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[2013] ZASCA 77
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Robinson v S (472/12) [2013] ZASCA 77 (30 May 2013)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 472/12
Not Reportable
In the matter between:
TREVOR BRIAN ROBINSON
.....................................................................
APPELLANT
and
THE STATE
..............................................................................................
RESPONDENT
Neutral citation
:
Robinson v State
(472/12)
[2013]
ZASCA 77
(30 May 2013)
Coram:
PONNAN, TSHIQI JJA, ERASMUS, PLASKET and MBHA AJJA
Heard:
22 May 2013
Delivered:
30 May 2013
Summary:
Criminal Law – whether the appellant was
correctly convicted on two counts of fraud – whether the trial
court erred
in finding that the appellant made false representations
to the complainant – whether the court a quo erred in finding
that
the appellant had submitted the alleged fraudulent invoices to
the complainant and thereafter demanded payment in respect thereof.
ORDER
On appeal from:
North Gauteng High Court (Pretoria) (Wright AJ
and Prinsloo J sitting as court of appeal ):
The appeal is upheld.
The order of the court a quo is set aside and in
its stead is substituted with the following:
‘
(a) The appeal of both appellants succeeds
and their convictions and sentences imposed pursuant thereto are set
aside.’
___________________________________________________________________
JUDGMENT
___________________________________________________________________
ERASMUS AJA (PONNAN and TSHIQI JJA and PLASKET and MBHA AJJA
concurring):
[1] The appellant, together with a non-natural juristic entity that
he allegedly represented, was charged and convicted in the
Oberholzer
Regional Court on 31 counts of fraud. Both appealed to the North
Gauteng High Court. The appeal of the juristic entity
was wholly
successful. In so far as the appellant was concerned, the appeal
succeeded in all, save two of the counts. The further
appeal solely
in respect of the convictions on those two charges is with the leave
of the high court.
[2] The complainant, Goldfields International Mining South Africa
(Pty) Ltd, operates the Driefontein mine in the district of
Oberholzer. The supply of hot water to the change rooms for workers
was inadequate and had to be rectified as a matter of urgency.
Oberholzer Timber and Hardware CC (Timber and Hardware), of which the
appellant was a member and who was a supplier and contractor
of the
complainant for many years, was requested to and did submit a
quotation for the work required. On 3 June 2009 Timber and
Hardware
submitted two quotes that formed the subject matter of the charges
herein, for cladding of piping and associated fittings
to two areas
on the site; 515 metres at the ‘living out change house’
to the value of R94 801,66 and 630 metres
at the ‘union
men’s and official change house’ to the value of
R111 524,35. Each quotation had an additional
charge of R75 000
for ‘bends’, ‘tees’, ‘reducers’
and ‘taps’. In respect of
both these quotations it
included a sentence that read ‘[o]nly an estimate can be given,
a bill will be given on completion
of application’.
[3] The said quotations were accepted by the complainant and the work
was carried out by a sub-contractor on behalf of Timber and
Hardware,
in terms of a sitework agreement. The agreement was signed on behalf
of Timber and Hardware by the appellant and on behalf
of the
complainant by a Mr Patel, the Unit Manager Procurement. The
quotations found its way into the agreement. Mr Patel conceded
during
his evidence that they could have been interpreted to mean that a
final reconciliation could be done ‘once the job
is completed’.
[4] After the work was carried out, Mario Nieuwoudt, an employee of
Timber and Hardware, presented two invoices dated 24 July 2009
to the
complainant. The amounts on the invoices were identical to those
reflected on the quotations save for the ‘bends’,
‘tees’,
‘reducers’ and ‘taps’, which were not
included. The invoices were approved by Buys
and sent to the
accounts’ person at the complainant (Ms Sale) for payment. Buys
confirmed that Nieuwoudt told him at the
time of the presentation of
the invoices that the work charged for was incomplete. Buys was
therefore aware at the time of signing
off on the invoices that there
was still outstanding work to be done. He was however satisfied that
payment could be made. It is
important to note that the invoices made
no reference to meterage. On 3 August 2009 the invoices were approved
for payment by the
complainant through Mrs Sale.
[5] On 4 September 2009 Mario Nieuwoudt and Ms Sale did a final
measurement as a result of a later invoice presented by Timber
and
Hardware that prompted an enquiry. (This invoice is however
irrelevant to the charges upon which the appellant was convicted.)
The physical measurements differed from the meterage stated in the
quotations. The evidence of Mrs Sale was that the measurement
was
done in order for the parties to agree on the meterage. That
discrepancy appears to have triggered the complaint.
[6] There is no evidence that the invoices that were submitted were
generated by the appellant, submitted by him or that he had
any role
in the preparation thereof. In fact they were submitted by Mario
Nieuwoudt after the work was done by the sub-contractor.
There was
thus no evidence that the appellant had made any misrepresentation -
much less a fraudulent one - that had induced the
complainant to act
to its prejudice. It had to follow therefore that the conviction
could not stand.
[7] In the result it is ordered:
1. The appeal is upheld.
2. The order of the court a quo is set aside and in its stead is
substituted with the following:
‘
(a) The appeal of both appellants succeeds
and their convictions and sentences imposed pursuant thereto are set
aside.’
________________________
N C ERASMUS
ACTING JUDGE OF APPEAL
APPEARANCES
APPELLANT: J L C J van Vuuren SC
Instructed by:
Jooste Slabbert & Moodie, Carletonville
Symington & De Kok, Bloemfontein
RESPONDENT: P W Coetzer
Instructed
by:
Director of Public Prosecutions, Pretoria
Director of Public Prosecutions, Bloemfontein