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[2011] ZAGPJHC 41
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S v Ndebele and Another (SS16/2010) [2011] ZAGPJHC 41; 2012 (1) SACR 245 (GSJ); 2012 (3) SA 226 (GSJ) (21 February 2011)
IN THE SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE NO
:
SS16/2010
DATE
: 2011/02/21
In
the matter between
STATE
And
NDEBELE
M AND ANOTHER
Accused
J U D G M E N T
LAMONT J
:
The three accused faced numerous counts, they were charged with the
following offences:
Count 1, during the
period February 2007 to May 2008 and at or near Sasolburg in
Westonaria while managing or employed by or associated
with a certain
enterprise they conducted or participated in the conduct of directly
or indirectly advancing the enterprise’s
affairs through a
pattern of racketeering activities as contemplated by section 2 (1)
(e) of the Prevention of Organised Crime
Act 121 of 1998 (hereafter
POCA);
Accused 1 faced the
additional count 2 alone which is a count under section 2 (1) (f) of
POCA comprising the management of the enterprise.
Counts 3, 4, 5, 6 and 7
were each of theft levelled against all three accused and related in
each case to a vending machine known
as a credit dispensing unit.
The remaining counts namely, counts 8 up to 78 287 were counts
concerning theft arising out
of the alleged use of the vending
machinery forming the subject matter of counts 3 to 7. Those
counts can conveniently be
summarised and considered in respect of
the activities in relation to each of the five machines. In
respect of each of the
five machines it is alleged that the accused
used each machine to steal electricity and electricity credits. All
the counts can
be grouped into those two categories and be understood
in that sense.
The
accused elected to plead not guilty and made no statement. They
however advised through their counsel that insofar as
there were
matters of a formal nature, that endeavours would be made during the
course of the trial to reach agreement in respect
of such matters.
During the course of the trial, very properly, admissions were made
which related to many formal issues.
The
State having charged the accused under POCA was assisted in the
conduct of the trial by the provisions of section 2 (2) of POCA
which
provides that the Court may hear evidence including evidence with
regard to hearsay, similar facts or previous convictions
relating to
offences contemplated in Section 2 (1) that is notwithstanding that
such evidence might otherwise be inadmissible providing
that
admitting such evidence would not render the trial unfair.
The
definition of a pattern of racketeering activity is to be found in
POCA as meaning the planned, ongoing, continuous or repeated
participation or involvement in any offence referred to in schedule 1
and includes at least two offences referred to in schedule
1 of which
one of the offences occurred after the commencement of this Act and
the last offence occurred within 10 years [excluding
any period of
imprisonment] after the commission of such prior offence referred to
in schedule 1.
An
unlawful activity is defined by POCA as meaning any conduct which
constitutes a crime or which contravenes any law whether such
conduct
occurred before or after the commencement of this Act and whether
such conduct occurred in the Republic or elsewhere and
for the
purposes of POCA a person would have knowledge of any fact, if he had
actual knowledge of the fact or if the Court is satisfied
that the
person believes that there is a reasonable possibility of the
existence of that fact and failed to obtain information
to confirm
the existence of that fact.
POCA further provides
that a person ought reasonably have known or suspected the existence
of a fact if the conclusions that he
or she ought to have reached are
those which would have been reached by reasonably diligent and
vigilant having both:
a) The
general knowledge, skill, training and experience that may possibly
expected of a person in his or her position
and;
The
general knowledge, skill, training and experience that he or she in
fact has.
During the course of the
trial the State sought to advance evidence in the form of previous
convictions. I declined to accept
that evidence and ruled
accordingly. I ruled that in the context of this case it was
unfair that such evidence be adduced
against the accused in
question.
At the commencement of
the trial an application was brought to quash some of the charges
based on a contention that electricity
was not capable of theft.
The charges in question were those which related to the manipulation
of the vending machines so
as to result in theft of electricity.
The application was dependent upon the finding at that stage that
electricity could
not be stolen and that electricity had the physical
properties contemplated in
S v Mintoor
1996 (1) SACR 514
(C)
which held that electricity could not be stolen.
The submissions made by
the State were firstly that the factual finding in
Mintoor
was
incorrect and that the evidence which would be led before me would
establish that.
Hence so it was
submitted, I would be free not to follow
Mintoor
.
Secondly it was that I should develop the common law as contemplated
by section 39 of the Constitution.
It
appeared to me that inasmuch as a quashing is in the nature of an
exception that if the facts founding the exception were in
dispute
that it was proper to allow those facts to be led during the course
of the trial and make a decision at the end of the
trial. This would
enable me to decide whether the factual basis of
Mintoor’s
case was different to the factual basis before me. Patently at
this stage of quashing I could not consider the question of
development of the common law. I also considered that if the common
law did not as currently formulated provide that theft of electricity
was a crime and I extended it to find that theft of electricity is a
crime that this might result in me creating a new offence.
This
new offence may have come into being after the accused had performed
the acts complained of.
It
appeared to me that there was a more than slight possibility (which
would be more conveniently decided at the end of the case)
that
electricity was in fact capable of theft and that the law had already
been advanced by judgments relating in particular to
theft of
incorporeals.
In
order to more easily understand the case and the charges which
underpin the evidence it is necessary to consider the nature of
the
enterprise undertaken by Eskom and the nature of the enterprise
undertaken by whomsoever the persons were who had control and
possession of the vending machines in question.
Eskom
concludes contracts with vendors under and in terms of which it
supplies vending machines to those vendors. These vending
machines are known as Credit Dispensing Units. The vending machines
can print vouchers which are used by customers to obtain a
supply of
electricity equal to the value of the voucher.
There
are two types of vending machines which Eskom supplies. There is a
type of machine where vouchers can be printed to an unlimited
value.
The only control that there is over the ability of the machine to
print vouchers is that once a certain number of
vouchers has been
reached the machine will no longer print vouchers. There is a
difficultly with these machines in that the
voucher counter can be
tampered with so as to prevent the machine ever reaching the printed
number of vouchers which would limit
its ability to print further
vouchers. The other type of vending machine is a type where the
total value of the vouchers
which can be printed is limited by Eskom
to the extent of the credit Eskom has received from the vendor (a
prepaid machine).
Currently the prepaid type of machine is the
one which is more popularly provided.
The
economic difference between the two types of vending machines is
immediately apparent. In the one type of machine Eskom
extends
credit to the vendor and has no effective control over the total
value of vouchers which can be issued by the machine.
In the
other there is a credit control placed by Eskom on the total value of
vouchers which can be issued in that the total value
is limited to an
amount equal to the credit in the possession of Eskom. Eskom
placed what it believed to be effective controls
over the use of the
machines by requiring the vendors using the machines to provide
information reflecting the usage. Vendors were
required to
communicate information to the central database of Eskom. This
communication would take place either electronically
by remote access
or physically by way of an Eskom representative obtaining the
information from the machine in question and downloading
it onto the
Eskom central database.
Through
this mechanism Eskom would at the intervals determined by it be kept
fully aware of the extent to which each vending machine
had issued
vouchers, what the total and individual value of those vouchers were,
what amount was due to it, and other data pertaining
to the issue of
vouchers. Each of these vending machines retains extensive records of
each transaction which emanates from it.
Certain of the
information is printed upon the vouchers which are given by the
vendor to the customer. Vouchers are issued
with a view to each
voucher being used to obtain the right to use the amount of
electricity purchased at a particular prepaid electricity
meter
situated at the customer’s premises (usually his house).
The vouchers reflect the value of electricity being
purchased, the
date and time when the voucher was printed, the number of the vending
machine and the code required to be entered
into the particular meter
for which the voucher is valid.
It
is immediately apparent that vouchers cannot be printed at random.
Vouchers are printed for particular customers who provide
their meter
number and who intend to use the voucher almost immediately.
Once the code has been entered into the particular
meter by the
customer, the customer is entitled to and is able to access
electricity up to the value of the voucher as and when
the customer
requires it.
It
is apparent why the system is referred to as a prepaid system. The
vendor prepays Eskom; the customer in advance of obtaining
the
electricity which he requires, prepays for it.
Eskom
is able, by using the information obtained from the machine which
issued the vouchers, to ascertain the total value of the
sales made
by the machine as also detailed information of each machine.
It
is common cause that the transfer of data from the vending machines
to the Eskom database is electronic and that there can be
no mistake
as to the data which is transferred. The data produced by Eskom
as to details of each of the transactions executed
by each vending
machine is common cause in this matter. Eskom retains no records of
the actual consumption of electricity by the
person who purchases the
voucher. It does not know whether or not that person actually
used the voucher by entering the unique
code into the meter.
The only data which Eskom is able to provide from its records is the
detail of each of the transactions
underlying the issue of vouchers.
The
evidence of Eskom, presumably based on its customer consumption, is
that all vouchers which are bought are used. There
is no
documentary proof of this. Eskom supplies electricity in sufficient
quantities to the whole grid to be able to supply any
and every
consumer once he has established his right to receive electricity.
The assumption made by Eskom is that as its
supply of electricity is
continuous and hence always available to the meter within the
customer’s property the customer will
want to receive
electricity continuously. It assumes that the vouchers it sells
will be used virtually immediately. This
assumption is dependant upon
the premise that people who buy the vouchers buy them for a reason,
namely to use them and also that
insofar as the consumers in question
are concerned they are indigent and would only spend money to buy
electricity when they need
it. Eskom provided shorthand evidence for
this concept saying that it regarded transactions for the sale and
consumption of electricity
as complete once the vouchers had been
bought.
The
State was unable in respect of each and every voucher to establish
that the persons who had bought such vouchers had actually
used them
to obtain the electricity by reason of the nature of the records
which are kept by Eskom.
The
State was able to establish in respect of each voucher which was
produced that each had the unique meter number of a consumer.
In
respect of certain of the vouchers those numbers corresponded with
meter numbers controlled by the three accused.
The
evidence of Eskom in regard to the consumption by its customers
appears to me to establish that it was notorious that customers
who
bought vouchers immediately would use them. It would be logical
for customers who purchased vouchers to purchase them
at a time when
they needed electricity and it is also logical that they would want
to maintain continuous electricity supply to
their premises.
The vouchers are purchased for relatively small values and it is
evident that they are valuable articles
in the possession of the
persons who buy them for the specific purpose and who probably
immediately use them.
It
is convenient, in advance of reaching the point when it needs to be
dealt with fully, to merely note that one of the issues raised
by the
accused was the inability of the State to establish that the vouchers
had been used by the customers to obtain a supply
of electricity.
It appears to me beyond reasonable doubt that the State established
that the vouchers were used. The
interesting suggestion is that
there may have been for example one of the vouchers mislaid, damaged
or lost and if the State is
unable to prove which one it was which
was lost that the accused are entitled to an acquittal on all the
charges in relation to
the vouchers. I will deal with this
matter more fully below.
It is common
cause that the five vending machines were found in two flats: four
were found in one and one was found in another.
The data which
was contained upon each of the machines are similarly common cause.
That data in respect of each of the machines
establishes the usage
and production of vouchers by each of the machines over a period.
That data founded each of the theft
counts in respect of the use of
the vouchers be it for electricity or electricity credits.
This portion of the case
which founded those charges was common cause. However, it was
not common cause as to who the person
and/or persons had been who had
generated the vouchers. It became common cause that the five
machines had been found at the
two flats in question. It was
common cause that the vending machines belonged to Eskom. It
was not common cause whether
or not the accused were the persons who
had stolen the machines or who had possessed them. The issues
between the State and
the accused became settled and were:
1.
Whether or not the accused were the persons who had used the machines
to generate the vouchers and whether
or not the accused were the
persons who had possessed the machines.
Whether
or not the acts allegedly committed by the accused constituted
offences under POCA.
Whether
or not even if the accused had perpetrated the deeds:
1. The
machines had been proven to be stolen;
Electricity
could be stolen;
Electricity
had in fact been stolen;
If
electricity had been stolen there was proof of this in respect of
every single count;
The
same issues as above in relation to electricity credits;
2.
Some of the charges constituted duplication.
The
law needs to be developed to encompass energy as being a thing
capable of theft.
It is against that
background that the evidence which was furnished by the state needs
to be considered.
On 21 May 2008 the
sheriff for Westonaria in the course of his duties went to 4 Echo
Court Westonaria [the Westonaria flat].
The reason the sheriff
went to the Westonaria flat was because he had been given authority
by the judgment creditor to enter upon
the premises with a view to
executing a warrant which had been issued against
accused 2.
The sheriff entered the Westonaria flat and found a variety of
computer equipment, printers, rolls of paper with
codes on them,
white cards which looked credit cards and which had a magnetic strip
on them. The four machines within the
Westonaria flat were
identified as VSZ124, VSZ141, VSZ071 and WKT001.
The
printers were printers of the type used to print vouchers. The cards
with magnetic strips on them were cards which could be
used together
with the card reader/printer which was present to assist in the
generation of the particular data required for a
particular customer
in the issue of a voucher. The sheriff also saw a number of,
what appeared to him, to be printed vouchers.
All of these
items are referred to as the equipment.
The
sheriff suspected that the equipment had been used by a person or
persons unknown to him to generate prepaid vouchers using
the
equipment. He suspected that an unlawful activity had been
conducted from the premises. The sheriff finished making
his
inventory which he, as he is required to do, attached to the front
door of the Westonaria flat. While he was in the process
of
doing this a person arrived in a blue Volkswagen Golf. This person is
accused 1.
Accused 1 asked the
sheriff if there was anything wrong at the flat, whereupon the
sheriff asked accused 1 whether he lived there.
He was told by
accused 1 that he and his girlfriend (who the sheriff had seen
sitting in the Volkswagen) proposed using the flat.
The sheriff
showed accused 1 the equipment inside the flat and asked accused 1
what he knew about it. Accused 1’s answer
was that the
flat belonged to his friend and he knew nothing about the equipment.
The sheriff told accused 1 that he, the
sheriff, was suspicious and
that he intended to contact the police. Thereupon accused 1 appeared
to look worried. Accused
1 walked away hurriedly and left
hurriedly in his car.
The
sheriff telephoned a policeman, one Warrant Officer Botha [Botha].
He told Botha of his suspicions and described the motor
vehicle
including the registration number and colour to Botha. Botha
stopped accused 1 on the road and he and accused 1 returned
to the
Westonaria flat. During the course of the conversation accused
1 indicated to the sheriff that his friend was a Mr
Ndebele [meaning
accused 2] who worked at South Deep Mine. Some time previously
the summons in the matter which instituted
the action pursuant to
which judgment was granted against accused 2 had been served
personally upon accused 2 at the Westonaria
flat.
The
sheriff was asked to and did identify a series of pictures showing
the equipment in the Westonaria flat and the equipment is
all
recognisable from the set of pictures. It is common cause that
the set of pictures reflects the contents of the Westonaria
flat
insofar as same appears on the pictures at the time the sheriff was
there.
Botha
spoke to accused 1. Accused 1 and Botha went into the flat and
saw the equipment. Botha believed that the equipment
was being
used to create vouchers which could be used to obtain electricity.
His suspicions were confirmed by certain persons
who came from the
municipality and inspected the equiptment. Accused 1 at a point
in time called Botha to one side and told
Botha that he would buy him
a coldrink if Botha would let him go. Botha rejected the
suggestion.
Sometime
later accused 2 came to the flat. He was driving a red BMW.
In response to a question from Botha, accused 2
said that he used to
live in the flat but that at that particular point in time he was
living in Randburg. Botha had read
the documents pinned to the
door by the sheriff and formed the conclusion that the person
referred to in the documents was in fact
accused 2 and that it was
accused 2 standing before him. The two accused blamed each
other concerning the possession and
control of the equipment.
Botha arrested both accused 1 and accused 2 and only then
administered the warning in terms of
Judges Rules to them.
During
the course of the trial the admissibility of the statements made by
the two accused was put in question. I wrote a
fairly lengthy
judgment in relation thereto and ruled that the statements were
admissible. I abide by what I have said then
and would add only
the reference to one authority which I omitted namely,
S v Shongwe
1998 (2) SACR 321.
I exercised extreme caution in relying
upon any of the statements made by the accused. It is apparent
to me from the
evidence of the members of the South African Police
that their recollection independently of the first statements they
made was
vague. In one case there was a patent error by a
witness which could only be rectified once the original statement
which
had been lost was recovered. This is not to say that the
evidence of the police on other matters is unreliable. It is
merely that in respect of the recollection of oral statements made,
it is easy to make errors and I am very conscious of that fact.
Statements
were made by the accused to Captain Van den Heever [Van den Heever].
As to the substance of the statements, which I approach
with the same
caution, the position of Van den Heever is different as I set out in
the earlier judgment in that by the time he
spoke the accused the
warnings to which they were entitled had already been administered. I
held that the warnings were adequate
and remained operative even
though the statements were being made to a policeman who did not give
them.
After
Van den Heever arrived he examined the BMW in which accused 2 had
driven to the Westonaria flat. Inside the boot of
the BMW he
found a bank bag containing vouchers which looked like electricity
vouchers. There is no dispute between the State
and the accused
as to the fact that a bank bag containing vouchers was found in the
boot. The fact that such a bag was found
at the scene is also
corroborated by the fact that a bank bag was handed in to be recorded
as an exhibit.
Accused
2 did not dispute in his evidence that there were vouchers found
within the BMW. The issue which he raised was whether
or not
that they were not electricity vouchers. He claimed they were
builder’s vouchers belonging to his brother. By
builder’s
vouchers he meant receipts for purchases of building materials.
According
to Van den Heever when accused 2 was shown the vouches in the plastic
bank bag he said that he had sold electricity and
that he had got the
vouchers from “Michael” at the taxi rank. Accused 2 at
that time patently accepted that the receipts
were not “builder’s
receipts”. He also accepted that they were his and that he had
knowledge of them.
It
is necessary to deal with the issue concerning the bank bag itself.
The evidence of Van den Heever was that within the bank bag
were
vouchers similar to the prepaid electricity vouchers. The bank
bag containing those vouchers, which had been found in
the back of
the BMW, was handed into the SAP exhibit room as item 2 and is listed
as such. All the items handed in were listed
and given item numbers.
The
vouchers at a point in time were extracted from the bank bag and
examined. They were handed in as
Exhibit F. An attack was
launched upon whether or not those vouchers were the vouchers which
had been contained within the
bank bag and also upon whether or not
the bank bag was the bank bag which had been found in the BMW. This
attack came about because
a Mr Rossouw [Rossouw], who gave evidence
concerning his examination of the vouchers, referred to the vouchers
as having been listed
as item 7. When he was questioned as to
whether or not he had listed them as item 7 he conceded that he had
made a mistake
and that they were in fact listed as item 2. A
line of questions demonstrated that it was difficult for Rossouw to
have made
a mistake as he had referred in the document not only by
its item number but also the number which was attached to the bag.
This
latter number was incorrect if the bank bag was the bank bag
referred to in item 2. The question is whether Mr Rossouw made
a mistake or whether he gave evidence relating to vouchers which were
not the ones which had been in the bank bag referred to as
item 2.
The
evidence that Rossouw had made a mistake is corroborated, in my view,
by at least two features of the case. All the items were
handed in at
the police station and recorded in the exhibit list. There are
two different exhibit books; the one is a book
which contains
exhibits which it is proposed will be used in the trial, and the
other is a book with only receipts for goods taken
from the accused
persons. The SAP 13 form at Westonaria was handed in as
Exhibit
I. That form lists a number of items which were handed in
and which received marks. Item 2 is a reference
to a bag
containing an ABSA plastic bank bag with printed vouchers. It
was given the number FSC-435368. This is the
only bank bag
which was handed in and it was handed in containing the vouchers.
Item 7 is a reference to a bag containing
two black floppy discs and
an unknown number of electricity credit cards. The bag bears the
number FSC-435332 and it is marked
item 7.
The
electricity credit cards are different to the vouchers. These
credit cards are white plastic cards with magnetic strips.
Bag
7 contained no vouchers. If Rossouw had looked inside bag 7, as
it appears he did from the Statement, he would not have
found
vouchers. I conclude accordingly that he must have been
mistaken in saying he did so. The further fact upon which
I
rely on is that all the witnesses who form part of the chain leading
to Rossouw receiving and examining the vouchers spoke of
a bank bag
which contained vouchers. There was only the one bag and that
bag went down the chain to the witness. This
identification of
the object containing the vouchers further corroborates the fact that
Rossouw had made a mistake. In my
view, the State proved beyond
reasonable doubt that the vouchers which form the subject matter of
Exhibit F were the vouchers found
within the bank bag in the BMW.
A witness, one Cindi was
called to establish who the occupant of the Westonaria flat was.
She was however, unable to shed
any light on this.
On 20 April 2007 various
members of the South African Police went to flat number 101 Aquarius
at Sasolburg [the Sasolburg flat].
The reason the South African
Police went to the flat was because information had been provided
that electricity was being sold
from the flat. The purpose of the
police going to the Sasolburg flat was to go to the flat, not to go
and seek out a person. They
did not know the name of, or who, if
anyone occupied it.
When the policemen
arrived at the flat one of them saw
accused 1 exiting it.
There was a dispute between the policemen as to whether or not
accused 1 was actually exiting the flat
or already outside it.
Nothing turns on this dispute. As is apparent from the evidence
of the police and the events
which followed, accused 1 was in such
proximity to the Sasolburg flat that the police were able to
associate him as the person
who was relevant to that flat and had
exited it.
They accosted accused 1
and the only reason why they would have accosted him, in my view, is
because he, in their minds by reason
of his activities in relation to
and his proximity to the flat was linked to it. This view is
corroborated by the fact that
subsequently it became apparent that
accused 1 was linked to the flat. He had the key to it.
Accused 1 accepted that
he and accused 3 had sought to rent the flat, which ultimately
was rented by accused 3. This
link is corroborative of the
evidence the police gave linking accused 1 to the flat.
Accused 1
and the police went to the flat. It is irrelevant whether there
was the intervening door. The existence
of this door may
have a bearing on the number of keys that a person who wanted to gain
access to the flat would need. Apart from
that it appears to me to
have no bearing.
At
the flat, accused 1 opened the door and in doing so he used a key.
Accused 1 disputed that he had a key for the flat.
It is common
cause between the State and accused 1 that the door was locked and
that a key was necessary to open it. The
dispute ranged around
who had the key. The natural person to have had the key would
be accused 1 as being the person who
was related to the tenant,
accused 3.
The
strongest evidence in my view concerning the key issue is the absence
of damage to the door, which establishes that a key must
have been
used. The police had no keys or means to access the flat they
only had information relating to the flat.
The rhetorical
question to be asked is where they would have got a key. In my
view the State established beyond reasonable
doubt that accused
number 1 had a key to the flat and that he used it to open the door.
This conclusively establishes his
possession of the flat and its
contents.
The
police and accused 1 went into the flat and found a host of
equipment, including computer equipment, printers, other machines
and
papers, similar to the equipment which was found in the Westonaria
flat. The vending machine in question was VSX031.
While the police and
accused 1 were in the flat, accused 1 was asked what he was doing at
the flat and his answer was that the flat
belonged to a friend, who
he did not identify. A cell phone which he had in his
possession was examined and according to
the police it contained a
voucher similar to an electricity voucher.
There is no evidence
before me as to what that voucher is, other than the say-so of the
police. I do not rely upon the existence
of that voucher, whatever it
was within the pouch of the cell phone as advancing either case.
The
evidence within the flat was obtained and marked as an exhibit.
Both accused 1 and
accused 2 were linked to the flats by their physical presence at
them. Accused 1 was found at both the Westonaria
and Sasolburg flats.
He had the key to the Sasolburg flat. He was a friend of the lessee
of the Sasolburg flat. Accused 2 the lessee
of the Westonaria flat
was found in possession of the electricity vouchers exhibit F.
The
two flats between them contained the five vending machines, credit
cards which are used in conjunction with the machines to
print
vouchers, printers necessary to print vouchers, rolls of paper and
printed vouchers. It is apparent that the business of
creating
vouchers having a credit value and disposing of such vouchers was
being carried on at both flats. The extent to which
vouchers had been
created was established by the printouts reflecting the transactions.
The business was substantial and flourishing.
Armstrong Matala was
called in relation to the theft of VSZ071. He stated that he
had concluded a contract pursuant to
which he was given an Eskom
vending machine, which bore the number VSZ071. The number is
written on the contract; however
he never personally looked at the
machine to ascertain whether or not the machine which eventually was
supplied to him was in fact
that one. He was only able to state
that he had a contract with Eskom pursuant to which a machine was
delivered; to identify
the contract; to state that the machine which
he received, he no longer possessed after January 2005. He was
unable to state
how the machine came to be stolen. All he could
say was that he controlled employees. He had a machine under the
control
of employees at one point in time and subsequently he did not
have it.
It
was suggested that he was vague as to how the machine came to leave
his possession. This may be. He was however certain
that he did
have a machine at a time and at a later point in time he no longer
had it. He knew of its existence and its loss
as there were
financial consequences which attached to the loss of the machine.
He did not give permission for the machine
to travel out of his
possession.
A
further issue was raised in relation specifically to this machine.
That issue arose out of the fact that one of the exhibits describes
a
different machine as having been issued to Mr Matala. It appears
from Exhibit CC2, a screen dump from the Credit Control
Data Base
reflects that the number of the machine Mr Matala had was
VSZ124. Exhibit DD2 reflects that machine VSZ071
was in a
Sebokeng Zone 7 and had been retired per Likomang. This is the
same person whose reference appears on CC2.
On the face of it
there is a conflict as to which machine Matala possessed.
There is no question of
the identity of the machines which were recovered. The only
relevance the identity issue has is whether
or not the evidence of
Matala established that VSZ071 had been stolen from him. It is
unnecessary to resolve this issue. Eskom
owned all the machines at
all times. The person who possessed the machines in the two
flats were never authorized by Eskom
to possess them. Theft is a
continuing offence. Whether or not the persons who possessed the
machines in the flats actually stole
them from the person authorized
to possess them does not have to be proven. Anyone in possession of
the machines would know that,
absent consent from Eskom the
possession was unlawful and hence that they were in possession of
stolen goods.
The
machines’ data had not been collated as required, from the time
that each machine was removed from the possession of Eskom.
This fact
establishes that the machines were removed from the control of Eskom
at or about that particular time. The fact that
the data was not
collected goes to show also that the person using the machine had no
permission to do so. The theft of the
other machines was
established in the normal way.
There is in my view a
simpler solution to the problem. No person who possessed any of the
vending machines could possibly have believed
that those machines
were lawfully possessed, considering the nature of the machines and
the circumstances in which the machines
operated. No person who
came into contact with the machines, situated as they were, in a flat
printing vouchers could possibly
have believed that these machines
were not stolen.
In
my view the possession of this type of machine is similar to the
possession of an ATM. No person who found an ATM in a
flat
could believe that the ATM was lawfully there.
In
analysing the evidence, I must have regard to the totality of the
evidence before me and draw inferences from the facts which
I find to
be proven.
See
S v Toby
2004 (1) SACR 534 which contains
a convenient summary of the cases. See also
S v van der Meyden
,
1999 (1) SACR 447 (W) at 448 H – 450 C.
The facts in my view establish theft of the vending machines.
The
question which arises in relation to the evidence is what all the
evidence means. The objectively established evidence,
concerning the machines and the data relating to their use,
establishes the identity of the machines and all the data relating
to
their use over the period. The data establishes, in respect of each
of the counts 8 to 78 287, that vouchers were issued
reflecting
the right to receive electricity for certain amounts, on the dates
and in respect of the meter reflected on the voucher.
For
the reasons which I have given earlier, I find that the vouchers were
used and that electricity was actually supplied in the
amounts which
appear upon the vouchers on or about the dates reflected on the
vouchers. All the factual requirements in respect
of counts 8
to 78 287 were accordingly established by the State, leaving
only one issue to be determined namely who the person
was who
committed the acts proven.
The
State led the evidence linking the accused to the flats where the
machines were found.
The
State also advanced evidence to link the accused to the offences by
furnishing evidence of the meter box numbers of the meter
boxes at
their places of residence. This evidence if accepted would link
meters for which vouchers had been printed to those meters.
If
the meter numbers matched those controlled by the accused then this
would establish a link of the accused to the machine which
printed
the vouchers.
Mr Mogapedi who
works for Komodo Investigative Services who had been seconded to
Eskom was authorised by Eskom to visit the
premises as if he was an
Eskom employee. He was issued with appropriate documentation
reflecting his authorisation by Eskom,
in the form of some identity
document and was directed by Eskom to attend upon the homes of the
three accused.
He
went to the house of Accused 2, he entered upon the premises without
permission of any person, as he found none there. He read
the number
of the meter. The meter is situated on the outside of the
house, but on the inside of the property.
He
went to the house of accused 3, a woman opened the door, he asked to
check the meter box, showed his card and was shown the meter
box and
wrote down the number.
He
went to the house of accused 1, entered upon the premises and
knocked; there was no response. There was a person working
in
the garden to whom he could have, but did not, speak. He found
the meter box attached to a wall outside the house, but
inside the
property. He wrote down the number and on his way out, he met
accused 1. Accused 1 asked him, whether
or not, he the
witness, could organise a voucher machine for him. He declined
to do so.
The
issue was raised whether or not the Constitutional rights of the
accused had been invaded. They have a right to privacy and
a right to
give consent to invasion of their property.
In
respect of accused 3, it seems to me there was consent. In
respect of accused 1 while there was not prior consent, there
appears
in my view to have been some form of tacit consent subsequent to the
meter number having been obtained. Insofar as
the right of
privacy of number 2 is concerned, it appears to me that his rights
were invaded, even although the meter was readily
accessible.
The
submission was made that by reason of the provisions of the
legislation governing electricity supply and in particular the
Electricity Regulation Act 4 of 2006, that persons authorised by
Eskom had a right to enter upon the premises to inspect meters
and
that, that right overrode rights of privacy (Section 22:
Electricity Regulation Act). The rights of a person,
who wishes to access the meter, are contained within Section 22 (2)
which provides the mechanism by which access is to
be obtained.
This requires, if possible for arrangements to be made with the legal
occupant of the premises, prior to entry
upon the premises and an
obligation to adhere to all reasonable security measures of the
occupant or owner of the premises.
In
relation to accused 2, it appears that no arrangements could be made:
there was no one home. The same possibly applies
to accused 1,
in the sense that there is no indication that the person upon the
premises had the right to give consent. I
am entitled to admit
the evidence if it is fair that I should do so. In my view, it
is fair to admit the factual evidence.
The evidence is of an
objectively ascertainable fact that continues to exist. The accuracy
of the evidence cannot be cogently challenged
and indeed was not
challenged. The invasion of rights was of a non-invasive nature. No
force or improper means of gaining access
was used by Mogapedi.
In my view, the evidence is admissible.
It
was suggested to the witness, Mr Mogapedi, that he was
misrepresenting his position as he was not an employee of Eskom.
He is employed by an independent contractor, contracted to Eskom to
perform certain work for it as and when it requirs. Eskom required
him to perform this work and sanctioned its performance by providing
him with the wherewithal to do so. There was no misrepresentation.
A
suggestion was made that the reading of the meter number, as opposed
to other data on the meter, did not constitute an exercise
of rights
under the Act to which I referred. In my view, that submission
is ill founded, having regard to the wording
of the section.
The
relevance of meter numbers is that certain of the vouchers comprising
Exhibit F have meter numbers which correspond with
the meters
used by some of the accused. Exhibit HH sets out in
respect of accused 2 and 3 that vending machine VSZ124,
VSZ141 and
WKT001 had at times printed vouchers for use on their meters.
All that this evidence shows in relation to accused
3, is that
someone bought a voucher bearing that meter number for the amounts
and on the dates set out. There is no evidence
that that person
was accused 3. There is similarly no evidence that accused
3 knew of the existence of these vouchers,
or in any way came into
contact with them. The same applies to accused 2 in the abstract.
Once the evidence is placed in its proper
context however it provides
corroboration for a finding that accused 2 participated in the
commission of the offence.
What if one voucher made
by a machine and sold was not used by the customer? There is a link
beyond reasonable doubt between the
consumption of the electricity
and the use of the vouchers. Customers who buy vouchers use
them. There is a possibility that
if one or more might have not been
used in the sense as it was lost or not used for some unknown reason.
The consequence, so it
is submitted, is that there is no proof of any
of the charges of theft of electricity. The submission is founded on
the premises
that as one voucher is lost, it could be any one
relating to any charge hence no single charge is proved.
In
my view, the solution to this problem lies in the fact that vouchers
were a valuable asset and there is no evidence, even remotely
suggesting otherwise than by speculation, that any might have been
lost. The evidence simply does not found the problem which
it
is required of me to solve.
The
remaining question which arises irrespective of the link of the
accused to the events is whether or not electricity can be stolen.
In
order for a theft to take place, the property which is removed must
be a thing capable of being stolen. According to Roman
and
Roman-Dutch Law as a
contrectatio
was the handling of a
thing, theft could not be committed of an incorporeal thing which
could not be touched and so could not be
taken in hand. The
general rule seems to be that only corporeal or movable things are
capable of being stolen and thus incorporeal
property cannot be
stolen. See
South African Criminal Law and
Procedure
, Volume 2, 3rd edition by J R L Milton
page 600. Property stolen must be “’
n
selfstandige deel van die stoflike natuur.” See
Snyman, Strafreg
3de uitgawe,
page 493.
It
has long been recognised that rights of action (rights in chose)
having no corporeal existence, cannot be the subject of theft.
See for example, the chapter on
Larceny in Wharton’s
Criminal Law
, Volume 1 paragraph 878 and following and
Glanville Williams Textbook of
Criminal Law
,
2nd Edition page 736.
The
fact that an incorporeal cannot form the subject of theft, has been
recognised as a difficulty, particularly where money and
shares are
concerned. The question was left open in
R v Milne
or
Erleigh
, 1951 (1) SA 791 (A). The
fact that an account holder is not the owner of money in his bank
however, does
not mean that he is not a person with a special
property or interest therein, such as to result in the monies being
capable of
theft. See:
S v Kotze
,
1961 (1) SA 118 (SCA). The Supreme Court of
Appeal has held that a person who receives monies into his
bank
account in his name, knowing that he is not entitled thereto and who
uses them commits theft. See
Nissan South Africa (Pty) Limited v Marnitz
NO and others
(
stand 1 at 6 Aeroport (Pty) Limited
intervening
), 2005 (1) SA 441 (SCA) at paragraphs 24
and 25.
The
underlying objection to holding that an incorporeal is capable of
theft is the requirement that there should be a
contrectatio
.
Inasmuch as a taking is required, so the argument goes, there can
only be the taking of a physical movable. This matter
was dealt with
directly in
S v Harper and Another
,
1981 (2) SA 638 at 664 and following which held an
incorporeal capable of theft.
This concept has been
recognised in our society, for example in Nissan supra. In the modern
day there are more complicated transactions
than existed historically
and hence than were considered historically. In Nissan’s
case, the thief received into his
bank account a credit independently
of any action taken by him, which resulted in the amount reflected as
standing to his credit
being increased. In the ordinary course these
credits are owned and possessed by the bank. The customer has only a
special interest
to them arising out of the contract he has with the
bank. The credits exist electronically and constitute a cash value
sounding
in money. The rights reflected by the credit accordance with
the customer/banker contract however vest in the customer who can use
the credits at his will. The customer whose account was debited to
create the credit in the other customer’s bank account
has
diminished claims against the bank in his account. On the authority
of Nissan such person has lost a thing capable of being
stolen and
that thing is stolen when the customer uses the credit to which he is
not entitled. There is no physical handling of
anything.
Hence the
contrectatio
is constituted by an appropriation of funds, which already exist in
his account but, to which the customer is not entitled.
This is
not a
contrectatio
constituted by a physical removal of
something from the owner. It is a taking of an electronic
credit given by mistake and
not processed or owned which is used
deliberately against the interest of the owner. The
contrectatio
is constituted by an appropriation of a
characteristic which attaches to a thing and by depriving the owner
of that characteristic.
Inherent in the finding
in Nissan's case is that this appropriation of a characteristic
attaching to a thing does constitute theft.
Once this
understanding of what can be stolen is reached, the subsequent
decisions which are all collated in South African Criminal Law
and Procedure (supra) at 601 become explicable.
A
decision which is out of step with that thinking, which has
been in existence for many years now, is
S v Mintoor
,
1996 (1) SACR 514 (C) at 515 where it was held
that electricity is an energy and that energy is incapable
of theft.
The learned Judges, who reached that conclusion, had no regard to the
authorities (some of which postdate the judgment)
to which I have
referred in relation to the appropriation of a characteristic
attaching to a thing and merely adopted the Glanville
Williams
reasoning as authority for the proposition that electricity, could
not be stolen. S v Harper was not considered.
The minority judgment in Milne earlier cited supra was not
considered.
It
is necessary to consider what electricity is in this context.
Eskom creates electricity by the use of fuel sources which
power
turbines. There is a cost involved in the creation of the
electricity produced. That electricity is inserted into a
grid. At
points on the grid, there are consumers who, if Eskom permits them,
may receive electricity and use such electricity.
That right to
receive and use the electricity, is subject to terms and conditions
which Eskom imposes upon its consumers and to
which they agree.
One of the requirements is the obligation to pay money for the right
to receive measured quantities of
electricity.
Eskom, when it provides
the electricity, does so using closed circuit. The flow of
electricity is dependent upon the flow of electrons.
Eskom creates
energy which results in electrons flowing (this is what we call
electricity). No electrons are lost.
The characteristic
attached to the electrons is that when they are driven in this way,
they are energized and capable of driving
a load. The energy does not
exist as an abstract concept it exists in reality in the form of
energizing electrons.
The
electrons which are driven, and which, while travelling we call
electricity, are the free electrons moving through the circuit.
They
belong to, are processed and released by Eskom. Eskom has the
countrywide grid and the consumer has the tiny portion
of the circuit
attached to that grid which comprises the circuitry in his house
after the meter. The number of electrons
within the customer’s
circuitry is insignificant by comparison to the number of electrons
in the grid. The process
by which the electricity is delivered
is that as an electron travels into the customer’s circuitry,
one leaves the customer’s
circuitry returning to the grid.
In this way there is a flow of electrons which remains in balance.
The number
of electrons which enter and leave the circuit of
each customer, as I have stated, are insignificant in relation to the
total number
of electrons in the grid.
That being so for all
practical purposes, once the customer uses the circuit and allows
electron into his circuitry, the electrons
of Eskom remain within his
circuit, in substitution for those electrons having departed.
In this way, the electrons change
position, having originally being
possessed by Eskom and subsequently being possessed by the consumer.
The characteristic which
attaches to the electron is the energy by
which it moves. That characteristic is consumed when the
electricity passes through
a load in the customer’s residence
on the customer’s circuit. The energy is transferred into
the load used by
the consumer (a kettle, a light, or other electrical
appliance). That characteristic and the extent to which it has been
used or
transformed by the use of the electrical appliance is
measureable. That characteristic is the characteristic which
Eskom
chooses to produce and sell to its customers. Once that
characteristic, energy, is used by the electrical appliance or the
load, it is no more.
This also is the solution
to the question of whether or not there has been a permanent
deprivation. Electrons are not lost
and eventually return to
the grid from the customer’s circuitry. However the
characteristic attached to the electron, namely
the force and energy
it has while it is being driven towards and through the customer’s
circuit is removed from it.
It is possible to understand this
by considering a stream of water. If a stream of water is
pumped up a distance above the
ground in a closed circuit and allowed
to fall to the ground again, the force used to pump the water up
equals the force with which
the water falls back.
The
falling water has a particular characteristic, it is imbued with
energy. That energy, absent any interference with the
flow, is
not lost and so the water will strike the bottom with a degree of
force. If however, a load is inserted on the downward
fall of
the water, for example, a water mill, or paddles, the force of the
fall is transmitted into energising the turbine or paddles
or other
load put in the way and the force with which the water hits the
bottom is reduced by the extent of the load. So the water
after it
strikes the load will fall more softly and with less force. It
is immediately apparent that the characteristic of
the water before
the load and the characteristic of the water after the load is
different. It is this difference which is
lost that constitutes
the characteristic lost by use of electricity.
I
consider another example: if electricity is not capable of being
stolen, then anyone would be entitled without permission of the
owner
to attach a load to his batteries and deplete the energy within them,
thereby rendering the batteries useless. Yet nothing
will have been
stolen. Nothing physically has been taken from the battery, however
its characteristics have changed.
It
appears to me that modern day society has already advanced and
accepted that there can be theft of this nature. See for
example the informative article by C R Snyman, “
Die
gemeenregtelike vermoeiings misdade en die eise van ons moderne
samelewing
,” 1977 SACC 11
particularly at 14.
It
has long been recognised that the abstract and incorporeal nature of
a right, which has been taken in the context of notes and
coins is a
loss. See for example,
S v Scoulides,
decided
in the 50’s (1956 (2) SA 388 (AD) at 394 G).
The
same reasoning applies to the submissions made in relation to
electricity credits.
It
was submitted that I should consider developing the Common Law
to encompass energy as a thing capable of theft. In
my view, I
do not have to do so and I do not deal further with this issue.
I
now consider whether or not the State managed to establish that the
accused were the persons who committed the acts which I find
established. Insofar as accused 3 is concerned, there is no
evidence whatsoever, other than the following few matters.
She
had a contractual right to occupy the flat in Sasolburg, but as a
fact she was not occupying it. The electricity meter
where she
stays has a number which is reflected on vouchers as I have dealt
with earlier. There being no evidence that she had
anything to do
with the vouchers raises no more than an unsubstantiated suspicion.
In my view, there is no evidence entitling any
court to convict
accused 3 and I propose acquitting accused 3 in due course.
As
far as accused 1 and 2 is concerned, their direct evidence in court
was a disavowal of any knowledge of the equipment and the
presentation of a variety of facts distancing themselves from the
physical evidence contained both within the flats and the bag
found
in the BMW.
Insofar as the Sasolburg
flat is concerned, I found already that accused 1 had the key to the
flat, that he opened the door and
that access was gained in
consequence thereof. His version is both improbable and not in
line with the factual evidence before
me. It is simply untrue
on the readily ascertainable facts.
Accused 1 in addition,
was linked to the Sasolburg flat by reason of his involvement with
the conclusion of the contract between
accused 3 and the landlord.
That flat had been obtained for himself and number 3 to reside in,
but they never lived there
according to him. Notwithstanding this,
the lease was kept in place and no tenant was found when he went
there. In my view,
that is decisive in establishing that
accused 1 had knowledge of the activities which were taking
place within the Sasolburg
flat and that he possessed it.
In
my view, he was a poor witness. He was an extremely clever
witness, as was accused 2 and my impression was that the evidence
presented was tailored to meet the cross-examination as and when the
inconsistencies and flaws in the evidence were presented to
the
accused.
As
far as the Westonaria flat is concerned, he claimed to have been en
route to the flat, as a favour to accused 2, but also with
a view to
a romantic liaison. He claimed that he did not have a key to
the flat. It appears to me extremely improbable
that accused 1
would have travelled the distance which he claims he travelled,
without a key, without knowledge as to whether or
not he would at all
be able to gain access to the flat, otherwise than if the occupant
was there. Accused 2 had previously
called the occupant and
never gained access as accused 2 had been unable to find her. That
was the reason why accused 1 was being
asked to go there by accused
2. Accused 1 on the evidence had little prospect of
gaining access.
It
seems improbable to me that the accused would travel there, not
knowing whether or not the occupant was there, or would let him
in or
would agree to him pursuing his romantic interest with his companion,
even assuming he was let in.
The
whole version appears to me be improbable and designed to meet the
State’s case. When there is added to this improbability,
the fact that accused 1 hurried away from the flat, after he spoke to
the Sherriff, his version becomes even less likely.
In
addition, during his evidence he made a series of statements about
his contact with accused 2 at the time he left the flat concerning
when and how he could have, perhaps may have, found accused 2, all of
which appeared unusual. Why could he have not simply
have
phoned accused 2 from the flat and left a message for accused 2 who
at the time was underground working. The reason
is that accused
1 needed to escape; he needed to be away from the flat as soon as
possible. He feared being at the flat where
he would possibly
be arrested. Hence, he hurried away and only then phoned
accused 2.
Contained within the
Westonaria flat was equipment similar to that contained between the
Sasolburg flat. The statistical chances
of a person being
involved and present at the scene of different flats in different
cities containing similar equipment are nil.
The factual
probability is far greater that accused 1 was involved with
activities, both at the Westonaria and the Sasolburg flats.
As
far as the connection of accused 2, to the events in question is
concerned, the evidence against accused 2 consists of his links
to
the Westonaria flat.
Accused 2, admitted that
he had occupied the flat at a point in time, but denied that his
occupation was in place at the time of
the discovery of the
electricity machinery. His evidence was that a third party was the
tenant of the flat and that third party
had died early in May 2008.
Accused 2 said that the third party had asked him whether or not
there could be another occupant
together with her in the flat and
that he had agreed to that. He had been to the flat on several
occasions, but had been
unable to gain access. He described the
one occasion when he had gone there and heard music playing, but had
been unable
to gain access. It was for this reason that he had spoken
to number 1, to attempt to gain access. His working routine
impeded
on his ability to easily have time available to gain access
to the flat. He was unable to identify the tenant, as he had
never being told who the third party had allowed to occupy it.
This was the reason why he was unable to identify the tenant
in any
way or lead the police to such tenant. This evidence is improbable
and was fabricated to create a ghost occupant.
Some of the articles in
the flat were admittedly accused 2’s, for example the pool
table. He gave no explanation why
the pool table would have
been left behind at the time that he had vacated the flat. It
seems to me unusual that a person
vacating the flat would not take
all this things including the pool table. It is much more likely it
was left there deliberately.
Accused 2 gave an
explanation for his driving the BMW, namely that he could not use his
own car that day and so he had borrowed
his brother’s car.
He claimed not to have any knowledge of the vouchers Exhibit F which
were found within it.
This claim of his must however be untrue,
having regard to the fact that certain of the vouchers are directly
linked to the accused,
they reflect the serial number of the meter
which he uses at his home and those vouchers were generated as I have
dealt with previously,
by the vending machines which had been stolen,
namely, VSZ124 on 3 May 2008, VSZ141 on 18 March 2008
and WKT001
on 9 April 2008.
Having regard to the
mechanism by which the vouchers are printed, it is apparent that the
person, who bought these vouchers, bought
them for use in a
particular meter namely accused 2’s meter. It is highly
improbable that this purchaser would have
been the brother of accused
2. There is certainly no claim by accused 2 that it was his
brother who had generated these vouchers.
These vouchers beyond
reasonable doubt link accused 2 to the activities of the machines. I
find that the vouchers in the BMW were
in the possession of accused 2
who knew of them and who had generated them.
The
further difficulty which accused 2 faces in regard to the Westonaria
flat is his inability to explain the documents contained
within
Exhibit J. These documents were found within a kitchen drawer in the
Westonaria flat.
The
explanation of accused 2 in respect of these documents was that the
occupant of the flat had collected his mail. The problem
with
this explanation is that the documents in question were not contained
within envelopes. If the tenant had opened the envelopes
one would
expect to find the envelopes in the drawer. They were not
included amongst the documents is a payslip
which there
is no evidence was posted, but which presumably was handed to the
accused at work.
In
addition, contained within the series of documents, are documents
which are not commonly posted. These are the registration
certificate and the licence for the Wrangler. The licence receipt for
the Wrangler bears a date printed on the bottom, September
2006. The expiry date of that licence was the next year, so this was
a document generated in 2006. On the version of the accused
this
document must have been posted to the flat during the occupancy by
the deceased in 2008. This is simply incredible and
against the
probabilities. The document must have been posted when it was
created, namely in 2006. The licence bears the
date when it was paid
and must have been paid in person. It had the circle cut out to
remove the disk that is attached to
the vehicle. That disk is clearly
missing on both the documents. This means that accused 2 had
had those documents.
The presence of these documents within the
flat clearly indicates that accused 2 had been within the flat in
2008, at the time
when he said that he had not been there. If
he went into that flat, then obviously he knew what was happening in
that flat.
There are a number of
other factors which militate against accepting the version of accused
2 in relation to the flat. His
version in relation to the
activities of the deceased’s relatives and the removal of the
goods belonging to them is completely
implausible. According to
him they left items behind and took only a fridge. The items
left behind were easy to move
and on the face of it valuable.
They are listed in the sheriff’s inventory. If they had
come to remove goods
they would have removed all.
Accused 2 incurred huge
debt in 2007. He had the Wrangler to pay for; he had the flat
in respect of which he did not pay the
levies, and cost of the flat
in which he lived. His expenses far exceeded his income. He was
patently strapped for cash towards
the end of 2007 and had not paid
rental. There was a judgment in the process of being taken
against him and yet he was content
to let the Westonaria flat lie
fallow for December and January and carry two months wasted rental.
These flats are in demand
and he could have let the flat virtually
immediately if he wished to. No cogent reason was provided for
him to retain the
flat, other than that he wanted to let it out to a
tenant. Why then did he not find a tenant in December? His
explanation
in this regard is in my view unacceptable.
The
simple fact is that he needed a venue for the activities being
conducted in relation to the vending machines. Once he
was
captured by the police he needed to explain why the flat was still
contractually his, while he was not using it and hence he
came up
with the version of a tenant. There is no doubt in my view that
accused 2, who is a clever man, opportunistically
found a reason why
the flat was his, but not in his possession.
Throughout his evidence
he invented and gave opportunistic answers to problems which were
posed to him. An example concerns
the letter which he claims
was forwarded from his previous address to the Westonaria flat.
This explanation was furnished
to avoid the inference that he had
been in the flat, as that letter in the ordinary course would not
have been delivered to the
Westonaria flat. The explanation
however fails as the letter is dated subsequent to his occupation of
the residence in Cosmo
which the accused currently occupies and to
which the letter would have been forwarded in the ordinary course.
It
is unusual that both accused 1’s and accused 2’s versions
in relation to the occupancy of the flats in question,
are similar.
Both were dependent on the existence of ghost tenants.
Accused 2 was unable to
deal properly with the question of the payment of rental for May.
Originally the version was that
the deceased had not paid for May at
the end of April. Subsequently it became that the deceased had paid
for that period and that
was why there was no rush to eject her.
Accused 2’s version
as to why accused 1 was sent to look at the flat is similarly
improbable and not acceptable. He
provided accused 1 with no
key; indeed he had no key to provide him with. The result is that he
sent accused 1 far out of his way
with the vain hope of meeting the
occupant and gaining access to the flat, something he himself had
been unable to do. For
the same reason that I do not accept the
version of accused 1 on this issue I do not accept the version of
accused 2.
It
seems much more likely to me that accused 2 left the pool table in
the flat to while away the hours while he printed vouchers
and that
accused number 1 was a party to the activities. The reason that
accused 2 was unable to explain properly and adequately
the affairs
concerning the relationship with the deceased’s relatives, is
simply because he had invented them as tenants.
It
is inconceivable that after the death he did not seek the keys from
the relatives. It is inconceivable that he did not
ask for
money for rent. It is inconceivable that he would have such a
casual approach to the occupation of the flat by them
after all, on
his evidence it contained documents and furniture.
Exhibit J12 is the
statement from accused 2’s bankers for the period ending
22 March 2008. The fact that this
document was found
within the Westonaria flat, is evidence that accused 2 was there
after the date when this was both issued, posted
and received.
Accused number 2 in
addition made the statement with reference to obtaining vouchers from
Michael. This statement has no place
in the version advanced by
accused 2 in court. It cannot but be that that it was an
opportunistic statement to explain a
situation with which he was
faced. That statement currently does not suit him and he has
abandoned it.
All
of the above indicate an intelligent devious person who invented what
he believed to be a plausible version.
In
my view beyond reasonable doubt accused 2 was linked to the
activities in fact within the Westonaria flat. Although accused
2 was not directly linked to the Sasolburg flat, it appears to me
that the evidence establishes beyond reasonable doubt, that both
he
and accused 1 were complicit in both the activities. The same
activities were being conducted at both venues. Accused
1 was
present at both venues.
Accused 1 and accused 2
have a friendly relationship with each other. Accused 2 was the
person who claimed to send accused
1 to the Westonaria flat. If
he was sending him to the Westonaria flat, knowing of what was
happening within that flat, as
I found that he did, then he both knew
of the activity and was complicit with accused 1 in the activity in
Westonaria. It
appears to me the State proved beyond reasonable
doubt the complicity of both accused with what was taking place at
both venues.
The
activities which were conducted at both the venues constitute
racketeering as contemplated by the Statute. See:
S v dos Santos
, 2010 (2) SACR 362
at 401. The activities of accused 1, in my view comprised
operating, managing and
participating in the enterprise.
Insofar as count 2 refers
to the management of the operation of the enterprise by accused 2 is
contemplated by Section 21F
of the Act. It is my view that
that management has been established.
In
analysing the evidence, I have attempted to rely pertinently on
factors which appeared to me to be so clearly established that
there
can be no controversy about them. There are other features of
this case, including hearsay evidence, which according
to the Statute
the State may rely upon, which further strengthens the State case
against the accused.
My
omission to deal with each and every one of those additional features
is not to be taken as being that I did not consider them
and insofar
as I have not dealt in detail with the repeat conduct and the pattern
of affairs, same is not to be taken as having
being ignored. It
is patent from the state of affairs produced by the vouchers, that
this was a repeated pattern and an ongoing
continuous activity. The
dates appearing upon the vouchers demonstrate this.
The
sole remaining issue, is the question of whether or not there has
being a duplication of charges. In this regard I rely
upon the
authority of
S v dos Santos
supra at paragraph 43
and following.
In
that case the Court relying upon
S v Whitehead and
Others
in paragraph 45, recognised that a single act may have
numerous criminally relevant consequences and may give rise to
numerous
offences and that the State is at liberty to prosecute all
such offences separately.
In
my view, the evidence established the guilt of accused 1 and 2 as
charged in the charge sheet.
I accordingly make the
following order, that accused numbers 1 and 2 are found guilty of the
charges levelled against them in the
charge sheet in their entirety.
Accused 3 is found not guilty and is acquitted.
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