- S v Tiry and Eight Others 2021(1) SACR 349 (SCA)
The principal complainants in this matter are Sasol and Engen who are producers of petroleum products. These complainants use freight companies to transport their products with tankers to various central destinations around South Africa, in this case, the Sasol refinery at Secunda in Mpumalanga, and the Engen depot in Mokopane (formerly Potgietersrus). Two counts (25 and 26) involved another producer namely BP Southern Africa and the transport of fuel to its depot in Pretoria.
Mr Nazier Ahmed Tiry (accused 1) was the kingpin of the entire unlawful operation which was to follow. Tiry’s main partner was Ms Patricia Dudu Nono Sangweni (accused 2). The two of them were lovers.
The Tiry couple initially lived on Zutundu farm in Mookgophong (formerly Naboomspruit) in the Limpopo Province, where an unlawful tank farm was operated supplying petroleum products throughout the province as far as Musina. When this enterprise was discovered and Tiry arrested, he and Sangweni moved to the Free State where they established a new unlawful tank farm operation on a farm, Quarry Hoek, near the town of Warden. The evidence showed that Tiry was the mastermind of, and ran, a criminal enterprise through which he stole petroleum products from Sasol and Engen, using the tank farms at both Zutundu and Quarry Hoek for this purpose. The farms were strategically situated in close proximity to the national roads used by the freight companies to transport Sasol and Engen’s petroleum products. Both farms were surrounded by high walls, and a number of bulk storage tanks and pipes had been erected, which were used to decant* and store the products. Tiry was said to have had contact with the tanker drivers who would divert from their routes onto the farms and unlawfully decant* petroleum products there. Tiry would pay them for this and later on sell the stolen products to fuel retailers and possibly others at a reduced price lower than the regulated price. These activities gave rise to counts 1 and 2 under the provisions of the Prevention of Organised Crime Act 121 of 1998 (hereinafter referred to as POCA).
The evidence showed that the drivers were aware that if they diverted in this way Tiry would purchase the product they were carrying. It was not established how the drivers came to know this, although a list of drivers’ cellphone numbers was found on a phone belonging to Tiry and one witness, who testified in terms of section 204 of the Criminal Procedure Act 51 of 1977*, said that he received a phone call from Tiry.
The common law thefts in counts 12-26 and 30-41 (also all predicated [found or based] on counts 1 and 2) were allegedly committed at Quarry Hoek. The stolen products were loaded at Island View Storage (IVS) in Durban and destined for Sasol’s tank farm in Secunda. As with the other counts, the State alleged that the products did not reach their destination, but were decanted* on Quarry Hoek. Accused 3, 4, 6, 7, 8 and 9* are implicated in this regard. Accused 3, 4, 6 and 9 were the drivers for various freight companies, while accused 7 and 8 were employed by Sasol in Secunda as officials entrusted with receiving products from IVS delivered by accused 3, 4, 6 and 9. They allegedly falsified documents to the effect that tankers were shown as arriving in Secunda and off-loading petroleum products, whereas, in fact, the tankers either never entered the tank farm, or arrived there with a tank containing water!
On the said very brief factual background supra, nine accused persons (including Tiry and Sangweni) were convicted and sentenced by the High Court in Bloemfontein on various counts of contravening POCA, as well as various counts of common law theft of petroleum products. All nine the accused were sentenced by the High Court to rather lengthy terms of incarceration.
On appeal by all nine accused persons before a bench of three judges of the Supreme Court of Appeal (“the SCA”), against both their convictions and sentences, the SCA held that the tank farms were established by Tiry (accused 1).