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[2015] ZASCA 28
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Maringa and Another v S (20116/2014) [2015] ZASCA 28; 2015 (2) SACR 629 (SCA) (23 March 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20116/2014
Reportable
In
the matter between:
RESIMATE
EDWIN
MARINGA
......................................................................
FIRST
APPELLANT
DORAH
MADISHA
.......................................................................................
SECOND
APPELLANT
and
THE
STATE
................................................................................................................
/RESPONDENT
Neutral
citation:
Maringa v The State
(20116/2014)
[2015] ZASCA 28
(23 March 2015)
Coram:
Navsa ADP, Leach and Willis JJA and
Schoeman and Meyer AJJA
Heard:
11 March 2015
Delivered:
23 March 2015
Summary:
Section 155 and
s 156
of the
Criminal
Procedure Act 51 of 1977
—whether separation of trials is
mandatory where accused do not all face the same charges but where
the State alleges a common
purpose to defraud and there is a great
deal of overlap – to be decided on consideration of prejudice.
ORDER
On
appeal from:
Gauteng Division, Pretoria
(Potterill J and Bam AJ sitting as court of appeal):
1
The appeal is dismissed.
JUDGMENT
Schoeman
AJA (Navsa ADP, Leach and Willis JJA and Meyer AJA CONCURRING)
[1]
Seven accused were arraigned in the regional court in Pretoria facing
a total of 399 charges which included fraud, forgery,
uttering and
corruption. The first and second appellants were accused 1 and
accused 4 respectively. The first appellant was charged
with all of
the counts, barring those counts relating to the corruption charges.
The second appellant was charged with 34 counts
of fraud. Before any
of the accused pleaded, the two appellants objected to being charged
together with their five co-accused.
Their objection was premised on
the supposition that it was contrary to the provisions of ss 155 and
156 of the Criminal Procedure
Act, 51 of 1977 (CPA) to charge them
together with the other co-accused where they did not all face the
same charges. The application
was dismissed by the magistrate and a
subsequent appeal to the North Gauteng High Court was also
unsuccessful. The court
below, without considering s 16(1)
(b
)
of the Superior Courts Act 10 of 2013 (the Act), granted leave to
appeal.
Leave
to appeal.
[2]
The Act commenced on 23 August 2013. In terms of s 16(1)
(b)
of the said Act ‘an appeal against any decision of a Division
on an appeal to it, lies to the Supreme Court of Appeal upon
special
leave having been granted by the Supreme Court of Appeal.’
[3]
Section 17(3) of the Act provides that:
‘
(3)
An application for special leave to appeal under section 16 (1)
(b)
may be granted by the Supreme Court of Appeal on application filed
with the registrar of that court within one month after the
decision
sought to be appealed against, or such longer period as may on good
cause be allowed, and the provisions of subsection
(2)
(c)
to
(f)
shall apply with the changes required by the context.’
[4]
The appellants applied to the court below for
leave to appeal on 23 September 2013. By that time the Act was in
force and the transitional
provisions in s 52 of the Act were not
applicable as the proceedings were not pending. Judgment on appeal
was delivered on 17 September
2013 and the application for leave to
appeal was filed on 23 September 2013. The court below granted
leave to appeal to the
SCA on 18 October 2013.
[5]
It is clear from this timeline that it was not competent to apply to
the North Gauteng High Court for leave to appeal. The latter
court
was sitting as a court of appeal and therefore, in terms of
s 16
(1)
(b)
of
the
Superior Courts Act this
court is the court to which an
application for special leave to appeal should have been
directed.
[6]
The jurisdictional basis for an appeal to this court was thus
absent.
[1]
Subsequently,
on the date of the hearing of this appeal, counsel for the
appellants, having been apprised by us of the applicable
provisions,
applied for special leave to appeal to this court. Counsel for the
State did not oppose the application. Special leave
to appeal was
granted. I proceed to deal with the merits, beginning with the
background facts.
Background
[7]
The broad outline of the State’s case, as is evident from the
charge sheet and the substantial summary of facts, underpinning
the
charges is as follows. The first appellant was an attorney,
practicing in Johannesburg, while the second appellant was
an
employee of the City of Johannesburg. The City of Joburg Property
Company (Pty) Ltd (JPC), was a company wholly owned by the
Johannesburg Metropolitan Municipality (JMM). JPC managed and
controlled property owned by the JMM. The JMM was the owner
of
all the properties mentioned in the charge sheet. During the period
January 2010 to March 2010 the JMM at no time had the intention
to
sell the properties mentioned in the charge sheet, did not pass any
resolutions to sell or alienate the said properties and
did not enter
into any agreement of sale of the properties with any entity,
including the company, Eildoug Investments (Pty) Ltd
(Eildoug).
First appellant, so it was alleged, devised a fraudulent scheme in
terms of which Eildoug, de facto controlled
by him, would ostensibly
buy the properties of the JMM and immediately sell the properties to
other unsuspecting and innocent persons
or entities.
[8]
The State’s case was expressly that the seven accused acted in
pursuance of a common purpose in that the relevant properties
were
identified, information on the properties collected and thereafter
marketed. Some of the buyers were reassured as to
the
legitimacy of the transactions and the possibility of the properties
being rezoned. It was alleged Peet Viljoen (Viljoen),
an attorney,
and the second accused, completed the transfer documents and
subsequently the properties were transferred from the
JMM to Eildoug
and then simultaneously transferred to the unsuspecting purchasers of
the properties.
[9]
These transactions, so the State said, necessitated the completion of
deeds of transfer and the forgery of documents to enable
such
transfers. For Eildoug to buy the said properties, the
following documents had to be forged and were fraudulent: the
sale
agreements, the resolutions of the JPC and the JMM, powers of
attorney to transfer property, affidavits and applications in
terms
of
s 68(1)
of the Regulations under the
Deeds Registries Act, 47 of
1937
. Transfer duty receipts or exemption certificates were obtained
by bribing an official in the South African Revenue Service.
Furthermore,
the deeds were submitted to The Deeds Office, Pretoria
where accused number 7, who was there employed, executed the deeds of
transfer
and was paid R5000 per registration.
[10]
The State’s case against the first appellant, as previously
stated, was that he was the person who devised the scheme
to defraud
innocent purchasers of properties of which the JMM is the owner. He
was the person who instructed a certain Mr Africa
to collect relevant
information about the properties. He met with Viljoen, also an
attorney, who completed the necessary transfer
documents and he
forged, or instructed others to forge the necessary signatures on the
documents. Where the forged documents
had to be commissioned,
the first appellant directed people to firms of attorneys before whom
the affidavits were attested and
he provided the funds for obtaining
clearance certificates that were needed to effect transfer of the
properties. The State alleged
that the value of the money collected
by the sale of the properties and paid to the first appellant was
R10,16 million.
[11]
The second appellant’s involvement concerned properties
ostensibly transferred from the JMM to Eildoug and sold by Eildoug
to
Zambrotti Investments 31 (Pty) Ltd. The State alleged that on 25
February 2010 Zambrotti bought six properties for R12 million
from
Eildoug, but Mr Sulliman, a director of Zambrotti, required
confirmation that the properties would be rezoned. The second
appellant wrote a letter on the letterhead of JPC that the properties
had been transferred to Eildoug and all internal requirements
had
been complied with and that there were no objections to the rezoning
of the properties. Mr Sulliman, on behalf of Zambrotti,
entered into
further sale agreements that were offered to him by Viljoen. Mr
Sulliman requested a meeting with the second appellant
when the
further agreements were concluded. At this meeting the second
appellant confirmed the validity of the transfers and confirmed
that
correct procedures had been followed. The second appellant,
thereafter, in writing, again confirmed the validity of the
transactions
and the fact that there were no objections to the
rezoning of the properties.
[12]
The appellants argued that it is improper to charge the appellants
with their co-accused as they were not all charged with
the same
offences
(s 155
of the CPA). The charges faced by the appellants and
their co-accused are the following, as was set out in the judgment of
the
court below:
(a) Counts 1-30 are
fraud charges. The first appellant is charged with all the counts,
but the second appellant is not charged with
counts 13, 28, 29 and
30.
(b)
Counts 31-46 are alternative charges of theft to counts 1-30. The
first appellant is charged with all the counts, but the second
appellant is only charged with counts 31-41.
(c)
Counts 47-70 are charges of forgery. The first appellant is charged
with all the counts but the second appellant is not charged
with any
of the counts.
(d)
Counts 160-297 are charges of uttering. The first appellant is
charged with all the counts, but the second appellant is not
charged
with these counts.
(e)
Counts 298-349 are charges of corruption (giving) with none of the
appellants being charged with these counts.
(f)
Counts 350-374 are charges of corruption (giving); and
(g)
Counts 375-399 are charges of corruption (receiving) with which the
appellants are not charged.
The
first appellant therefore does not face 100 charges of corruption, be
it giving or receiving and the second appellant only faces
34 charges
of fraud.
This, it was submitted, is
contrary to the provisions of
s 155
and
156
of the CPA, and it was
accordingly impermissible and irregular to charge the appellants with
the other accused.
Sections
155
and
156
of the
Criminal Procedure Act.
[13
]
Section 155
of the
Criminal Procedure Act provides
:
‘
155 Persons
implicated in same offence may be tried together
(1) Any number of
participants in the same offence may be tried together and any number
of accessories after the same fact may be
tried together or any
number of participants in the same offence and any number of
accessories after that fact may be tried together,
and each such
participant and each such accessory may be charged at such trial with
the relevant substantive offence alleged against
him.
(2)
A receiver of property obtained by means of an offence shall for
purposes of this section be deemed to be a participant in the
offence
in question.’
While
s 156
provides as follows
.
‘
156 Persons
committing separate offences at same time and place may be tried
together
Any
number of persons charged in respect of separate offences committed
at the same place and at the same time or at about the same
time, may
be charged and tried together in respect of such offences if the
prosecutor informs the court that evidence admissible
at the trial of
one of such persons will, in his opinion, also be admissible as
evidence at the trial of any other such person
or such persons.’
[14]
The purpose of
ss 155
and
156
is to avoid a multiplicity of trials
where there are a number of accused. This is where essentially the
same evidence on behalf
of the prosecution is led on charges faced by
all the accused.
[2]
It is
to avoid prejudice to both the accused and the prosecution.
[15]
The
trial court exercises a discretion to decide whether to allow a trial
to proceed or order a separation of trials. The way this
discretion
has to be exercised has been set out in
S
v Ntuli & others
:
[3]
‘
In
exercising its discretion the trial Court has to weigh up the
likelihood of prejudice to the applicant accused resulting from
a
joint trial against the likelihood of prejudice to the other accused
or the State if their trials are separated, and decide whether
or
not, in the interests of justice, a separation of trials should be
granted. "Prejudice" there means prejudice in the
sense
that no injustice should be caused to the party concerned, including
the State….
The weight to be given
to each of the relevant factors in the adjudication of this issue is
for the trial Court to assess in the
exercise of its discretion.
’
[16]
R
v Heyne &others
[4]
was a matter where three
companies and 15 natural persons were charged with fraud committed
over a period of two and a half years.
There, the case against the
accused was that the accused consistenly over the said period, had
acted in concert, created books
and documents containing false
entries and misleading omissions in order to deceive the police and
auditors. It was held
that:
‘…
[P]ractical considerations
must decide whether it is permissible to charge a person with a
course of conduct when what he has
done consists, not of an unbroken
spell of uniform behaviour, … , but of a series of closely
following similar acts,….
Those considerations require that in
a proper case a planned course of fraudulent conduct may be charged
as a single crime of fraud,
even if it might also be possible to
analyse it into a series of separate frauds. . . . It is true
that the period was a
very long one and it appeared from the Crown
case that
not
all the accused persons could have been associated with the course of
conduct over the whole period of its existence
.
But that was not a sufficient reason for holding that they could not
be charged upon a fraudulent course of conduct if they acted
in
concert to make a systematic series of false representations. Where
the participations of several collaborators have not covered
precisely the same period, particulars may be necessary to inform
them of the extent of their alleged participation, but the Crown
would not be precluded from charging them together on a course of
conduct basis. In each case it is necessary to decide whether
there
has been prejudice to the accused; in the present case there has been
none.’
[5]
(My
emphasis)
[17]
Counsel for the appellants, inter alia, referred us to
S
v Ramgobin
[6]
as authority for the proposition that it is not permitted to charge
different accused in the same trial where they do not all face
the
same charges. I am of the view that
Ramgobin
does
not support his contentions. In
Ramagobin
the
indictment against the 16 accused comprised a main count of treason,
allegedly committed from 1980 to 1985, plus five alternative
counts.
All the accused were joined in the main count and two of the
alternative counts but only some of the accused were joined
in the
other alternative counts. The state in that instance did not rely on
the provisions of
s 156
of the CPA, as the alleged acts were not
committed at the same place, or the same time, or at about the same
time.
[7]
It was argued
that the joinder of the accused with each other in one count of
treason was not permissible as there were a
number of different acts,
widely differing in time and place of committal by the various
accused. The court found that the ‘.
. . [P]ractice, therefore
of charging a series of acts committed by different accused at
different times over a period in pursuance
of one overall plan or
design as one offence, notwithstanding that each such act could form
the subject of a separate charge, is
well-established in our law, and
rests on Appellate Division authority.’
[8]
The court held that joinder of all the accused in one indictment on
the treason charge was competent and not irregular. This is
no
authority for the proposition that each accused had to be charged
with every offence in the indictment.
[18]
In
S
v Naidoo
[9]
the appellant was the second
of two remaining accused charged with theft, fraud and various
statutory offences and contravening
sections of the
Prevention of
Organised Crime Act 121 of 1998
. Prior to the start of the trial the
appellant brought an application claiming misjoinder as he had not
been charged with all the
charges levied at accused one. The
application was dismissed and on appeal to the full bench of the
court, the appeal was dismissed.
The court held that:
‘
For
each of the main counts, and the alternatives thereto, there is only
one set of facts which might result in a conviction on
the main
counts or on one of the alternatives. What is clear is that in
relation to each count, or alternative thereto, the evidence
relied
upon by the prosecution relates to the ongoing, continuing or
repeated participation of each of the accused, and in particular
accused 1 and the appellant in the illegal rackets in which they are
all participants. Despite the fact that the nature of the
part played
by each accused could be different from that of another accused, the
evidence would remain the same to prove the conspiracy
between them
or the individual counts on which accused 1 has been charged in
the alternative.
’
[10]
[19]
It is clear from the charge sheet that the alleged offences were
committed within a period of two months and were therefore
committed
at about the same time and place and were furthermore in furtherance
of a common purpose. The charge sheet enunciated
it. The scheme was
designed to fraudulantly sell property belonging to the JMM and to
transfer those properties to buyers in order
for the accused to
collect the proceeds of such sales. In order to succesfully effect
such transfers it was necessary for officials
in SARS and the Deeds
Office to co-operate in the furtherance of the common purpose,
otherwise the properties could not be transferred
and registered.
These officials were bribed and therefore the corruption charges are
part and parcel of the overall design of the
scheme. There is a
whole mosaic of evidence that will be necessary to prove the scheme
and the participation of the various
accused in its different facets.
[20]
The only prejudice to the appellants that was mentioned by counsel
was that the appellants would have to sit through a trial
while
evidence would be presented that would not relate to charges they
faced. In my view, the prejudice is exaggerated in
that the
corruption and other charges are but a part of the scheme that will
proved. On the other hand, if separation is ordered,
the State will
suffer prejudice. There will have to be three separate trials (for
the two appellants can then not be tried together)
where the same
witnesses will have to testify about the same facts. This is inimical
to the interests of the State and against
the principle that there
should not be a multiplicity of trials relating to essentially the
same facts and body of evidence. The
prejudice, asserted by the
appellants, is in the greater scheme of things, minimal.
[21]
Furthermore, the magistrate exercised his discretion in refusing a
separation of the trials and there has been no indication
why such
discretion has not been exercised judicially.
[22]
For the above reasons the following order is made.
The
appeal is dismissed.
______________________
I
SCHOEMAN
ACTING
JUDGE OF APPEAL
APPEARANCES
For Appellant: M M
Hodes
Instructed by:
I Mabunda Attorneys,
c/o M L Kekana Inc, Silverton, Pretoria
Symington
& De Kok, Bloemfontein
For
Respondent: A G Janse van Rensburg
Instructed by:
Director of Public
Prosecutions, Pretoria
Director of Public
Prosecutions, Bloemfontein
[1]
Pharmaceutical
Society of South Africa & others v Tshabalala-Msimang &another
NNO; New Clicks South Africa (Pty) Ltd v
Minister of Health
2005
(3) SA 238
para 22
.
[2]
E du Toit et al
Commentary
on the
Criminal Procedure Act
Service
Edition 52 (2014) at 22-44.
[3]
S
v Ntuli & others
1978
(2) SA 69
(A) at 73.
[4]
R
v Heyne &others
1956
(3) 604 (A).
Heyne
did not refer to ss 327 and 328 of the Criminal Procedure Act 56 of
1955, the precursors of ss 155 and 156 of the CPA.
[5]
Heyne
616G-617B.
[6]
S
v Ramgobin & others
1986
(1) SA 68 (N).
[7]
Ramgobin
at
75D.
[8]
S
v Ramgobin
at
79G.
[9]
S
v Naidoo
2009
(2) SACR 674 (GSJ).
[10]
Naidoo
para
18.