natural resource.  It would also certainly result in the increased theft of an individual’s or company’s property, namely the uncut diamond from an area over which mining rights have been negotiated with a government.  If a country’s diamond security laws are weak this undermines its diamond producing industry, saps the State’s revenue and foreign earnings, increases theft of someone else’s property, reduces employment in the industry, tempts employees to become involved in diamond theft and lines the pockets of a small number of influential dealers within and outside the producing countries.  Such costs to society will be far greater than any possible benefit from greater perceived liberties associated with more liberal diamond security legislation.

4.13            Helam Mining (Pty) Ltd, in submission 46, maintains that illegal diamond sellers, namely own mine workers, are being detained by the SAPS, only to be released on bail and never to be seen again.  Diamond concentrate produced at the mine’s plant is sometimes stolen.  The concentrate has the potential to contain a very valuable diamond.  According to the mine persons were not charged by the State Prosecutor as it is contended that the value of the concentrate cannot be determined.  The Company made a plea for the retention of legislation combating illicit diamond buying.

4.14            Proval, an undertaking which was previously appointed as GDV for the Republic of South Africa, in submission 65, reports that according to the SAPS more than 50% of the 570 cases concerning contraventions of the Diamonds Act dealt with during 1996 involved persons who were already in possession of diamonds and in many such cases, accused persons were attempting to sell the diamonds which were in their possession.  It has also been reported that in some 280 cases the Courts during 1996 declared diamonds worth R6,5 million, which were seized during police investigations, to be forfeited to the State.  If these diamonds had not been intercepted by the SAPS, they would have been sold by the illegal diamond sellers.

In order to reduce illicit diamond buying and other irregularities in the diamond industry, Proval suggests that a Southern African Diamond Protection Committee should be formed involving the Southern African Development Community (SADC), organisations of government and associated institutions.  In the opinion of Proval a single forum which involves all stakeholders in the diamond industry could be very effective in curbing irregularities and promoting the diamond industry as a whole.

4.15            Ram International Transport (Pty) Ltd, is of the opinion that security is a prime consideration with the clearing and forwarding of diamonds world wide – submission 66.  The issue of security can be divided into two major categories, protection from theft and/or loss, and protection of the national asset.  Diamonds are considered a unique commodity as no two diamonds are alike and a small quantity weighing relatively little may be worth a considerable amount of money.  Accordingly these goods may be considered high risk of the first order.

An additional complication, according to Ram, is the fact that only an expert is able to assess, identify and value diamonds.  Accordingly, whilst a Customs official might be able to easily recognise a video camera and the value thereof, in the possession of a person or cargo wishing to enter the Republic, the same Customs official would be none the wiser if the person were carrying a piece of glass or an exceptionally valuable diamond.

At present, according to Ram, the Diamond Board employs a sufficient number of highly qualified diamond personnel whose main duty is the checking, stamping and sealing of diamond exports.  These inspectors, when handling the paper work regarding imports on behalf of the Customs and Excise officials, open the sealed parcel and check the cartage and the true value requested by the Customs officials on the prescribed forms completed at Customs at the Johannesburg International Airport.  Further details of the proposals by Ram will be found in Chapter 5, under paragraph 5.19 dealing with imports.

4.16            The SAPS is responsible for the combating of the illegal possession of and dealing in unpolished diamonds - submission 71.  Objective, conventional and unconventional investigations are applied.  The latter include infiltration of syndicates and trapping.  Trapping can be by means of buying from the suspect or selling to the suspect, and is controlled by departmental instructions and section 252A of the Criminal Procedure Act of 1977.  The main purpose of section 252A of the aforementioned Act is to regulate the setting of traps and the engaging in undercover operations; to determine the circumstances under which evidence so obtained will be admissible as evidence; and to provide for matters incidental thereto.  According to its policy, the SAPS does not entice or incite persons to purchase/sell unpolished diamonds, and does not peddle with unpolished diamonds.  Police actions are only instituted against persons under reasonable suspicion.

In oral evidence, Senior Superintendent P J Otto of the SAPS states the following:-

                  He is concerned about the movement of diamonds across international boarders (cross-border smuggling).

                  A possible remedy to the situation is to liaise and form a pact with other countries, and have a joint control over cross-border smuggling of diamonds.

                  Senior Superintendent Otto also suggests –

                  the introduction of stricter and harsher penalties and/or fines;

                  fines must match the value of the diamonds or the value of the actual transaction plus confiscation of the diamonds;

                  the source (country of origin) of illegal or confiscated diamonds must be of no importance to the case;

                  diamonds in transit should be declared at the border and the dealer or holder should have a licence (to posses them) and a permit (to trade) from the country of origin;

                  the trapping and the informer system should be retained;

                  section 87 of the Diamonds Act should be amended to allow for fines to be increased to R1 million;

                  section 91 of the Diamonds Act should be amended so as to delete the word “inspector”; and

                  section 92 of the Diamonds Act should be amended as to make provisions for a reference to a regional court.

Other proposals for amendments to relevant legislation are -

                  section 3 of the Finance and Financial Adjustment Act of 1977 -substitute the words “precious stones” for the words “unpolished diamonds”; and

                  various sections of the Criminal Procedure Act of 1977 - same amendment as above.

Other suggestions made during the oral evidence were -

                  combat diamond smuggling through so-called loop-holes; and

                  the trapping system, including the use of the services of informers should be retained.

Captain C J Coleman of the SAPS, during oral evidence before the Commission, raised a further problem, namely the illegal smuggling of diamonds out of the country through the following avenues -

       international airports;

       small-airports; and

       farmers’ air-strips.

Parcels containing illegal diamonds or broken pieces of glass in transit which are collected by an associate of the illegal trader, are taken to the Diamond Board for evaluation and are at some stage swopped for genuine diamonds.  These diamonds are then exported through the normal channels.  Some diamonds are stolen from mines and small diggers.

The written submission by the SAPS also includes the following additional recommendation for the amendment of the Diamonds Act -

                  section 18, to ensure that possession, dealing and processing of diamonds is an offence, unless lawfully imported; and

                  section 25A, to use the wording of similar sections in the repealed Precious Stones Act of 1964, and to make provisions for sea or water operations.

4.17            Mr P J Bester, who used to be a diamond dealer was charged with illicit diamond buying (case SH 622/94).  He was found not guilty.  An amount of R30 000 and 3 polished diamonds were confiscated but were not returned.  In application 1027/1995 advocate J P Daffue, for Mr Bester, pleaded that the applicant was entitled to his R30 000 and the polished diamonds.  The items have never been returned.  Mr L P Khola pleaded for suspension of all police traps cases, including case 432/96, where Mr Bester was also involved – submission 80.

4.18            The Non-Sightholders Group, submission 62, claims that the perception, both inside and especially outside South Africa, is that the IDB laws are specifically designed to make a particular segment of the SAPS rich.  Except in drug trafficking, entrapment laws are viewed throughout the world as unconstitutional.  Numerous people find it unacceptable that the country should have a special SAPS branch dedicated to gold and diamond entrapment.  The view is that this is a security issue for which diamond producers must take responsibility.  According to the Group it is essential that the fear and misconception regarding the IDB laws are eliminated if the country hopes to attract African diamond producers and get them to sell their diamonds in South Africa.  It is argued that the money generated and the jobs created by encouraging a “Common Market of African Diamond Producing Countries” will far exceed the money brought in by the negative process of entrapment.

The Non-Sightholders Group is of the opinion that the South African diamond industry needs to clearly and effectively advertise throughout Africa (through radio, television and the press) so that producers can market their diamonds in South Africa without being jailed or “ripped off”.  Simple procedures needs to be set up, where diamonds can be transferred to the Diamond Board or Diamond Bourse on arrival (at no cost to the person bringing the diamonds in).  Once the diamonds are sold, the seller must be free to invest his or her money in South Africa, or be paid out at any location of his or her choice.

4.19        The Freemarket Foundation is of the opinion (submission 40) that diamond producers provide, often at considerable expense, their own controls to prevent theft.  There should be reliance on these controls and on the ordinary laws of theft.  The cost of enforcing IDB laws may not be worth the perceived benefits of enforcing these laws.

4.B          issues already attended to

4.1          The practice of trapping, in law enforcement, has always been a controversial one, but it may be accepted that if certain well-established safeguards are observed trapping has a legitimate and important place in crime prevention.  The entrapment and undercover procedures which were apparently previously abused by some of the officers of the SAPS, were improved by the insertion of section 252A in the Criminal Procedure Act of 1977, during 1996.

The said Act now makes provision for any law enforcement officer or State official to make use of a trap or to engage in an undercover operation in order to detect, investigate or uncover the commission of an offence, or to prevent the commission of any offence.  The evidence so obtained shall be admissible if that conduct does not go beyond providing an opportunity to commit an offence.

Where the conduct goes beyond providing an opportunity to commit an offence, the Court may admit evidence so obtained, subject to subsection (3) of section 252A of the Act, which stipulates that if a Court in any criminal proceedings finds that in the setting of a trap or the engaging in an undercover operation the conduct goes beyond providing an opportunity to commit an offence, the Court may refuse to allow such evidence to be tendered or may refuse to allow such evidence already tendered, to stand, if the evidence was obtained in an improper or unfair manner and that the admission of such evidence would render the trial unfair or would otherwise be detrimental to the administration of justice.

4.2          In relation to regional co-operation with the South African Development Community (SADC), Government’s intention is to encourage co-operation on mineral and mining matters amongst the countries of the southern African region and base that co-operation on the principle of mutual benefit.  It will devise policies to enhance South Africa’s capacity to contribute to the development of the region and the objective will be to achieve an equitable balanced and mutually beneficial order in southern Africa – vide section 5.2 of Chapter 5 of the White Paper.

4.C          OUTSTANDING ISSUES

The proposals by De Beers and the SAPS regarding possible amendments to the control and regulation procedures contained in the Diamonds Act and in related legislation, should be investigated and the merits thereof given consideration when the said Act is in the longer term reviewed in its entirety to bring the country’s diamond legislation in line with the Constitution and Government policy, as well as to remove practical problems, such as a lack of clarity in certain matters and conflict of interests, as was envisaged in the media statement made by the former Minister of Minerals and Energy on 5 May 1999.


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