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[2010] ZAGPPHC 220
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Malatji v S (A966/04) [2010] ZAGPPHC 220 (9 December 2010)
NOT REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE NO: A966/04
DATE: 09/12/2010
In the matter between
JACOBUS LINUS
MALATJI
........................................................
APPELLANT
And
THE
STATE
....................................................................................
RESPONDENT
JUDGMENT
MSIMEKI, J
[1] The Appellant had
been a practising attorney of this court. He was charged and
convicted of:
1. Count 1: theft of
trust funds
2. Count 2: contravening
section 78 read with section 78 (7) and 83 (a) of Act 53 of 1979
(“the Attorneys Act”).
[2] He was sentenced to 5
years imprisonment on count 1. He was, on count 2, fined R 1.000.00
or 12 months imprisonment wholly and
conditionally suspended for a
period of 5 years.
[3] Mr Flatela
represented the Appellant while Ms Harmzen appeared on behalf of the
Respondent.
[4] An application to add
the last ground of appeal by way of an amendment, which was not
opposed, was granted.
[5] With the leave of the
court
a quo
the Appellant now appeals against the conviction
and sentence.
[6] The appeal is based
on the following grounds:
AD CONVICTION:
“
1.1 finding
that the State witnesses, especially
SUTHERLAND
and
NKUNA
were reliable witnesses:
finding that the
State proved beyond reasonable doubt that the Applicant/Appellant
had the necessary intention to steal, especially
in the light of
the evidence of
LEKGANYANE
that he instructed
the Applicant/Appellant to pay out the money;
rejecting the
Applicant/Appellant’s as well as
LEKGANYANE
’s
evidence;
placing an onus on
the Appellant/Applicant;
finding that the
Appellant/Applicant’s version is not reasonably possibly
true;
finding in regard of
(sic) count 2 that the State proved beyond reasonable doubt that
the Appellant/Applicant had the necessary
mens rea.”
AD SENTENCE:
“The Learned
Magistrate erred in:
not taking into
account, alternatively giving adequate weight to the
recommendations of
DR LABUSCHAGNE
that the
Appellant/Applicant is good human material for a community based
sentence;
by imposing a
shockingly inappropriate sentence.”
The added ground of
appeal is that:
“
the Learned
Magistrate committed an irregularity by cross examining the Appellant
and his witness at length.”
[7] The State to prove
its case, called three witnesses Mr Ronald Sutherland (“Sutherland”),
Mr Sam Nkuna (“Nkuna”)
and Mr Moeti Mpuru (“Mpuru”)
while the Appellant and Mr Makgoka Lekganyane (“Lekganyane”)
testified on
the side of the defence.
[8] The State case is
that Leswika la Motheo Developers (Pty) Ltd (“Leswika la
Motheo”) and Dikgoro Developers and Construction
CC (“Dikgoro”)
on 30 April 1999 concluded a Joint Venture Agreement (“the JV
agreement”). In terms of the
agreement Leswika la Motheo
assigned all its rights and obligations, in terms of the approved
application for Eenzam, (Project
Approval Number 1998001), and signed
between the Northern Province Housing Board and Leswika La Motheo
relating to the subsidization
of Project – linked, Housing
project for Eenzam to Dikgoro. In consideration of the cession
Dikgoro would pay R600.00 per
housing unit for the 500 units which
amounted to R 300.000.00. R 150.000.00 was payable upon the signing
of the JV agreement. R50.000.00
was payable within 4 weeks from the
date of signing of the agreement while R 100.00.00 was payable within
a period of sixty days
from the signing of the agreement or upon such
further extended period agreed to in writing by the parties. In terms
of clause
3 (d) of the JV agreement:
All monies paid by
Dikgoro to Leswika “shall be held in trust by Malatji attorneys
until all the elements of the agreement
have been fully complied with
by both parties and the Department of Housing has accepted the Joint
Venture agreement concluded
by the parties.”
Clause 9 (b) of the J V
agreement provides:
“
(b) In the
event of cancellation of this agreement the parties shall within 48
hours restore each other to the position in which
they were before as
if this agreement had not been entered into.”
The JV agreement reveals
that Mpuru represented Dikgoro when the agreement was concluded while
the Appellant represented Leswika
La Motheo. The JV agreement is Exh
“B”. Evidence further revealed that Sutherland, Nkuna and
Mpuru were the members
of Dikgoro while Lekganyane was the sole
director of Leswika La Motheo.
[9] The States case is
briefly as follows:
SUTHERLAND
His testimony is that he
was a member of Dikgoro together with Nkuna and Mpuru. Their members’
interest in the Dikgoro was
30 : 30 : 40 respectively. He confirms
the conclusion of the JV agreement and its terms and conditions. The
JV agreement would
enable Dikgoro to buy into housing project at
Eenzam, in the district of Jane Furse in Limpopo which had been
granted to Leswika
La Motheo by the Department of Housing. The
project was for the building of low cost housing. He raised a loan of
R 150.000.00
which was the amount which had to be paid to Leswika La
Motheo as deposit. The money had to be repaid. The money was paid
into
the Appellant’s trust account subject to the conditions
provided for in clause 3 (d) of the JV agreement. The R150.000.00
was
in a form of a cheque which he personally gave the Appellant who then
disappeared until he saw him at the commencement of the
criminal
proceedings in August 2005.
NKUNA
He confirms the evidence
of Sutherland regarding the joint venture and the payment of the
deposit of R150.000.00 as well as their
membership of Dikgoro. He
does not know what became of the R150.000.00 that was paid into the
Appellant’s trust account.
He never gave the Appellant
instructions to pay out the R150.000.00.
MPURU
He too, confirmed that
the JV agreement was concluded between Leswika La Motheo and Dikgoro
in terms of which Dikgoro would take
the implementation of the
housing project that had been given to Leswika La Motheo by the
Department of Housing in Limpopo for
the construction of low cost
housing in Eenzam. According to him the Department never approved the
joint venture which appeared
to have problems. He too does not know
what happened to the R150.000.00 which was paid into the Appellant’s
trust account.
He testified that Dikgoro was paid R53.000.00 for what
it did in respect of the project.
THE APPELLANT
[10] The Appellant
pleaded not guilty and made the following admissions :
“
1. I, Jacobus
Linus Malatjie make the following admissions freely and voluntary
(sic).
2. I admit that I was
admitted on the 3
rd
of July 1990 as a
qualified attorney.
3. I admit I had an
attorney’s firm under the style JL Malatjie Attorney.
4. I admit that I had
a trust account at First National Bank number 52360068715 held at
Groblersdal.
5. I admit that two
cheques with the amounts of R150 000,00 and R150 000,00 were
deposited into the said trust account on 3 May
1999 and 6 May 1999
respectively.
6. I admit that the
first cheque was drawn by P Lombaard and the second cheque was drawn
by W. J. Strydom.
7. I admit that both P
Lombaard and W J Strydom wrote and/or deposited these cheques on
behalf of Dikgoro Developers and Construction
CC.”
His evidence reveals that
Leswika La Motheo was his client. Lekganyane asked him to sign the JV
agreement representing Leswika La
Motheo. He also confirms that
Dikgoro bought into a housing project that the Department of Housing
had awarded to Leswika La Motheo.
He testified that Lekganyane
informed him that he had discussed with the members of Dikgoro and
that it had been agreed that the
R150.000.00 that had been deposited
into his trust account could be released to him and that Dikgoro
could then move onto site.
He seemed to remember that Nkuna had
confirmed the arrangement.
Regarding count 2 his
testimony was that an amount of R834.500.00 had been paid into his
trust account. The amount unfortunately
was reversed by the bank
about two months later. The bank, according to him, had lost the
cheque in respect of the amount and had
needed a replacement cheque.
He could not get the replacement cheque because the bank had not
furnished him with a letter confirming
the loss of the cheque.
LEKGANYANE
He was sole director of
Leswika La Motheo and the Appellant’s client. He authorised the
Appellant to release the amount of
R150.000.00 after he had agreed
with Dikgoro. He and Dikgoro had agreed that the balance would be
paid from the profits of the
project. He instructed the Appellant to
represent him even when the JV agreement was signed.
[11] The State had to
prove the guilt of the Appellant beyond reasonable doubt. The court
had to acquit the Appellant if his version
was reasonably possibly
true. The court did not even have to believe him. The Appellant would
have been entitled to the benefit
of doubt in the event that doubt
was created in the mind of the court. The court, however, was
entitled to reject the Appellant’s
version if it found it
improbable and false beyond doubt. (See in this regard
S v V
2000 (1) SACR 453
(SCA)
).
COMMON CAUSE FACTS
[12] These are that:
1. Leswika La Motheo had
been awarded a tender to build 500 low cost houses at Eenzam by the
Department of Housing Limpopo.
2. Leswika La Motheo and
Dikgoro having an interest in the project, had concluded the JV
agreement referred to above.
3. Dikgoro paid the
deposit of R150.000.00 which was deposited into the Appellant’s
trust account.
4. The balance of
R150.000.00 was never paid.
5. The Department of
Housing needed to approve the JV agreement.
6. Lekganyane was the
director of Leswika La Motheo and the Appellant was their legal
representative.
7. The R150.000.00 paid
into the Appellant’s trust account was to be held in trust by
the Appellant’s firm until all
the elements of the agreement
were fully complied with by both the parties and the Department of
Housing had accepted the JV agreement
concluded by the parties.
[13] The Appellant, as
alluded to above, filed an amended ground of appeal, namely that the
Learned Magistrate had committed an
irregularity by cross examining
the Appellant and his witness. It will be recalled that the Learned
Magistrate, at the end of the
defence case, had been asked to recuse
himself. After due consideration of the facts of the case and the law
by the him, the application
for recusal was dismissed or refused.
Section 35(3) of Act 108
of 1996 (“the Constitution”) provides that every accused
person such as the Appellant has
a right to a fair trial.
In
S v Rall
1982
(1) SA 828
at 831 to 832 B
when dealing with the conduct of
a trial by a judge the court said:
“
He should
therefore so conduct the trial that his open-mindedness, his
impartiality and his fairness are manifest to all those who
are
concerned in the trial and its outcome, especially the accused (See,
for example,
S v Wood
1964 (3) SA 103
(O) at 105 G; Rondalia
Versekeringskoporasie van SA Bpk v Lira
1971 (2) SA 586
(A) at 589 G;
Solomon and Another NNO v De Waal
1972 (1) SA 575
(A) at 580 H
,).
The judge should consequently refrain from questioning any witnesses
or the accused in a way that because of its frequency,
length,
timing, form, tone, contents or otherwise conveys or is likely to
convey the opposite impression (cf
Greenfield Manufacturers
(Temba) (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd
1976 (2)
SA 565
(A) at 570 E – F; Jones v National Coal Board
[1957] EWCA Civ 3
;
(1957) 2
All ER 155
(CA) at 159 F)
.”
Further, the court in the
same case added that a judge in asking questions should ensure that
he is not precluded from detachedly
or objectively appreciating and
adjudicating upon issues being fought out before him by litigants.
Failing to do that results in
him descending into the arena which
could cause his vision to be clouded by the dust of the conflict.
Calm and dispassionate observation
are paramount and need to be
retained right though the trial.
Lastly the court expected
a judge to refrain from questioning the witness or the accused in a
way that may intimidate or disconcert
him or duly influence the
quality or nature of their answers as that could affect their
demeanour or impair their credibility.
(
S v Rall (supra) at 832
C - H
)
[14] The question that
needs to be asked is whether, indeed, there were irregularities that
were committed by the Learned Magistrate,
and if so – whether
justice at the end of the day was done and seen to be done.
One needs to consider
what the Appellant complains about to determine whether indeed the
Learned Magistrate committed the irregularities
that he is said to
have committed.
1. PROOF OF PAYMENT OF
R150.000.00
The Learned Magistrate is
said to have misunderstood the Appellant when he answered the
question:
“any proof that you can furnish that you paid
whomever this R150.000.00 do you have it?”
Answer:
“I
can check my records but I think the recipient can confirm receipt of
the money.”
If indeed, the
Magistrate misunderstood the Appellant’s evidence that surely
called for clarification by the Appellant himself.
That could only be
done by way of questions asked by the court. If anything, this shows
that the court was justified when it sought
clarification. More
questions would be needed if it took long for the direct answers to
be given or proper understanding to be
achieved. This much is
apparent from a number of questions that the court asked which were
not answered directly. This applied
to both the Appellant and
Lekganyane, his witness.
The court, for an
example, at page 245 line 20 to 22 said:
“Mr Lekganyane,
I am going to put questions to you because there are a lot that I do
not understand from your evidence. And
please take your time to
recall and to answer any questions I put to you. – All right.
At page 247 lines 8 – 10 the court said :
“I have
written down your testimony. So I do not want you to repeat what I
already understand. I want you to repeat what I
do not understand.”
Going back to the
first complaint, it is clear that the question was direct and simple.
It related to the R150.000.00 but the answer
appear not to have been
confined to the clear question. The court had wanted to hear more
about the R150.000.00 and how it ended
up. I find nothing wrong with
the question.
2. THE MONEY IN THE TRUST
ACCOUNT
Lekganyane’s
testimony is that the money was deposited into the Appellant’s
trust account because he did not have a
bank account at the time. It
is said that this important clarification was unchallenged. Firstly
it is clear that the clarification
that the court needed is
acknowledged. Secondly I fail to understand how this is an
irregularity. The answer, in any event, cannot,
in the light of
clause 13 (d) of the JV agreement be correct as the JV agreement
required the money to be deposited into the trust
account and to
remain there until all the conditions had been met.
3. THE MANY QUESTIONS
THAT THE MAGISTRARE IS SAID TO HAVE ASKED THE DEFENCE WITNESS
I have already referred
to this and provided answers above. I do not agree that the witness
was intimidated and harassed. He was
asked simple and straight
forward questions which indeed, needed clarification on the aspects
for the proper determination of the
issues.
4. REGARDING THE
CONDITIONS OF THE JV AGREEMENT AS HAVING BEEN FULFILLED
I fail to understand how
this can be said to be an irregularity. It has always been the
State’s case that the important conditions
of the JV agreement
were never met. There is no doubt about this. The Appellant and his
witness are equally aware of this.
5. FAILURE OF THE
MAGISTRATE TO CONSIDER CONTRADICTIONS
It is important to
consider the contradictions in the light of the evidence in its
entirety. The question whether the contradictions
go to the root of
the case has to be properly considered. The contradictions, if any,
in my view, are not material and do not affect
the judgment of the
court
a quo.
6. THE MAGISTRATE
DESCENDING INTO THE ARENA
The Magistrate, as he
was entitled to, asked questions to have issues clarified. The
Magistrate, indeed, asked a number of questions,
perhaps more than
was desirable, as the State conceded. I, however, find nothing wrong
with the questions. I do not, agree that
the court descended into the
arena.
7. CROSS EXAMINATION OF
THE ACCUSED AND HIS WITNESS BY THE COURT
The questions that the
court asked sought clarity on issues. The Appellant and the witness
appear to have caused the court to ask
more questions when they did
not answer the questions directly. Clarity was, in deed, needed. It
has also been so conceded as I
have shown above. With these concerns
that were raised, and which I dealt with, justice, in my view, was
done and has been demonstrated
to have been done.
[15] The question that
needs to be answered is whether the guilt of the Appellant has been
proved by the state beyond reasonable
doubt. Clause 3 (d) of the JV
agreement clearly demonstrates that all monies paid by Dikgoro to
Leswika La Motheo had to be held
in trust by the Appellant’s
firm until all the elements of the agreement had been fully complied
with by both parties and
the Department of Housing had accepted the
JV agreement concluded by the parties.
[16] The Appellant
received payment of the R150.000.00 which ended up in his trust
account. This money, according to clause 3 (d)
of the JV agreement,
had to remain in trust until all the conditions were met. The money,
in the event of cancellation of the agreement
in terms of clause 9
(b) thereof, had to be refunded to Dikgoro as the parties were within
48 hours, to be restored to their positions
in which they were before
as if the agreement had not been entered into. The balance of
R150.000.00 was not paid as stipulated
by the agreement. Evidence
further has it that the Department of Housing did not accept the
joint venture agreement. The defence
further conceded that there was
a problem with the JV agreement. The chief had not been happy with
the fact that the project was
to be implemented in his area.
Lekganyane testified to that effect as well as the fact that the JV
agreement never took off and
that not a single low cost house was
built in terms of the JV agreement. The money was not refunded. The
Appellant testified that
he released the money once he was authorised
to do that by Nkuna. Cross examined on the aspect he testified that
it could have
been Nkuna who authorised him. It appeared he was no
longer sure when the cross examination proceeded because he then
testified
that he had spoken to someone at Dikgoro to confirm if the
conditions of the agreement had been met. The Appellant found it very
difficult to explain how the R150.000.00 had ended up. He, during the
trial, asked that the matter be postponed in order for him
to furnish
proof regarding how the R150.000.00 had been used. He failed to get
the proof ending up telling the court that the
practise had changed
hands and that his auditor had passed on. How the money was used was
never shown to the court. The explanation
that he furnished regarding
count 2 was not helpful either. The argument on behalf of the State
that the fact that the Appellant
utilised the deposit without the
necessary authority and contrary to the terms of the agreement
amounted to misappropriation of
trust funds which constituted theft,
in my view, the circumstances of the Appellant’s case appear to
have merit. (See in
this regard
Cape Law Society v Parker
2000
(1) SA 582
(C)
). Lekganyane’s testimony that the money
would have been in his account if he had a bank account and that he
alone could instruct
the Appellant to release the money cannot be
correct. Firstly clause 3 (d) of the JV agreement does not say so.
Secondly Dikgoro
had an equal say with regard to what was to become
of the money that was deposited into the Appellant’s trust
account in
the event that the conditions were not complied with.
[17] I do not find fault
with the manner in which the court
a quo
handled the trial
neither do I find fault with the judgment of the court
a quo
which, in my view, is a well informed judgment. The court
a
quo
duly considered and evaluated the evidence in its entirety.
The State witnesses were indeed, good witnesses. Nkuna, at the time
of giving evidence, was no longer a member of Dikgoro. The money that
was paid had been from Sutherland. Sutherland suffered immensely
as a
result of failing to repay the R150.000.00 that he had given the
Appellant. He lost almost all he had due to the action that
had been
instituted against him Mr Srtydom, by the owner of the money that he
had failed to repay. Sutherland, Nkuna and Mpuru
testified that they
had never authorised the Appellant to release the money. They all
testified about the difficulties they experienced
in tracing the
Appellant who had ceased practising and relocated. The contradictions
if any, in their evidence, in my view, is
immaterial. The court
a
quo
was justified in accepting their evidence as they were good,
honest, credible and reliable witnesses.
[18] The same thing
cannot be said about the Appellant and his witness. R150.000.00 was
received and deposited without a receipt.
Sutherland testified that
he had personally given the cheque to the Appellant. The receipt was
never given to Nkuna or Mpuru although
the Appellant had promised to
give the receipt to either of them. The Appellant had difficulty when
asked to tell the court as
to who had authorised him to release the
R150.000.00 paid into his trust account. His answers easily showed
the absence of truth
in his evidence on the aspect. The Appellant and
Lekganyane contradicted each other materially. Their versions were
tainted with
improbabilities. The Appellant dismally failed to show
how the R150.000.00 had been used. Lekganyane called the R150.000.00
his
money well aware of the fact that time never came for the money
to belong to him. The conditions were never complied with to justify
that. The court
a quo
had every reason to accept the State’s
version and to reject the Appellant’s version as improbable and
beyond doubt
false. Not much is said about count 2. The decision of
the court
a quo
on count 2, to me seems to be proper and
justified. The Appellant, in my view was correctly convicted.
SENTENCE
[19] Sentence is
pre-eminently a matter for the discretion of the sentencing court.
Appeal courts’ power to interfere with
sentences of the lower
courts is limited. Such interference is justified where such
sentences are vitiated by irregularities or
misdirections or where
the sentence is disturbingly inappropriate (See in this regard
S
v Rabie
1975 (4) SA 855
(AD)at 857 D - E
). The appeal court
will not tamper with the sentence where the court’s discretion
was properly and judicially exercised.
(See in this regard
S v
Pieters
1987 (3) SA 717
(A); S v Pillay
1977 (4) SA 531
(A); S v
Lowis
1997 (1) SACR 235
(T) and S v Rabie (supra)
).
[20] The Appellant
procured the Probation officer’s report as well as the report
of the criminologist, Dr Labuschagne. (Exh
“H”).
[21] The Appellant’s
appeal against sentence is based on the following grounds:
1. The learned
Magistrate erred in:
1.1 not taking into
account alternatively giving adequate weight to the recommendations
of Dr Labuschagne that the Appellant is
good human material for a
community based sentence;
1.2 by imposing a
shockingly inappropriate sentence.
[22] Determining an
appropriate sentence has always been very difficult. This is done and
achieved by having regard to the well
known triad which is the
personal circumstances of the offender, the seriousness of the
offence committed and the interests of
society. This, the magistrate,
in my view, did. The sentence options appear to have been duly
considered by the court
a quo.
[23] Theft has always
been seen in a very serious light. The Attorney’s Act, Act 53
of 1979 places a very serious responsibility
on the shoulders of a
practising member of the profession to always ensure that trust money
is always respected and protected.
Dikgoro and Leswika La Motheo were
the interested parties in the R150.000.00 that was in the Appellant’s
trust account. The
money remained trust money which could only be
dealt with in accordance with proper and definite instructions. The
circumstances
of this case are such that it could never with the
evidence at the court
a quo’s
disposal be said that the
Respondent, indeed, released the money as alleged by the Respondent
and Lekganyane. They could not demonstrate
this. On the other hand,
the State demonstrated that the Appellant, indeed, received the money
as alleged by the State. He too,
so admitted. The movement of trust
money is the concern of the Law Society. It is for this reason that
the Law Society expects
every Attorney to be able to account for
every cent that is in his or her trust account and to have sufficient
money therein in
to cover his or her trust creditors at all given
times. Proper records should always be kept of the trust money so
that one is
able to account whenever one is called upon to do so. The
Respondent could not demonstrate what he did with the money or to
whom
payments were made if the money was paid to people or concerns.
Such faulire to account left the court
a quo
with no other
conclusion than that the Appellant stole or misappropriated the
money. The circumstances of the Appellant’s
case reveal that
this theft is very very serious. The Appellant did not want to come
out clean and explain exactly what had become
of the money. The
Appellant’s position is different from the position of someone
who is not an attorney who, however, finds
himself stealing. A
position of trust speaks volumes. In the case of the Appellant, the
Attorney’s Act was also there to
remind the Appellant of the
seriousness of the theft even before it was committed. That the
Appellant has a family, children, status,
etc is a given. This was
well known to him before he committed the offences. Lekganyane could
not have had authority to allow him
to do what he knew he was not
supposed to do. He was dealing with trust money and the provisions of
the Attorneys Act were applicable
in his case. This much he cannot
claim not to have known. The court
a quo
properly had regard
to the recommendations of Dr Labuschagne, the probation officer’s
report as well as all the sentence
options. The court
a quo
with all of these in mind, decided that a term of imprisonment was
best suited in the case of the Appellant. No irregularities
or
misdirections were demonstrated in so far as sentence is concerned.
The discretion, in my view, was properly exercised. There
is
therefore, no reason why the sentence should be interfered with. The
appeal against sentence too ought to fail.
[24] The following order,
in the result, is made.
The
appeal against conviction and sentence is dismissed.
M. W. MSIMEKI
JUDGE OF THE HIGH
COURT
I agree.
P. EBERSOHN
ACTING JUDGE OF
THE HIGH COURT
And it is so
ordered.