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[2019] ZAGPJHC 443
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Branco v S (A86/2016) [2019] ZAGPJHC 443 (31 October 2019)
SAFLII
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL
DIVISION,
JOHANNESBURG
CASE
NUMBER: A86/2016
In the
matter between:
BRANCO
CARLA CHRISTINA
PESTANA
Appellant
and
THE
STATE
Respondent
J U D G M E N T
SKIBI
AJ
[1]
The appeal is against conviction only by leave of the regional court
sitting at Protea. That court convicted the appellant
on one
count of fraud and sentenced her to five years’ imprisonment
which was wholly suspended on condition that she compensates
Mutual &
Federal insurance Company in terms of section 300, of the Criminal
Procedure Act
[1]
in the mount of
R66,565.00
[2] The appeal was noted
on the following grounds:
[2.1] The inference
drawn by the Court a quo does not exclude the reasonable inference
that the theft of the motor vehicle could
have been
planned…[indistinct] committed:
[2.1.1] By the
construction workers on the appellant’s premises at the time;
[2.1.2] By the other
people residing in the house at the time who had access and could
change the car keys with set of similar keys;
or
[2.1.3] That the
original key could have been used to steal the BMW motor vehicle.
[2.2] That the
evidence tendered by the State in respect of the key that was given
by the appellant to Mutual and Federal Insurance
Company, did not
establish that it was the same key that was provided by Esterhuizen…
[2.3] The learned
magistrate failed not to draw a negative inference from the State’s
failure to call Claude Schoeman or Hussein,
in order to give evidence
as to how they came in possession of the motor vehicle, and what the
applicant’s role was in the
crime in the circumstances where:
[2.3.
1] The aforementioned persons were arrested for the crime;
[2.3.2] They were in
possession of the aforesaid information;
[2.3.3]
They were not prosecuted and thus available to testify on behalf of
the State;
[2.3.4] There was a
total failure by the State to give an explanation as to why they were
not called having regard to the extensive
evidence provided by the
State.
[3]
Before dealing with the grounds of appeal the facts in brief are as
follows. The appellant’s vehicle, a white BMW with
registration
numbers L[...]GP was insured with Mutual & Federal Insurance
Company (the insurer) against theft or hijacking
in that in the event
of loss of her vehicle through theft or hijacking she would be
entitled to claim compensation to the amount
of R110, 000.00.
On 5 March 2009 the appellant reported to the Alberton Police Station
that her vehicle in question was stolen.
After opening a case
of theft she informed her insurance company, Mutual & Federal. A
claim for compensation of her loss was
submitted to the insurer.
Subsequently to the appellant having submitted the claim forms, she
sent by courier to the insurer the
key of her stolen vehicle.
Mutual & Federal processed the appellant’s claim and she
was paid the full amount insured
on 19 March 2009. After the
payment of the settlement amount to the appellant there was a
suspicion that she might have submitted
a fraudulent claim in respect
of the vehicle was allegedly stolen. In essence the case against the
appellant is that she misrepresented
the material fact that her BMW
was stolen when in fact it was not and that resulted to the insurer
suffering financial loss.
[4]
Mr Elias Oupa Khumalo (a member of the South African Police Service)
was involved in the undercover operation called Project
Cobra where
he was working as an agent. Mr Khumalo used to buy stolen and
hijacked motor vehicles. On 6 March
2009 Mr Khumalo was
contacted by one Claude Schoeman also known as Clavas, a member of a
crime syndicate. Clavas offered
to sell a white BMW to Mr
Khumalo. Mr Khumalo informed his commander, Captain Maleka
about the said transaction. Mr
Khumalo was informed to enquire
as to how much Clavas was selling the vehicle. After having
been informed by Clavas that
the vehicle will be sold by R10, 000.00.
Captain Maleka arranged with one inspector Van Dyk who was to
accompany Mr Khumalo
and they agreed to meet at Shell Garage at
Protea Gardens Mall. A technical equipment was installed by
inspector Vay Dyk,
surveillance camera and a recording equipment in
the vehicle Mr Khumalo & Inspector Van Wyk were travelling.
They met
with Captain Maleka who reminded Mr Khumalo about the
safeguards pursuant to the provisions of
section 252A
of the
Criminal
Procedure Act 51 of 1977
. Mr Khumalo and inspector Van Wyk were
searched and given the cash as agreed with the ‘target’
was to be given to him.
Mr Khumalo was directed by Clavas that
one Desmond will deliver the vehicle and he will have to give him
cash. The direction
led Mr Khumalo to the other crime syndicate
member, Hussein who also informed that one Desmond is bringing the
vehicle. He
ultimately met with the target and the transaction
for sale of a white BMW with registration numbers L[...]GP was
negotiated.
Mr Khumalo testified further that the target agreed
to sell the vehicle by R10, 000.00. After buying this vehicle he
drove the
vehicle to his handler, warrant officer Leopod Roestorff
and handed the key to him.
[5]
Warrant Officer Meshack Ndlela, a member of
the South African Police Service station at the Organised Crime Unit,
in the West Rand,
Soweto, was assigned as the investigating officer
of the fraud case against the appellant. He confirmed the evidence of
the agent,
Mr Khumalo and the work which was done by Project Cobra in
discovering the BMW vehicle which was allegedly stolen. He testified
that Project Cobra started in 2008 and was terminated on 10 January
2010. On 26 February 2010, he went to the appellant’s
place of residence where he took an affidavit from the appellant.
He asked her where she had parked her vehicle which was
allegedly
stolen on the day in question. He was told that it was parked
outside the gate. He was informed by the appellant
her vehicle
had one key and that the said key was subsequently sent to Mutual and
Federal after she submitted her claim. The appellant
informed warrant
officer Ndlela the name of the person who was handling her claim at
Mutual and Federal and Leon Esterhuizen whom
he interviewed in order
to get hold of the key. The key which was found from the
insurer could not operate the vehicle but
the key which came with the
vehicle when it was sold by the syndicate was working, could open the
doors, boot and could turn on
the ignition.
[6] Mr
Leon Esterhuizen, testified in the court a quo. He was employed
as a specialist investigator at Mutual & Federal
insurance
company. He was asked to bring the key which was posted by the
appellant after her vehicle was reportedly stolen.
He testified
that on 1 December 2008 the appellant took a comprehensive cover at
Mutual and Federal insurance company for her white
BMW vehicle with
registration number L[...]GP with the cover amount of R110,000.00
which includes loss due to theft, robbery or
hijacking or accident.
On 6 March 2009 the appellant submitted a claim which was processed
and paid on 19 March 2009.
According to Mr Esterhuizen the
vehicle owner had submitted the key of the vehicle. As soon the
insurer received the key
and claim documents form with the insured
details were clearly marked, filed with the registration documents
and locked away. He
personally tested the key which was in possession
of Mutual and Federal which had been delivered at the insurer by the
appellant
after the vehicle was allegedly stolen but could not
operate the BMW. His view was that there was representation made to
Mutual
and Federal that the vehicle was reportedly stolen whereas it
was not and a claim for loss was submitted and paid which prejudiced
the insurer and the public.
[7]
Miss Yolandi Beukes also testified during the trial. She was employed
as a service adviser at the Distribution Central at BMW
South Africa
in Rosslyn and also operated the BMW computer system. She testified
that on 14 July 2011 warrant officer Ndlela arrived
with two sets of
keys. She was asked to test the two sets of keys to ascertain if both
sets of keys are for the same BMW.
The keys were tested in a
reader machine which operated by a microchip device. The result of
the testing established that the key
that came with the agent is the
one belonging to the BMW with registration number L[...]GP, the
appellant’s vehicle. The
key which was delivered to the insurer
after the theft was reported was for a vehicle with registration
umber ND[...] and a VIN
[…]99. According to the evidence of
Yolandi Beukes one BMW cannot share the same VIN number because the
microchip is for
a specific vehicle.
[8]
Miss Lucy Dolo who was employed as administrative officer at the
department of Roads and Transport is another witness whose
evidence
was led in the court a quo. She testified that amongst her
duties she was doing auditing and an administration mark
for stolen
vehicles. She testified that she was approached by Mr Ndlela to
assist him in his investigation of a fraud case.
She used the
computer system programme called E-Natis and through which she
managed to detect the current and the previous registered
owners of
the vehicle in question. Miss Dolo testified that the vehicle
with registration number L[...]GP was registered
in the name of the
appellant on 7 October 2008 as owner and title holder. Before
then Mr MucCullum was the registered owner
as on 4 April 2008.
Before Mr MucCullum owned the vehicle it was owned by BMW Finance
Midrand.
[9] Mr
Charles Walter Norman testified in the court a quo. He
testified that he operated a business under the name Charles
and
Company. He knew the appellant through his cousin George Arthur Main.
His evidence was that he exchanged vehicles. On 1 December
2007 he
exchanged his BMW M3 with George whom he gave him a BMW registration
L[...]GP and he also gave cash to the amount of R5,
000.00. Mr
Norman said that the vehicle was registered in the name of Mathew
MucCullum. Mr MucCullum resold this vehicle
back to Mr Norman after a
short while. The vehicle was bought by the appellant for the
second time. Mr Norman said
that when he resold this vehicle it
had only one key. He said that when he resold it the vehicle was not
tempered with.
[10]
Mr Mathews MucCullum also testified and confirmed that the white BMW
with registration L[...]GP used to be his vehicle.
He confirmed
that he bought it from Charles and company and he resold it back to
him. His evidence was that he only owned
it for less than a
year and when he resold it its doors, windows and ignition were not
to tempered with. His evidence was
also that this vehicle had
one key.
[11]
On 12 April 2012 the prosecutor applied for inspection
in
loco
to be conducted at Lenasia police
station where the vehicle was parked. Although the application
was opposed the presiding
officer granted an order that the said
inspection in
loco
was to take place. The Court on its composition form ie in the
presence of the appellant and her attorney, the prosecutor as well
as
the court attended the inspection in
loco
.
[12] The Minutes of the
inspection in
loco
are recorded as follows:
“
Court
proceeded to Lenasia SAP13. It was the Court, counsel for the
State and counsel for the defence and others who were
unknown to the
Court. When we arrived there counsel for the State Adv. Maharaj
produced a sealed bag, plastic bag, broke
it and he took out a key
for the BMW. That key was then inserted into the keyhole of the
driver’s door by Oupa Khumalo.
It could not turn.
It was again used to unlock the boot of the same motor vehicle that
is the white BMW registration L[...]GP.
Still the boot could
not open by that key. From there Exhibit I the second key; the
first key was the one which was given
to the insurance company by the
accused before Court as it was said by Mr Esterhuizen. Exhibit
I was then used also to open
the same door, passenger door. In
fact I need to say that when we arrived there door, the driver’s
door was not locked.
A certain gentlemen wearing a white shirt
opened it and he then closed it. It was then that Mr Oupa
Khumalo inserted the
key in that keyhole. That key then locked
the door. He proceeded back to the boot of that motor vehicle
and locked
the boot also by the same key. Same key he also
inserted into the ignition it also turned. As a result of that
even
the steering itself turned. That was the essence of this
inspection in loco.” The state added that the there was an
inspection made of the licence disc and such licence disc had the
registration L[...]GP. The defence added that the expired
date
of the licence disc was 31 March 2009.
[13] The appellant
testified in her defence. She denied that she defrauded Mutual
& Federal insurance. She denied
that her vehicle was not
stolen. In essence, she says her claim for loss of her vehicle,
was a valid claim. The appellant
repeated her version she told
the police on 5 March 2009. In her first statement admitted in
court as Exhibit “G”
she said the following...
3.
“
On
Thursday 2008-03-05 at about 11:10 I was at my home busy taking a
bath when I finished I got dressed then grab my hand bag and
keys and
my child proceeded to the door so I could return to my work.
When I opened my front door I noticed my m/vehicle
was no longer
parked where I left. I then sent my fiancé a please call
me then he phoned I told him what happened
then he came to the house
and picked me up and brought me straight to Alberton SAPS.
4.
Then my m/vehicle is
insured to the value of hundred and ten thousand rand and the make of
the insurance company is Mutual &
Federal.
5.
I
did not give permission to anyone to take my m/vehicle and I desire
the further investigation…”
[14]
The magistrate analysed the evidence led and reached a conclusion
that the state witnesses were credible and where there were
contradictions they were not of a material nature. The
presiding magistrate found that …”
where
appellant’s evidence differed with that of the state version
hers lacked conviction and simply did not have a ring of
truth about
it
.
[15]
It is important that the court deals with the grounds of appeal as
outline above in order to determine if this court may be
justify in
interfering with the findings of fact by the court
a
quo
.
[16]
During the oral argument in this court the legal representative did
not pursue the submission that the appellant’s vehicle
might
have been stolen by the construction workers. In her evidence she
testified that the construction workers told her that they
saw the
vehicle being driven away. Yet no attempt was made to alert her to
this fact. She could not provide an explanation during
cross-examination as to why she did not call the police to the crime
scene to question the construction workers where it could
have taken
not more than five minutes before the police arrived at her house.
Her excuse was that her cell phone did not have airtime.
This version
is highly improbably for one whose evidence was that she was a CEO in
her company.
[17]
When she was asked why not dial a free call emergency number she
claimed a lack of knowledge of such a an emergency number.
She was
unable to explain why she did not ask her fiancé to call the
police to the crime scene after he arrived at home.
It could
have been more reasonably for her to get the assistance of the police
to come to the scene and interrogate the construction
workers in
trying to find out who drove away the appellant’s vehicle
without her permission. Her anxiousness of going
to the police
station with the insurance claim forms as it transpired during her
cross-examination is an indication as how fast
she want to claim
money from the insurer instead of focusing in getting the thieves of
her vehicle caught. There was no suggestion
whatsoever, during the
argument that the construction workers might have stolen her vehicle.
[18]
At the hearing of the appeal the appellant did not contend that there
is a possibility that her vehicle might have been stolen
by someone
staying in the house. The submission on this ground stands to be
rejected. This contention is improbably if one has
regard with the
proved facts and those that are common cause. There is no evidence
that there were other people inside her house
(save for construction
workers who were outside) other than the appellant who came in at
about 11:10 am and went to her bathroom
took a bath. The only
evidence from the appellant is that it was herself with her two years
old child at that time.
[19]
Mr Mzamo for the appellant contended that based on the evidence of
Miss Beukes that when the BMW sell a vehicle it is sold
with two keys
a possibility exist that the appellant might have been followed and a
thief could have used the second key to drive
away the vehicle after
she parked it outside the gate of her house. This is not supported by
evidence. The appellant at her first
reasonable opportunity when she
went to report to the police she never revealed that it could be a
possibility. In her evidence
she had a key with her and it was the
only one she had. The previous owner Mr Norman & Mr MucCullum who
sold the vehicle to
her gave her with one key. There was no
suggestion that the vehicle could have been stolen by either of them.
[20]
It was submitted on behalf of the appellant that the fact that Mr
Esterhuizen was unable to indicate as to who received the
key at the
Mutual and Federal insurance company and that there was a large
volume of claims at the time the possibility exist that
an incorrect
key was tested by Mr Esterhuizen in the vehicle that is why the said
key could not operate in the vehicle of the appellant.
This
contention is not supported by the evidence. Mr Esterhuizen
stated clearly that the key was secured with the claim documents
marked with the name of the claimant. It stands to be rejected
out of hand. The appellant when she was asked by warrant
officer Ndlela could have easily said she posted the correct key the
insurer but the insurer gave the police an incorrect key but
when she
was asked about the non-functioning of her key in the vehicle she was
unable to provide a version save to say she did
not know.
[21]
The appellant’s contention that the key exchanged many hands it
might have been swapped along the way has no merit. Upon
receipt of
the key y the insurer it was not simple thrown in the mist of other
keys it was given a reference number with the particulars
of the
appellant, that is the evidence Mr Esterhuizen. The independent
witness by the name of Mr Charles Walter Norman says that
when he
resold the vehicle in question it had one key the badge was missing.
The appellant on her own version said that when the
vehicle was
stolen its key was in her house and she delivered the key to the
insurer.
[22]
During the oral arguments Mr Mzamo further referred us to a page on
the record with Ext “F”, a policy document
submitted to
Mutual &Federal insurance company and he pointed to the tick box
of what was received by the insurer and contended
that of critical
important on the tick box where it should have been ticked that a key
was submitted it was not marked or not ticking
to indicate that the
key was received. There is no merit on this suggestion.
The appellant in her own version stated
that she sent the key to the
insurer. The document referred to it has all the particulars of the
appellant, ie the registration
no of the vehicle is there; names of
the appellant there etc.
[23]
It is the appellant’s further contention that magistrate failed
not to draw a negative inference from the State’s
failure to
call Claude Schoeman or Hussein, in order to give evidence as to how
they came in possession of the motor vehicle, and
what the
applicant’s role was. It was contended on behalf of the
appellant the state should have charged the members
of the crime
syndicate with her or they should have been called to testify.
However, he conceded that the conviction of the
appellant was not
depended on whether the crime syndicate were charged or not but the
evidence against her. The charge and
conviction of the
appellant is not theft but is fraud. The Court a quo during the
trial made a ruling on what was said in
the recording and ruled such
evidence was inadmissible. The court made a guilty finding
based on inferential reasoning which
is allowed in law.
R
v Blom
[2]
[24]
Miss De Klerk, counsel for the respondent submitted that when
considering the evidence led holistically the findings on fact
by the
magistrate cannot be faulted. The respondent argues further that the
magistrate correctly found that the contradictions
in evidence of its
witnesses were not material and a reference to the decision by the
Appeal Court,
S
v Mafaladiso and others
[3]
.
The
respondent contends that the trial court correctly rejected
appellant’s version that it was improbable that her vehicle
had
been stolen without the use of a key.
[25]
It is trite law that the state must prove its case beyond a
reasonable doubt and if the accused’s version is reasonably
possible true he/she is entitled to his/her acquittal. However, the
State does not have to prove its case beyond all doubt.
In
S
v Ntsele
[4]
it was held that … “
the
onus which rested upon the State in criminal case was to prove the
guilt of the accused beyond reasonable doubt – not
beyond all
shadow of a doubt. Our law did not require a Court had to only
upon absolute certainty, but merely upon justifiable
and reasonable
convictions- nothing more and nothing less”
See
also S Vas As
[5]
[26]
This court is not a trial court and its approach is different from
the trial court. The case of
S
v Gadibi
[6]
sets out in no uncertain terms the governing principles on appeal
against the finding of fact as follows:
“
Before
considering these submissions it would be as well to recall yet again
that there are well established principles governing
the hearing of
appeals against the finding of fact. In short in the absence of
demonstrable and material misdirection by
the trial Court, its
findings of fact are presumed to be correct and will only be
disregarded if the recorded evidence shows them
to be clearly wrong.
The reasons why this difference is shown by appellate Court to
factual findings of the trial Court are
so well known that the
restatement is unsatisfactory.”
[27] In
Makate v
Vodacom (Pty) Ltd
2016 (4) SA 121
(CC)
Jafta J said the
following:
[37] …Ordinarily
appeal courts in our law are reluctant to interfere with factual
findings made by trial courts, more particularly
if the factual
findings depended upon the credibility of the witnesses who testified
at the trial.
[40] But even in the
appeal, the deference afforded to a trial court’s
credibility findings
must not be overstated. If it emerges from the record that the
trial court misdirected itself on the
facts or that it came to a
wrong conclusion, the appellate court is duty-bound to overrule
factual findings of the trial court
so as to do justice to the case.
In Bernert this Court affirmed:
“
What
must be stressed here, is the point that has been repeatedly made.
The principle that an appellate court will not ordinarily
interfere
with a factual finding by a trial court is not an inflexible rule.
It is a recognition of the advantages that the
trial court enjoys
which the appellate court does not. These advantages flow from
observing and hearing witnesses as opposed
to reading ‘the cold
printed word’. The main advantage being the opportunity
to observe the demeanour of the
witnesses. But this rule of
practice should not be used to ‘tie the hands of appellate
courts’. It should
be used to assist, and not to hamper,
an appellate court to do justice to the case before it. Thus,
where there is a misdirection
on the facts by the trial court, the
appellate court is entitled to disregard the findings on facts and
come to its own conclusion
on the facts as they appear on the
record. Similarly, where the appellate court is convinced that
the conclusion reached
by the trial court is clearly wrong, it
reverse it.”
[7]
[28]
The sequence of events and the inference drawn by the magistrate is
well founded on the proved and common cause facts. The
magistrate
dealt extensively with the contradictions in the state’s case
and made a determination that those were not material.
He made
reference to the case law to justify his conclusion. The appellant’s
argument that the magistrate erred to accept
the evidence of Warrant
officer Ndlela and Mr Esterhuizen has no merit. The presiding
magistrate didn’t make his finding
on isolated evidence of
those witnesses only but considered the evidence holistically.
[29]
The appellant’s argument in criticising the credibility of
state witnesses who testified during the trial is without
merit. In
R
v Dhlumayo & another
[8]
held
that …”
the
appellate court is very reluctant to upset the findings of the trial
Judge. The mere fact that the trial judge has not
commented on
the demeanour of the witnesses can hardly ever place the appeal court
in as good a position as he was. Even
in drawing inferences the
trial Judge may be in a better position than the appellate court, in
that he may be able to estimate
what is probable or improbable in
relation to the particular people he has observed at the trial…”
[30]
In law fraud is defined as
unlawful
and intentional making of a misrepresentation which causes actual
prejudice or which is potentially prejudicial to another
[9]
.
The magistrate in his judgment says the following:
“
We
all observed that the locks for the doors, ignition and boot were not
tempered with, there were also no hanging and loose or
cut wires as
one would expect if the car was stolen without using the key, this
denotes that the car was not stolen, otherwise
what other explanation
can there be? It is crystal clear that when the car reached
Clavas it had the proper original key
and could not have flown or
developed legs to reach Clavas. The only logical conclusion is
that the motor vehicle was not
stolen as claimed by the accused”.
[31]
From the undisputed facts the evidence shows that the appellant
submitted a claim to the insurer on the basis that her BMW
vehicle
had been stolen and the insurer settled the payment in the amount of
R110,000.00 believing that was a genuine claim due
to be paid to the
appellant. Based on the finding by the trial court of which in
my view was correctly made that the appellant’s
vehicle was
never stolen. The Mutual & Federal Insurance Company
suffered actual prejudice in the form of monitory loss.
I find
no legal basis to upset the finding of fact by the trial court that
the state succeeded in proving guilt of the appellant
beyond a
reasonable doubt.
[32]
In the result the appellant’s appeal against conviction should
fail.
[33] The following order
is made:
[33.1]
The appeal against conviction is dismissed.
_____________________
N. SKIBI
Acting Judge of the
High Court, Gauteng Local Division, Johannesburg
I agree
________________________
TP MUDAU
Judge of the High
Court, Gauteng Local Division, Johannesburg
DATE OF HEARING: 10
OCTOBER 2019
DATE OF JUDGMENT: OCTOBER
2019
APPEARANCES:
COUNSEL FOR THE
APPELLANT: MR BL MZAMO
Mzamo
Attorneys
Suite
2,3
rd
Floor
JOHANNESBURG
Tell:
(082 260 8232
COUNSEL FOR THE
RESPONDENT: Adv. A De Klerk
Instructed by the
Director of Public Prosecutions,
South
Gauteng Division, Johannesburg
[1]
51 of 1977
[2]
1939 AD 188
at 203-203
[3]
2003 (1) SACR 583
(SCA) at 584G-585D
[4]
1998
(2) SACR 178
(SCA) at 180D
[5]
1991 (2) SACR 207
(A) at 82 D-J
[6]
1998 (1) SACR 422
(A) at 426a-b
[7]
Bernert
v
Absa Bank Ltd
[2010] ZACC 28
;
2011 (3) SA 92
(CC);
2011 (4) BCLR 329
(CC) at para
106.
[8]
1948 (2) SA 677 (A)
[9]
CR Snyman:
Criminal
law,
5
th
Edition, page 531 published by LexiNexis