In January 2009, Peter Michael Roberts (accused 1) and six co-accused were arrested by the erstwhile Directorate of Special Operations (the Scorpions) following a police operation codenamed Operation May. The enterprise traded and distributed approximately 30 tons of shucked abalone over a period of 40 months. The State argued that Peter Roberts was the mastermind and that his co-accused were central to the enterprise.
Two of the accused, who were arrested five kilometres from the Lebombo border post between South Africa and Mozambique, are not subject to this trial since both pleaded guilty and entered a plea bargain with the State. Both were convicted and sentenced but not incarcerated. The remaining five accused all denied complicity in the offences, which included conducting an enterprise through a pattern of racketeering activities (2005 – 2009), in the illicit trade in and transportation of abalone – in a truck with a concealed roof – to Mozambique.
The State demonstrated that Peter Roberts was indeed central to the enterprise by relying on witness testimony, documentary evidence obtained through a seizure operation, and transcripts from intercepted phone calls to and from Roberts. It was found that their operation possessed, transported, and exported abalone from the Eastern Cape to Mozambique. The illegal trade in abalone was the predicate offence to the more serious crime of racketeering, that carries a heavier sentence, which necessitated the State to demonstrate the existence of an enterprise with a pattern of more than two incidents and show the involvement of the accused in the enterprise. The racketeering pattern was established by triangulating the abovementioned evidence to cases in which s204 witnesses (see commentary) testified about the complicity of the accused in similar cases in which the witnesses were duly convicted and sentenced.
South Africa
MozambiqueThe Scorpions investigated the enterprise as part of an operation titled “Operation May”. They sought a directive from the Court to intercept communications to and from accused 1, whom they suspected of being a high-ranking member (kingpin) in the syndicate. The state intercepted communication during the period 16 December 2008 until 9 January 2009. Although initially authorized until 21 December, the order was extended until 17 March 2009.
Law enforcement wiretapped the phones of the accused.
High Court of South Africa
In order to secure a conviction, the State was obligated to establish the existence of an enterprise, a pattern of racketeering activity and that the accused participated in the aforementioned activities.
All five accused stood trial in the Port Elizabeth High Court in the Eastern Cape, South Africa, on charges related to the trade in approximately 30 tons of Abalone over a period of 40 months. The fifth was charged, in terms of section 77 of the Marine Living Resources act. However, considering the organized nature of the offences, the Prevention of Organised Crime Act (POCA) was considered a more appropriate basis for sentencing.
The counsel for defence sought to dispute the admissibility of the intercepted phone calls and documents gathered during a residential search as evidence. The dispute particularly relates to the extension of the court order to intercept accused 1’s phone calls beyond the original date of 21 December. The reliability of the call transcriptions was also questioned, resulting in the calls being re-transcribed. Moreover, the counsel for defence sought to impugn documentary evidence that was seized during a search of the Roberts’ residence, where the police conducted a search without a warrant. The State argued that accused 2 (Roberts’ wife, Carolina) was en route to their residence after accused 1’s arrest and that obtaining a warrant would have impeded the purpose of the search, which the court accepted despite accused 2’s denial that she consented to the search.
The State also subpoenaed s204 witnesses to provide testimony about the accuseds’ linkages to separate abalone activities in which the witnesses were convicted and sentenced. The counsel for defence vilified these witnesses, but their testimony was acknowledged as being truthful and not in conflict with the testimony or evidence presented to the court.
The defence’s attempt to impugn the evidence on the assumption that the witnesses were untruthful, the telephonic transcriptions unreliable and documentary evidence inadmissible because it infringed on the accuseds’ rights was dismissed.
High Court of South Africa
Accused number one and four appealed the sentences imposed upon them following their conviction on charges related to unlawful abalone trade. The appellants submitted two arguments to overturn the trial judge’s decision. First, that the sentences were inappropriate and divergent from similar abalone poaching cases and, second, that the court did not take into consideration the personal circumstances of the accused.
The appeal court established that the sentences are in fact appropriate since the accused were primarily convicted for their involvement in racketeering activities involving poaching, which is considered a more serious offence than illegal fishing. The court also contends that the court a quo considered the appellants’ personal circumstances, citing accused two’s non-custodial sentence as due regard for their personal circumstances.
Previous conviction – illegal abalone poaching. Defendant 2’s spouse. Accused 5’s brother-in-law.
Defendant 1’s spouse. Managed the enterprise finances.
Previous conviction – illegal abalone poaching. Longstanding family friend of accused no.’s 1, 2, and 5.
Friend of accused 3.
Previous conviction – illegal abalone poaching. Accused 1’s brother-in-law.
Prevention of Organised Crime Act (POCA)
Conducting or participating in the conduct of an enterprise through a pattern of racketeering activities in contravention of Section 2 (1) (e) of POCA.
Unlawfully and wrongfully engaged in the fishing and or collecting, keeping, controlling, transporting or possession of abalone, by collecting, keeping, controlling, transporting possessing and dealing in abalone, without a permit.
Prevention of Organised Crime Act (POCA)
Managing an enterprise conducted through a pattern of racketeering activities in contravening of Section 2 (1) (f) of POCA.
Unlawfully and wrongfully engaged in the fishing and or collecting, keeping, controlling, transporting or possession of abalone, by collecting, keeping, controlling, transporting possessing and dealing in abalone, without a permit.
Prevention of Organised Crime Act (POCA)
The unlawful engagement in fishing, collecting, keeping, transporting, controlling of and or being in possession of abalone without a permit in contravention of Regulation 36 (1) (b) of the Regulations promulgated under Government Notice R. 111 and published in GG 19205 of 2 September 1998.
Unlawfully and wrongfully engaged in the fishing and or collecting, keeping, controlling, transporting or possession of abalone, by collecting, keeping, controlling, transporting possessing and dealing in abalone, without a permit.
Accused one was convicted on all counts, except count five, and effectively sentenced to 18 years imprisonment.
Prevention of Organised Crime Act (POCA)
Conducting or participating in the conduct of an enterprise through a pattern of racketeering activities in contravention of Section 2 (1) (e) of POCA.
Unlawfully and wrongfully engaged in the fishing and or collecting, keeping, controlling, transporting or possession of abalone, by collecting, keeping, controlling, transporting possessing and dealing in abalone, without a permit.
Prevention of Organised Crime Act (POCA)
Managing an enterprise conducted through a pattern of racketeering activities in contravening of Section 2 (1) (f) of POCA.
Unlawfully and wrongfully engaged in the fishing and or collecting, keeping, controlling, transporting or possession of abalone, by collecting, keeping, controlling, transporting possessing and dealing in abalone, without a permit.
The unlawful engagement in fishing, collecting, keeping, transporting, controlling of and or being in possession of abalone without a permit in contravention of Regulation 36 (1) (b) of the Regulations promulgated under Government Notice R. 111 and published in GG 19205 of 2 September 1998.
Unlawfully and wrongfully engaged in the fishing and or collecting, keeping, controlling, transporting or possession of abalone, by collecting, keeping, controlling, transporting possessing and dealing in abalone, without a permit.
Accused two was convicted on counts 1, 2, and 9, and sentenced to 3 years imprisonment suspended for 5 years.
Prevention of Organised Crime Act (POCA)
Conducting or participating in the conduct of an enterprise through a pattern of racketeering activities in contravention of Section 2 (1) (e) of POCA.
Unlawfully and wrongfully engaged in the fishing and or collecting, keeping, controlling, transporting or possession of abalone, by collecting, keeping, controlling, transporting possessing and dealing in abalone, without a permit.
Prevention of Organised Crime Act (POCA)
The unlawful engagement in fishing, collecting, keeping, transporting, controlling of and or being in possession of abalone without a permit in contravention of Regulation 36 (1) (b) of the Regulations promulgated under Government Notice R. 111 and published in GG 19205 of 2 September 1998.
Unlawfully and wrongfully engaged in the fishing and or collecting, keeping, controlling, transporting or possession of abalone, by collecting, keeping, controlling, transporting possessing and dealing in abalone, without a permit.
Accused three was convicted on counts 1, 4, 7, 8, and 9, and sentenced to 8 years imprisonment.
Prevention of Organised Crime Act (POCA)
The unlawful engagement in fishing, collecting, keeping, transporting, controlling of and or being in possession of abalone without a permit in contravention of Regulation 36 (1) (b) of the Regulations promulgated under Government Notice R. 111 and published in GG 19205 of 2 September 1998.
Unlawfully and wrongfully engaged in the fishing and or collecting, keeping, controlling, transporting or possession of abalone, by collecting, keeping, controlling, transporting possessing and dealing in abalone, without a permit.
Accused four was convicted on count 9 and sentenced to 18 months imprisonment.
Prevention of Organised Crime Act (POCA)
Conducting or participating in the conduct of an enterprise through a pattern of racketeering activities in contravention of Section 2 (1) (e) of POCA.
Unlawfully and wrongfully engaged in the fishing and or collecting, keeping, controlling, transporting or possession of abalone, by collecting, keeping, controlling, transporting possessing and dealing in abalone, without a permit.
Accused five convicted on count 1. Sentence: unknown.
High Court of South Africa
This case is unique in its demonstration of linkages to other similar cases. The State established a pattern of racketeering activities by relying on witnesses directly involved in poaching activities to provide testimony about the complicity of the accused in cases where the witnesses were duly convicted and sentenced. The State succeeded in establishing clear links between the accused and 10 separate activities, thereby demonstrating a pattern pertaining to sourcing, transportation, and distribution of abalone. It is noteworthy that no international actors (receivers of the abalone) were identified or arrested. The trial judge does allude to the involvement of Chinese organised criminals as the receivers, but it should be noted that the judgment does not divulge information about the investigation beyond the disputed facts. Therefore, it is unclear if the investigation involved international cooperation or if other persons of interest were investigated beyond the quintet.
The arguments in this case were factual, with the only dispute being whether the evidence was admissible. Three of the accused were previously convicted on abalone poaching-related charges and received suspended sentences. The court were cognizant of the fact that their previous conviction and sentences might have influenced their perception about the seriousness of their crime. Considering the proliferation of organised crime in South Africa, participation in and promotion of criminal group activities are criminalised. Thus, POCA was considered the appropriate basis for a suitable sentence in this case since the crime was far more complex than a single incident of poaching.
The judgment on the sentence was not publicly reported and is not available in the public domain. However, a similar case (SS13/2012 - S v Miller & others) refers to the S v Roberts sentence judgment and was especially concerned with a research paper that the court relied on to contextualise the environmental impact of abalone poaching and the massive upsurge of poaching in South Africa. This paper provides more context within which to interpret the S v Roberts and other case.
The logistics of the group were described as containing the following steps:
Buy abalone from divers in Gqeberha (Port Elizabeth) area.
Store abalone in warehouse – shuck and dry the abalone.
Pack abalone and transport to central South Africa (Johannesburg, Bloemfontein, or Kroonstad) to overnight.
Drive truck to Mozambican border (Komatipoort).
Driver with passport drives truck across border to Maputo (meet at a restaurant).
Return across border.