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[2013] ZAECPEHC 6
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S v Jenkins, In re: S v Moosagie and Another (CC 29/2010) [2013] ZAECPEHC 6 (4 February 2013)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, PORT ELIZABETH)
In the matter
between: Case No: CC 29/2010
DESIRE JENKINS
............................................................................................
Applicant
And
THE
STATE
.................................................................................................
Respondent
In re:
THE STATE
And
AMIER
MOOSAGIE
.................................................................................
Accused
No. 1
DESIREE JENKINS
.................................................................................
Accused
No. 2
Coram:
Chetty,
J
Heard:
29 & 30
January 2013
Delivered:
4 February 2013
________________________________________________________________
JUDGMENT
________________________________________________________________
Chetty, J
[1] The accused were convicted on a
multiplicity of charges on 17 May 2012 and the matter postponed for
sentence on 13 August 2012.
Prior to the resumption of the matter,
Amod’s
attorneys, a firm based in Durban
addressed a letter to the registrar of this court which he duly
forwarded to me. Therein,
Amod’s
attorneys announced their appointment
as accused no. 2’s attorneys and provided reasons seeking an
indulgence for a postponement
of the matter. When the trial
recommenced on 13 August 2012, I acceded to the application for a
postponement and the parties were
appraised that the first two weeks
of the new term, 29 January 2013 to 8 February 2013 had been set
aside for finalisation of the
trial.
[2] On 25 January 2013, a notice of
motion and accompanying affidavits
1
by the applicant (accused no. 2) and
attorney
Amod
was
filed wherein the relief sought was articulated thus:-
“
1.
That the Honourable Mr Justice Chetty who is presiding in the above
matter recuses himself as the Presiding Judge.
2. That condonation is
granted to the Applicant in terms of Section 317 (2) of the Criminal
Procedure Act, Act 51 of 1977 for the
late filing of the relief set
out in prayer 3 infra.
3. That leave be granted
to the Applicant for a special entry to be made on the record as set
out hereunder.”
[3] At the resumption of the trial on
the morning of 29 January 2013, only accused no. 2 was in attendance.
I was informed by Mr
Price
,
who had hitherto represented him on the instructions of attorney
Ahmed
(
Ahmed
),
that his whereabouts could not be ascertained but that he had been
requested by his family to inform me that a case docket of
kidnapping
had been opened at the Port St Johns Police station. The erstwhile
accused no. 1 is a fugitive from justice and neither
he nor his
family have a voice before this court. The significance of this
communication however cannot be understated and I shall
advert to
this in due course.
[4] At the behest of Mr
de
Jager
, I authorised a
warrant for his arrest and excused his and accused no. 2’s
erstwhile legal representatives from further attendance.
The Recusal Application
[5] In her founding affidavit, accused
no. 2 adverted to various factors which she contended ineluctably
compelled the perception
that I was biased towards her and the
erstwhile accused no. 1. In particular, she relied on hearsay
statements emanating from the
erstwhile accused no. 1 wherein he
detailed an acrimonious relationship between himself and I during our
alleged high schooling
during the 1960’s. Although accused no.
2 conceded that these reports were hearsay, she nonetheless entreated
me to allow
the allegations to serve before the court on the basis
that it was in the interest of justice to have
“
the
facts
”
placed
before me. As pointed out by H.J Erasmus J in an analogous situation
in
S v Ismail and Others
2
“
. . . in an
application for recusal dealing with perceptions, this kind of
allegation places a judge in an invidious position. How
he deals with
it will no doubt differ from case to case. The judges of the
Constitutional Court issued a statement under oath dealing
with the
allegations of bias levelled against them
.”
[6] Consequently, during Mr
Potgieter’s
opening salvo on the recusal leg of
the application I immediately placed on record that the hearsay
allegations contained in accused
no. 2’s affidavit were
scurrilous, scandalous and devoid of any truth. During his argument
on the recusal however, Mr
Potgieter
submitted that notwithstanding my
disavowal of the hearsay component of accused no. 2’s
affidavit, her perception of bias
on my part against her and the
erstwhile accused no. 1 was reasonable and warranted the success of
the application.
[7] The test for apprehended bias is
trite. In
President of
the RSA v South African Rugby Football Union
3
the Constitutional Court articulated
the position thus:-
“
[45]
From all of the authorities to which we have been referred by counsel
and which we have consulted, it appears that the test
for apprehended
bias is objective and that the
onus
of
establishing it rests upon the applicant. The test for bias
established by the Supreme Court of Appeal is substantially the same
as the test adopted in Canada. For the past two decades that approach
is the one contained in a dissenting judgment by De Grandpré
J
in
Committee
for Justice and Liberty et al v National Energy Board
:
‘
.
. . the apprehension of bias must be a reasonable one, held by
reasonable and right minded persons, applying themselves to the
question and obtaining thereon the required information. . . . [The]
test is “what would an informed person, viewing the
matter
realistically and practically–and having thought the matter
through-conclude”.
In
R
v S (RD)
Cory
J, after referring to that passage, pointed out that the test
contains a two-fold objective element: the person considering
the
alleged bias must be reasonable, and the apprehension of bias itself
must also be reasonable in the circumstances of the case.
The same
consideration was mentioned by Lord Browne-Wilkinson in
Pinochet
:
‘
Decisions
in Canada, Australia and New Zealand have either refused to apply the
test in
Reg
v Gough
,
or modified it so as to make the relevant test the question whether
the events in question give rise to a reasonable apprehension
or
suspicion on the part of a fair-minded and informed member of the
public that the Judge was not impartial.’
An unfounded or
unreasonable apprehension concerning a judicial officer is not a
justifiable basis for such an application. The
apprehension of a
reasonable person must be assessed in the light of the true facts as
they emerge at the hearing of the application.
It follows that
incorrect facts which were taken into account by an applicant must be
ignored in applying the test.”
[8] The recusal application is
premised upon certain factual averments by the erstwhile accused no.
1. In my judgment on conviction
I found the entire body of his
evidence to be contrived and palpably false, and by implication, that
he was an incorrigible liar.
[9] During the course of the argument
advanced by Mr
Potgieter
,
I was informed that he had, during the mid morning tea adjournment,
been appraised that my disavowal of any personal involvement
with the
erstwhile accused no. 1 was being challenged and that he required
some time to prepare further affidavits thereanent.
The matter
accordingly stood down until Wednesday, 30 January 2013. Mr
Potgieter
advised me that he had obtained the
further affidavits, the admissibility of which he had been appraised
by Mr
de Jager
,
would be challenged. After hearing argument on the issue, I allowed
the three further affidavits to be handed in as exhibits “A”,
“B” and “C”. Exhibit “A” deposed
to by accused no. 2’s attorney,
Amod
reflects that following investigations
by him, in collaboration with family members of accused no. 1, that
at some stage accused
no. 1 and I lived approximately 150 m from each
other in the 1970’s. It is indeed so that I, together with my
three siblings
commenced living at 11 Selago Crescent, Malabar during
December 1971. Both
Amod
and
Rafiq
Moosagie
, the deponent on
exhibit “B”, by stating that accused no. 1 lived
approximately 150 metres from my parental home seem
to suggest that
by reason of proximity I must have known, or at the very least, have
seen him. The fact of the matter is that I
have no recollection of
having seen him more than forty years ago or since.
Matvad’s
assertions as contained in exhibit “C”
and his conclusion that he found it
“
inconceivable”
that I only saw the erstwhile accused
no. 1 in court at the commencement of the trial is of course his
opinion. His contention that
the erstwhile accused no. 1 and I
“
played
soccer with or against Mr Moosagie”
is
not only a complete fabrication but conspicuously absent and in fact
at variance with the hearsay allegations contained in accused
no. 2’s
affidavit that there existed an acrimonious relationship between us.
[10] The complaint that I was unfair
towards the erstwhile accused no. 1 first surfaced during his
cross-examination by Mr
de
Jager
on the morning of 9
May 2012. He was being questioned by Mr
de
Jager
on invoices that were
admittedly false. During Mr
de
Jager’s
cross-examination
I posed the following question to him: -
“
COURT
So
when you say when you discovered that the invoices were false, which
invoices are you talking about, the Midnight Star invoices
or the
Katawa invoices? --- M'Lord I ‘ve raised my concerns with hy
(
sic
)
defence team yesterday, precisely what is happening here in this
court. I am extremely upset, because I’m, I spoke to my
defence
team yesterday and they told me I must take it directly up with Your
Lordship. I’ve been asked so many questions
here M'Lord, by
yourself, and it seems as if you’re not, you’re either,
you’re not believing what I’m saying,
I observed in the
past M'Lord, when the other state witnesses were here, you hardly
asked them any questions. With me, you are
cross-examining me, the
Prosecutor is not asking me sometimes a question, and you are
cross-examining me and I have to explain
to you M'Lord. And I believe
I am not getting a fair trial here sir.”
[11] The question remained unanswered
and after an exchange between his counsel, Mr
Price
and I, the erstwhile accused no. 1
asked that I recuse myself, a request which I promptly refused.
Neither at that stage nor at
any time thereafter was there any
suggestion that I harboured any resentment or was biased in any way
against the accused. On 22
June 2011 the matter was postponed to 19
September 2011 for completion of the state case. After the adduction
of evidence of two
further witnesses called by the state, I acceded
to a request from the parties representing the accused for time to
prepare written
argument for an application for their discharge.
[12] The application for the discharge
of the accused was heard on 20 September 2011 and dismissed the
following morning. The only
mutually convenient date to resume the
hearing was 7 May 2012 and the trial postponed accordingly. After the
close of the defence
case, the parties presented their arguments on
15 May 2012. I postponed the matter to 17 May 2012 for judgment. Once
judgment had
been delivered I acceded to the legal representatives’
request for a postponement for them to present evidence in
mitigation.
The trial accordingly stood adjourned until 13 August
2012.
[13] From the inception of the trial
on 27 July 2010 until the filing of accused no. 2’s affidavit
on 25 January 2013 there
was no suggestion, save for the erstwhile
accused no. 1’s complaint that my questions to him were akin to
cross-examination,
that I was in any way biased against them. Accused
no. 2’s belated complaint of bias, fuelled by the hearsay
statements of
the erstwhile accused no. 1, almost two and a half
years later, is inconsistent with the stance adopted by them and
their legal
advisors. If, as she contends, both of them, on inception
of the trial, were aware that I would be biased against them and
openly
exhibited such bias towards them during the trial, then it is
passing strange that neither they nor their legal advisors, whom,
on
her version, they allegedly appraised of the bias towards them at the
inception of the trial, raised the issue during the past
two and a
half years.
[14] Accused no. 2’s perception
of bias is, as I shall demonstrate, ill founded, frivolous and
opportunistic. During the debate
between Mr
Potgieter
and I, I referred him to a letter
addressed to the registrar in August 2012, where a postponement of
the matter was sought. Even
at that stage there was no suggestion
whatever of any bias. The letter merely served notice that accused
no. 2
“
would
apply for a special entry based on certain procedural complaints
which she has raised”
.
The inference seems meet that the staged disappearance of the
erstwhile accused no. 1 provided the catalyst for the imputation
of
bias.
[15] The alleged rift between accused
no. 2 and the erstwhile accused no. 1, which, she suggests, arose by
reason of the alleged
lack of attention her legal representatives
displayed towards her defence, is more apparent than real.
Objectively viewed it is
a ruse to disguise the fact that this entire
exercise is orchestrated by the erstwhile accused no. 1. The sudden
rallying of support
for accused no. 2’s case by his family and
friends refutes any suggestion of any rift between them and the
inference may
readily be drawn that these applications are the
product of a collusive effort by them to thwart the finalisation of
the criminal
trial. It is in this context that the communication
relating to the kidnapping docket must be seen. It was an attempt to
disprove
any suggestion of collusion between the accused and to
perpetuate the lie that the alleged kidnapping in fact occurred. An
order
recusing myself would not only benefit accused no. 2 but more
importantly accused no. 1. The trial would have to commence
de
novo
, which would only
inure to the benefit of the accused.
[16] What accused no. 2 is in effect
seeking, is, that I accept, as a correct statement of the facts, the
hearsay allegations made
by the erstwhile accused no. 1. In an
exhaustive analysis of the evidence adduced during the trial I, found
that not only was the
entire body of his evidence untruthful, but
that he had, in effect, suborned his witnesses to falsely testify as
to the existence
of the fictitious
Shafiek
Naidoo
. Accused no. 2’s
defence, initially disclosed in the plea explanation and persisted
with throughout the trial, had, as its
central figure, the same
fictitious person. That defence I found to be contrived and, as an
accused person, she is hardly the
“
fair-minded
and informed member of the public”
postulated in
Pinochet
.
[17] Mr
Potgieter
nonetheless submitted that in as much
as the accused’s contentions remain undisputed on the papers,
these being motion proceedings,
she is entitled to the relief sought.
Accused no. 2’s entire case for recusation is predicated upon
hearsay statements emanating
from the erstwhile accused no. 1, his
family members and friends. Counsel sought to persuade me that the
interests of justice dictated
that such evidence be admitted because,
so he argued, its non admission would result in
“
tremendous
prejudice to the applicant”
.
In deciding what is in the interests of justice a court may have
regard, not only to specified matters, such as the purpose for
which
the evidence is tendered and its probative value, but to any other
factor which, in the opinion of the court, should be taken
into
account. Given the factual matrix which preceded this application,
the joint false defence of the accused, the lodging of
this
application only upon the mysterious and suspicious disappearance of
accused no. 1 and not at any time during the preceding
two and a half
years the trial was in progress, the inference can properly be drawn
that the application is brought for an ulterior
purpose,
viz
,
to frustrate the finalisation of the criminal trial. In my view,
notwithstanding the invidious position the application for recusal
places me in, I am unpersauded that the interests of justice warrants
the admission of the hearsay statements of accused no. 1
or his
cohorts. Accused no. 2’s perception, that I was biased towards
her and her erstwhile co-accused, is without foundation
and
unreasonable. The application for my recusal is the product of a
collusive effort by the accused and clearly contrived.
The Special Entry
[18] The application for the making of
a special entry is articulated in the notice of motion as: -
“
5.
The proceedings in respect of the abovementioned matter are irregular
in that the Applicant did not have a fair trial as enshrined
in
Section 35 of the Constitution of the Republic of South Africa due
to:
(a) during the
proceedings Applicant was represented by the same legal
representatives as accused one Amier Moosagie when there
was a
conflict of interest;
(b) Applicant not being
afforded the opportunity to cross examine accused one during the
proceedings.
[19] In the founding affidavit however
she broadened the scope of the complaint by alleging that the manner
in which her erstwhile
attorney,
Ahmed
,
conducted her case, was akin to no representation at all to such an
extent that her right to a fair trial was thereby negated.
The
aforegoing complaints cannot be viewed in isolation but must be
examined against the backdrop of the accused’s defence
persisted with throughout the trial. The essence of the racketeering
charge was that the accused directly or indirectly participated
in
the enterprises affairs through a pattern of racketeering activities
which were set out in detail in the individual counts.
The accused
presented a unified defence to the charges maintaining that they were
baseless and that they acted
bona
fide
but were inveigled by
one
Shafiek Naidoo
.
Their plea explanations, excluding the counts not preferred against
accused no. 2, were virtually identical. In each plea explanation,
exhibits “AA”
4
and “BB”
5
the villain was identified as
Shafiek
Naidoo
.
[20] The complaint that she never
consulted with
Ahmed
or Mrs
Guendouz
or that she was unaware that Mrs
Guendouz
was
acting on her behalf is unfounded and palpably false. At the
inception of the trial, Mrs
Guendouz
placed on record that she was acting
for both accused and added -
“
The
instructing attorney is R Sani Attorneys for accused no. 1 and then
Mr Ahmed, MSA Attorneys with regard to accused No. 2.”
The
falsity of accused no. 2’s version is further underscored by
her admission
6
that
“
I
left the matter in the hands of those representing me at the time”
.
This statement is incompatible with her earlier and later statements
that –
“
In
fact to this day I never actually realised that she was acting on my
behalf. I thought she was only acting for Moosagie.”
The aforegoing extracts from the
transcript demonstrate, quite unequivocally, the falsity of her
statements.
[21] Her complaint that no
consultations occurred between her, Mrs
Guendouz
or
Ahmed
is equally contrived. The record is
replete with instances where her case was put to various witnesses
called by the state. On the
first day of the hearing, Mr
van
der Vyver
, a SARS
investigator was called to testify
7
concerning Nozomi. During his
cross-examination by Mrs
Guendouz
,
the following was put to him
8
:
-
“
But
at this stage you cannot say whether they are related to either of
the accused or not. --- No idea.
Our clients’
instructions as reflected in the plea is that the invoices relating
to, and this is now both clients, the invoices
relating to Midnight
Star and Kataba Trading, that (intervenes) --- Are you referring to
all the matters or only this matter?
I am referring to this
specific matter before Court today. --- Okay, so it is only Midnight
Five Trading.
Yes. --- Okay.
And then Kataba Trading
there is an exhibit, bundle
E
,
E 1
.
--- Okay.
That is Kataba Trading
that is presented there. --- That invoice.
That invoice, so with
regard to these both our clients’ plea and the instructions are
that one Shafiek Naidoo presented himself
as an independent agent
freelancer who sources goods and access agents on behalf of his
companies and that he was the one to source
the goods that they
purchased and therefore he was the one who presented them with those
invoices. What would your comment be on
that or a reponse? --- If
that is the argument then I cannot comment on that.”
[22] During the cross-examination of
Mr
Wasserman
,
a SARS auditor in Port Elizabeth, Mrs
Guendouz
put the following to him
9
:
-
“
You
have already testified that according to the CK documents that Mrs
Jenkins was a 50% shareholder and the other members, the
other two
members had 25% share each. --- That is what is stated on the
document Madam.
Were you aware of the
fact that Mrs Jenkins was actually a silent partner and that the
other two were the ones carrying on the operation,
carrying on
operations? The question is just whether you are aware of it or not.
--- Nobody contacted me Madam. I cannot be aware
of any such things,
no.”
[23]
Ahmed
himself put the accused’s case
to several witnesses. When
van
der Vyver
was called as
regards Zenobia, the following was put to him
10
:-
“
But
it is also the submission of my client, accused No. 2, that that is
the signature of Mr Ahmed. Can you dispute that? --- No.
“
So
once my client handed over that cheque, accused No. 2 gave that
cheque off to Shafiek Naidoo, according to her that was in terms
of
their agreement. Do you have a problem with that? --- No, my evidence
(interrupted)
Can you say there was
something wrong with that transaction? --- No.
So according to accused
No. 2 she fulfilled her obligation in terms of a debt owed for
embroidery machines and as we go further
into the cheques, you will
see she starts naming the company that she gave the cheques to, so
with regards to the first cheque,
immaterial of where it was
deposited, as far as you are concerned you do not know who accused
No. 2 gave that cheque to? --- No,
I was not there.
Now I put it to you my
instructions are that she gave that cheque to Shafiek Naidoo as a
representative of Midnight Star for the
deposit of the equipment that
they bought. --- Okay.
Do you dispute that?
--- No, I cannot because I (interrupted)
Is that probable? ---
Probable, ja.
It can be done, it can
happen? --- Yes.
MR AHMED
Mr Van der Vyver would
you comment on the statement I am going to put to you, that all
cheques signed by accused No. 2 on behalf
of Zinobia was done so in
consensus with the other members of the CC? --- Well if you say so I
have to accept it, I do not know.
My further instructions
is that each and every cheque in your exhibit was issued in good
faith to the relevant parties, whether
it be the landlord, whether it
be Shafiek Naidoo, whether it be salaries, whether it be for
director’s fees, each cheque
that was issued by accused No. 2
was issued in good faith based on either documentation that was
before her or agreements that
she had knowledge of. What would your
comment be? --- No comment.
During the search and
seizure. Accused No. 2 has no knowledge of how those documents came
to Mr Moosagie’s premises. My instruction
from accused No. 2,
all those documents were referred to Mr Ahmed Ismail. He was the
bookkeeper, he was the one that submitted
the VAT 201, he was also
the one that forwarded the VAT 201’s to the Receiver of
Revenue. It was not done by her in
her personal
capacity. It was done on behalf of Zinobia. It was not even done on
her behalf. What would you comment on that? ---
No comment.
Accused No. 2, I am going to use her in the scenario now, accused No.
2 entered into a transaction along with the other members
of the CC
on behalf of the Zinobia to buy equipment from Midnight Trading. That
equipment is equipment that they use in their business.
They
purchased the equipment, the equipment was received. They started,
they received an invoice for that equipment, so ownership
is now
transferred, the equipment is in their possession, they receive the
equip-ment. The transaction between the parties with
regards to
payment is not in dispute here. I am buying your equipment, that is
what accused No. 2 did. When Shafiek Naidoo approached
her and told
accused No. 2 that your CC, Zinobia, if you are interested in
equipment, we have this, the following equipment. Accused
No. 2 along
with the other members of the CC, acting on behalf of the CC, entered
into agreement to buy that equipment from Shafiek
Naidoo. Shafiek
Naidoo then invoiced her for the sale.”
[24] During van
der
Vyver’s
cross-examination
concerning Tytola,
Ahmed
put the following to him
11
:
-
“
And
with regards to all these transactions in the Umtata area, although
accused no. 2 is charged with them she carries no knowledge
of them.
--- I would not know. I mean I only investigated Titola which the
member is Mr Moosagie.
But in your
investigation (indistinct) in your report also there is nothing to
suggest that accused no. 2 knew or had anything to
do with those, as
a matter of fact there is nothing even to put accused 1 and 2
together with regards to these Umtata issues. Am
I correct? --- Ja, I
think so. I think that might be one transaction where R100 000 was
paid to Zenobia at some stage.
Ja, but do you know
(intervention) --- That is all. I cannot (intervention)
In our previous
cross-examination we covered that where accused 1 bought accused 2’s
share for that amount. --- Okay.
And she confirmed that
with that letter, she said to Mr Viviers I sold my share. --- Fine.”
[25] Subsequent to Ms
Lee’s
re-examination by Mr
de
Jager
,
Ahmed
sought an indulgence to approach
accused no. 2 in the dock and, having done so, sought my leave to
question her further. The transcript
records the following
12
:
“
RE-EXAMINATION
BY MR DE JAGER
Ms Lee, when there was
an application made for an amnesty can you remember which member of
the CC made application? --- I will have
to check in my file M’Lord.
Please. --- Mrs Jenkins
made the application.
Thank you M’Lord.
MR AHMED
M’Lord, can I
just clarify that with the witness?
COURT
Yes.
FURTHER
CROSS-EXAMINATION BY MR AHMED
The application for
amnesty was made by Dot’s, am I correct? --- Yes, you are
correct.
So that means both
members would have made the application? --- Mrs Jenkins signed the
application.
Was the representative,
but both members would have made the application. Dot’s is a
CC. So both members (intervention)”
[26] When Mrs
Redcliffe
,
Dot’s bookkeeper, was called to testify, the following was put
to her
13
:
-
“
MR
AHMED
I
apologise M’Lord. But what I am trying to put to you is the
fact that in the banking records there are enough cheques which
Dot’s
paid over to Teela Design where she actually noted to you this was a
payment, whenever you queried, to Teela Design.
--- She just said it
was payment for the stock and that is it.
Thank you.”
[27] The aforegoing extracts from the
transcript of the proceedings are entirely inconsistent with the
averments made by accused
no. 2 in her affidavit, to wit: -
“
50.
Whatever steps that were taken to protect my interests from the
commencement of me being charged up until the rime of my conviction,
were steps taken advised by Attorney Ahmed and in consultation with
Moosagie. At various stages during the trial Attorney Ahmed
and
Moosagie stated that I should meet with Attorney Ahmed personally to
give instructions but such consultation had never occurred
to this
day.
51. It may sound
bizarre but throughout the proceedings and subsequent to Attorney
Ahmed representing me and asking questions apparently
on my behalf, I
at no stage fully comprehended what was happening insofar as my
defence being presented to the above Honourable
Court was concerned.”
[28] The various passages from the
record establishes the falsity of accused no. 2’s assertion
that she was not consulted
with. It is therefore astounding, to say
the least, that her counsel, in argument before me, who, by his own
admission had read
the record, could make the submission, even on the
acceptance that those were his instructions, that accused no. 2 had
not only
not consulted with her legal representatives but had not
given them any instructions. Accused no. 2’s complaint that her
right to a fair trial was rendered nugatory by reason of her legal
representatives’ conduct is not only without substance
but
frivolous.
[29] The further contention that there
was a clear conflict of interest between her and the erstwhile
accused no. 1 is contrived.
In argument before me, Mr
Potgieter
submitted that the irresistible
inference arising from the withdrawal of Mrs
Guendouz
from acting on behalf of accused no. 2
on the second day of the hearing was that a clear conflict of
interest had manifested itself.
The alleged conflict of interest,
which eventually materialised in her founding affidavit, proved to be
none other than the fictitious
Shafiek
Naidoo
. In the judgment on
conviction I found he was a creation of the erstwhile accused no. 1.
[30] In paragraph 57 of the founding
affidavit accused no. 2 stated the following:-
“
57.
I am advised now that it was imperative on Attorney Ahmed to place
facts before the Court in the event of evidence being presented
by
Moosagie contradicting what my instructions would have been or to
elicit evidence from Moosagie that would confirm my version.
At all
material times I had no knowledge of the events relative to the
charges and at no stage did I believe or suspect that any
of the
invoices that were submitted by me on behalf of the various entities
were false. These invoices were handed to me by Moosagie
who stated
he did business with one Shafiek Naidoo. The said Shafiek Naidoo was
never introduced to me and I was told by Moosagie
to say I received
the invoices from Shafiek Naidoo.”
[31] Accused no. 2’s denial that
she had no contact with
Shafiek
Naidoo
is directly
contradicted not only by what had been put to various witnesses on
her behalf but moreover by the content of her plea
explanation,
exhibit “BB”. Therein she stated the following: -
“
In
respect of counts thirty three to thirty seven
.
I admit that I was in
possession of the various tax invoices
I further admit that I
did in fact hand over these tax invoices to the South African revenue
Services (SARS) in support of VAT refunds
that I had claimed however
at no time did I believe or suspect that these were false invoices as
I had in fact made the purchases
as described upon these invoices
from one Shafiek Naidoo, and paid for these items in the amounts as
stated. The invoices upon
which I relied as described were therefore
handed to me by Shafiek Naidoo.
I did not intentionally
appropriate any monies from SARS in any unlawful manner
At no time whatsoever
did I suspect that these invoices were forged and therefore could not
have committed the offences of uttering
not did I forge any
document.”
[32] In her founding affidavit accused
no. 2 sought to explain the anomaly as follows:-
“
40.
When the hearing commenced I was requested to sign a document which I
am now advised is referred to as a plea explanation in
terms of
Section 115 of the CPA.
41. This document was
signed by me and I must have read it prior to siging it although I
can’t remember having read it. I
did not prepare it and
certainly did not give those instructions and signed it upon request
from Adv. Guendouz. I accept that paragraph
3 of the plea explanation
indicates that I understood the contents of the indictment however
charges were numerous and complex
and I had not comprehended the full
import of the charges. I was never asked to confirm what was read out
I was merely asked whether
“I heard what was read out and I
confirmed that I did hear what was read out.
42. I left the matter
in the hands of those representing me at the time
.”
[33]. The averment that she had not
been asked to confirm the content of the plea explanation was no
doubt made to corroborate her
version that she had merely signed
exhibit “BB” and was ignorant of its content. The
transcript lent credence to her
version that I had not requested her
to confirm the correctness of her plea explanation. The truth of the
matter however is that
accused no. 2 was in fact requested to confirm
the correctness of the plea explanation after Mrs
Guendouz
read it into the record and did so.
After the point had been raised by Mr
Potgieter
in argument I entertained doubt as to
the correctness of that portion of the record and requested my
secretary to enquire from the
stenographer whether the record had
been accurately transcribed. The upshot of the exercise was that the
parties were invited to
listen to the recording of the evidence. A
fatal omission on the record was noted. The following was recorded:
“
COURT
:
You may be seated.
MS GUENDOUZ READS
EXHIBIT
BB
THE
PLEA EXPLANATION AND ADMISSIONS OF ACCUSED NO. 2 INTO THE RECORD
COURT
:
Ms Jenkins have you heard what your counsel has read out to me?
ACCUSED 2
:
Yes.
COURT
:
Do you confirm the correctness of it?
ACCUSED 2
:
(Indistinct)
COURT
:
I cannot hear you.
ACCUSED 2
:
Yes.”
[34] The corrected transcript
establishes, not only the falsity of accused no. 2’s version
that she had not been asked to
confirm the correctness of her plea
explanation, but, moreover, that there was a conflict of interest
between her and the erstwhile
accused no. 1. It is evident from the
aforegoing that the alleged conflict of interest is contrived, of
recent vintage and the
product of a collusive effort between her and
the erstwhile accused no. 1 to form the basis for the application in
terms of s 317.
[35] The further complaint
encapsulated in the submissions made by Mr
Potgieter
is that my
“
loaded
question
”
unduly
influenced
Ahmed
and inhibited him from cross-examining
accused no. 1. Accused no. 2’s complaint and the argument
advanced in support thereof
is disingenuous. It is apparent from the
record and the manner in which the defence case was presented that
the accused had a unified
defence. After my ruling on the discharge
application, both Mr
Price
and
Ahmed
indicated
14
,
quite unequivocally, that only the erstwhile accused no. 1 would
testify.
[36] During his testimony, the
erstwhile accused no. 1 persisted with their unified defence. At that
stage there was no conflict
in their respective versions. The
separate representation of the two accused was merely a stratagem
employed by the defence for
reasons I need not speculate upon.
Ahmed
,
being the attorney for the erstwhile accused no. 1 could obviously
not have cross-examined him. It is self evident however, that
he had
no intention of so doing. The complaint and submissions made
hereanent are entirely fatuous.
[37] In the result the following
orders will issue: -
1. The application for my recusal
is dismissed.
2. Condonation is refused; and
3. The application for the making
of a special entry is dismissed
.
________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
On behalf of the Applicant: Adv
Potgieter SC instructed by Amod’s Attorney. Suite 900, Nedbank
Building, 30 Ingcuce Street,
Durban, Tel: (031) 307 7861/2, Ref: Mr
Amod
On behalf of the Respondent: Adv de
Jager (State Attorneys), 29 Western Road, Central, Port Elizabeth,
Tel: (041) 5857921, Ref:
Mr Myburgh
1
The
affidavit by attorney Amod was unsigned but a signed copy handed in
on Tuesday, 29 January 2013.
2
2003
(2) SACR 479
(C)
3
1999
(4) SA 147 (CC)
4
Erstwhile
accused no. 1
5
Accused
no. 2
6
Para
42 of the founding affidavit.
7
He
was called at various stages concerning various entities listed in
the indictment.
8
Record
page 57 line 23 – page 58 line 18.
9
Record
page 102 line 10-14
10
Record
page 200 line 15-17; page 205 line 9 – page line 3; page 220
line 10-22; page 221 line 1-9
11
Record
page 400 line 4-20
12
Record
page 494 line 2-16
13
Record
page 506 line 2-7
14
Record
page 719 L4-10