THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 947/2022
In the matter between:
MALALA GEOPHREY LEDWABA APPELLANT
and
MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT FIRST RESPONDENT
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS SECOND RESPONDENT
HEAD OF THE SPECIALISED CRIMES
COURT UNIT, PRETORIA THIRD RESPONDENT
Neutral citation: Ledwaba v Minister of Justice and Constitutional Development
and Others (947/2022) [2024] ZASCA 17(16 February 2024)
Coram: DAMBUZA and M AKGOKA JJA and KATHREE-SETILOANE
AJA
Heard: 23 August 2023
Delivered: This judgment was handed down electronically by circulation to
the parties’ representatives by email, published on the Supreme Court of Appeal
website, and released to SAFLII. The date and time for hand -down is deemed to be
11h00 on 16 February 2024.
2
Summary: Malicious prosecution – whether inquiry into absence of reasonable and
probable cause to precede that of malice or animus injuriandi.
Assessment of reasonable and probable cause – at the time of proceeding with the
prosecution.
3
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Van der Westhuizen J
sitting as court of first instance):
The appeal is dismissed with costs, including those of two counsel.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Kathree-Setiloane AJA (Dambuza and Makgoka JJA concurring):
[1] This is an appeal against the judgment and order of the Gauteng Division of the
High Court, Pretoria (the high court), in which it dismissed the damages claim of Mr
Malala Geophrey Ledwaba (the appellant) . The appellant’s claim ar ose from an
alleged malicious prosecution by employees of the second respondent, the National
Director of Public Prosecutions (the NDPP). In terms of s 179(1) of the Constitution,1
the NDPP is the head of prosecuting authority in South Africa, under which all Directors
of Public Prosecutions and prosecutors fall. The National Prosecuting Act 32 of 1998
is the national legislation envisaged in s 179(4) of the Constitution to ‘ensure that the
National Prosecuting Authority (the NPA) exercises its functions without fear, favour
or prejudice.’ Section 32(1)(a) of the NPA gives expression to that objective.
[2] The first respondent is the Minister of Justice and Constitution al Development
(the Minister),2 who exercises final responsibility over the NPA in terms of s 33(1) of
the Constitution . The third respondent is the head of the Speciali sed Commercial
Crimes Unit of the National Prosecuting Authority , Pretoria (head of the SCCU) . Its
mandate is to effectively investigate and prosecute complex commercial crimes
1 Constitution of the Republic of South Africa, 1996.
1 Constitution of the Republic of South Africa, 1996.
2 The first respondent is cited as Minister of Justice and Constitutional Development (the previous
designation). With effect from 24 May 2014, the Minister’s designation is Minister of Justice and
Correctional Services. However, the respondents d id not take issue with this and regard the first
respondent as properly cited.
4
emanating from the South African Police Service (SAPS) Commercial Crime Branch.
The appeal is with the leave of the high court. The appeal is opposed by only the
NDPP.
Background
[3] On 1 March 2003, the appellant was appointed as Deputy Head of the Directorate
of Special Operations ( DSO), which was colloquially known as the Scorpions. This
was a specialized unit of the NPA that was tasked with investigating and prosecuting
high-level and priority crimes, including organized crimes and corruption. It was
disbanded in January 2009. As Deputy Head of the Directorate of Special Operations,
the appellant occupied the rank of Investigating Director in the Unit.
[4] The DSO operated a secret fund known as the Confidential-Fund (DSO C-Fund).
DSO C-funds are described in the DSO Policy and Procedures document3 (Policy and
Procedures document) as funds allocated out of the DSO budget that are used ‘only
when security considerations, timeliness, opportunity, or other exceptional
circumstances, peculiar to the collection of court -directed investigative information,
prevent the use of mainstream DSO funds’. Mr Casper Jonker was the administrator
in the appellant’s office responsible for the management of the DSO C-Fund.
[5] In relation to the allocation and administration of funds, the Policy and
Procedures document states that:
‘13. DSO C-Funds expenses necessitated in the ordinary course of DSO business and as
such incurred before the DSO head of operations and the DSO C -Funds administrator have
approved a particular project may be paid out of the DSO C-funds. The C-Funds Administrator
must be informed of these expenses within two days after they were incurred. The following
approval levels are required for the payment of each such DSO C-Funds expenditure:
(a) Greater than R100 000 and all expenses to be incurred outside the RSA must be
approved operationally by the head of the DSO and fiscally, by the DSO C -Funds
administrator;
administrator;
3 Directorate of Special Operations Policy and Procedures DSO (DSO C-Funds), PP1-2001, 22
November 2004.
5
(b) between R10 000 and R100 000 must be approved operationally by the DSO head of
operations and fiscally, by the DSO C-Funds administrator;
(c) below R10 000 must be approved operationally by the relevant DSO regional/ divisional
head and fiscally, by the designated DSO C-Funds custodian.’
[6] Section G of the Policy and Procedures document sets out the request
procedures for DSO C-Funds, amongst others, as follows:
‘65. All DSO employees needing cash for DSO C- Funds expenses will submit an operationally
approved (as per section F2 supra) request for advance of DSO C -Funds form, as per
annexure 3, to his /her designated DSO C -Funds custodian. The justification for the
expenditure must meet one of the approved usages of DSO C-Funds identified in section D
supra.[4]
In addition, DSO employees requesting to be imbursed, must also bring, with their claim forms,
corresponding receipt(s), or other supporting documentation, not later than 3 working days
after the expenditure, or as soon as practicably possible.
66. Furthermore, all DSO employees requesting C-Funds for informants and/or agents must
also ensure that the designated informant’s/agent’s custodian a cknowledges such request
before they forward their request(s) with the C -Funds custodian. The Informant’s/agent’s
custodian must do such acknowledgement by attaching his/her signature on the request form
itself.
67. Where applicable, change brought back by the requestor, must be acknowledged in
writing, by both the C-Funds custodian and the requestor on the original request form itself.
68. The request for reimbursement of DSO C -Funds form is also used to claim
reimbursements for DSO C-Funds expenditure made without a prior advance of funds.
69. The DSO employee requesting the DSO C-Funds is responsible for obtaining accredited
receipts (provided by widely known and recognized entities, the existence of which can be
verified objectively, without compromising any security or other considerations that
verified objectively, without compromising any security or other considerations that
necessitated the use of DSO C-Funds in the first instance), whenever practical.
70. If an accredited receipt cannot be obtained, the DSO employee requesting the DSO
C-Funds is responsible for the attainment of an official DSO C -Funds receipt, as per
annexure 5. This DSO C-Funds receipt is to be signed by the DSO employee requesting the
DSO C-Funds, the depository/beneficiary as well as another DSO employee in the capacity of
a third party witness to the transaction.
4 Under section D policy approved usages of DSO funds are for: DSO undercover agents, rewards,
inducements, operational remuneration expenditure, occasional operational contact expenses,
evidence purchases, surveillance related expenses, interception an d monitoring expenses, and
‘emergency/miscellaneous expenses’.
6
71. If, in exceptional circumstances, the depository/beneficiary of the requested DSO
C-Funds cannot sign an official DSO C-Funds receipt or another DSO employee cannot co-
sign an official DSO receipt, the DSO employee, who requested the DSO C -Funds, must
submit a sworn statement in support of the particular expenditure. A further sworn statement
of either the beneficiary/depository of the DSO employee as a third party witness to the
transaction, must be obtained and attached to the request. These sworn statements must
explicate the reasons why a depository of another D SO employee could not have co-signed
the official DSO receipt. This would classically be the case with the unwitting DSO informant.’
(emphasis in the original text).
[7] In early 2004, the Integrity Monitoring Unit of the NPA (IMU) commenced an
investigation into allegations of misuse or abuse of the DSO C-funds by two members
of the DSO. During this investigation, the investigation team submitted a report to the
head of the IMU indicating possible misuse or abuse of the DSO C-funds by the
appellant. On 25 January 2005, the IMU invited the appellant to comment on the
allegations, which he did on 14 April 2005.
[8] On 16 May 2005, the NDPP placed the appellant on special leave pending the
finalization of the investigation and disciplinary proceedings into the allegations
against him. On 25 July 2005 a meeting of senior officials of the NDPP was held.
Amongst those in attendance were Mr Leonard McCarthy, then head of the DSO, and
Mr Chris Jordaan SC, the head of the SCCU. Mr McCarthy and others briefed Mr
Jordaan on the facts of t he appellant’s matter, and requested him (Mr Jordaan) to
consider the available evidence with a view to recommend to the NDPP on the way
forward. The appellant resigned from the NPA with effect from 31 July 2005. This was
before he could be charged with misconduct. The IMU referred the matter to the
before he could be charged with misconduct. The IMU referred the matter to the
Serious Economic Offences Unit of the South African Police Service (the S APS) to
investigate possible criminal charges against , the appellant , among others . On 23
August 2005, pursuant to the meeting of 25 Jul y 2005, Mr Jordaan forwarded a
memorandum to the NDPP in which he (Mr Jordaan) stated, among other things, that
he was of the view that there was prima facie evidence of criminality on the part of the
appellant. He therefore recommended that criminal investigations be pursued against
the appellant under the guidance of an experienced prosecutor. Ms Glynis
Breytenbach was later identified and designated by Mr Jordaan for that purpose. On
7
3 April 2006, the SAPS appointed Price Water house Coopers (PWC) to inve stigate
the allegations against the appellant. On 12 February 2007 and 17 August 2007
respectively, PWC submitted its forensic report and the addendum thereto (the PWC
report) to the SAPS and the NPA . The PWC report concluded that there was a
shortage of R294 000 between the moneys advanced to the appellant from the DSO
C-Fund and those which the appellant had reimbursed.
[9] On 13 October 2006, the appellant was arrested and charged with 23 counts of
fraud and theft (the original charges), and brought before the Special Commercial
Crimes Court, Pretoria ( the SCC Court ).5 In the first seventeen counts the State
alleged that the appellant had defrauded the NPA when he misrepresented to the
employees of the NPA that certain amounts/advances/transactions against the DSO
C-Fund were real and valid transactions that could be undertaken in terms of the
policies governing the DSO C-Fund. In the alternative it was alleged that the appellant
stole those monies. In counts 18 to 23 it was alleged that the appellant stole monies
belonging to a close corporation of which he was a member with two others. The
essence of the counts was that the appellant received payment in terms of his contract
with his co-members and misrepresented to them that no payment had been received
for the work done by the close corporation. The trial commenced in 2008 in the SCC
Court (the first trial). Ms Glynnis Breytenbach led the prosecution in the first trial. She
was assisted by Mr Willem van Zyl and Ms Sandiswa Nkula -Nyoni. This trial was
discontinued on 31 May 2010, as the presiding Regional Magistrate had recused
himself.
[10] On 20 July 2010 the appellant made detailed representations to the NDPP, then
Mr Simelane, in which he (the appellant) sought that the trial be discontinued as this
would not be in the best interests of justice. He thus requested the NDPP to withdraw
would not be in the best interests of justice. He thus requested the NDPP to withdraw
all charges against him. He further submitted that there were no reasonable prospects
of successfully prosecuting him on the charges. The appellant pointed to the strained
relationship between himself and Mr McCarthy as the reason why he was prosecuted.
He al leged that Mr McCarthy had verbally declared his intention to destroy his
professional career. The appellant also identified Ms Breytenbach as part of Mr
5 The Special Commercial Crimes Court has the same status as a Regional Court.
8
McCarthy’s plan. He accused Ms Breytenbach of suppressing documents that would
prove his innocence. In particular, he identified a ‘government issued stationery book’
in which he had ‘detailed all the projects that I approved as well as meetings I held
with people in my office.’ With regard to the specific charges, the appellant focused on
counts 1, 5, 14, 15, 18, 19-22. On the instruction of the NDPP, Ms Breytenbach, as
the lead prosecutor, was requested to furnish the NDPP with a response to the
appellant’s representations, which she did on 14 September 2010. A discussion of the
essence of appellant’s representations and the NPA’s response thereto follows later
in this judgment. Suffice to say for now that Ms Breteynbach’s response to the
appellant’s representation was furnished to the then NDPP, Mr Simelane, who, on 11
October 2010, wrote to the appellant and informed him as follows:
‘I have taken the liberty to investigate the allegations that you made by requesting a detailed
report from the office of the Director of Public Prosecutions, North Gauteng.
After having carefully considered all the documents that were supplied to me as well as your
representations, I have decided that the prosecution should continue against you.’
[11] After the rejection of the appellant’s representations, the NPA decided to start
the trial de novo on a new indictment. The prosecution was again led by Ms
Breytenbach. However, she was later suspended from her position and, subsequently,
resigned from the NPA. Mr Van Zyl then became the lead prosecutor, assisted by Ms
Nkula-Nyoni.
[12] On 27 February 2011 t he appellant again made written representations to the
NDPP; to drop the charges against him. There, he reiterated his stance that Ms
Breytenbach had an ulterior motive to charge him. Broadly, the appellant repeated
what he had stated in his previous representations. On 18 March 2011 the Deputy
National Director of Public Prosecutions, Ms Mokhatla, responded to the appellant’s
National Director of Public Prosecutions, Ms Mokhatla, responded to the appellant’s
second representations as follows:
‘I have been mandated by the National Director of Public Prosecutions (in light of your recent
request for an impartial review of the matter) to revisit the issues that you have raised in your
representations.
After a careful and diligent perusal of the matter, it became clear that the decision which was
communicated to you (in a letter dated 11 October 2010) by the National Director of Public
Prosecutions was indeed the correct one.
I therefore concur that [the] prosecution should continue against you.’
9
[13] As a result of the above letter, the trial de novo had to resume. Shortly before its
commencement, Mr Van Zyl reconsidered the charge sheet and decided, in
agreement with Ms Nkula-Nyoni, not to proceed with charges 4, 5, 9, 10, 12, 13, 15,
17, 18 and 19. They, however, added two additional charges: counts 2 and 4. On 31
October 2012, the trial de novo against the appellant commenced before a different
Regional Magistrate in the SCC Court on 15 counts of theft and fraud.
[14] On 5 April 2013, whilst the trial was pending, the appellant made further
representations to the National Director of Public Prosecutions, alleging that his
prosecution was malicious and that, based on how the prosecutors involved had acted,
he would not receive a fair trial. He further pointed out what he contended were the
weaknesses in the State’s case. He therefore requested, once more, for the
prosecution to be stopped as, according to him, there was no reasonable prospect of
a successful conviction on any of the remaining counts.
[15] On 18 July 2013 Mr Mrwebi wrote an internal memorandum to the Head of the
Regional SCCU, Johannesburg and informed him as follows:
‘I have perused the subsequent report submitted by Adv. Chabalala. The report makes it amply
clear that following investigations, there is a strong prima facie case in the matter on at least
the charges of defeating or obstructing the course of justice or attempts thereto, and Fraud.
The prosecutor must also be requested to research the possibility of pursuing a corruption
charge if possible…’
[16] At the close of the State’s case, the appellant was discharged in terms of s 174
of the Criminal Procedure Act 51 of 1977 , on counts 1, 2, 5, 6, 7, 8 and 9. On 5
February 2014, the appellant was convicted on counts 3, 4, and 11 to 14, and acquitted
on counts 10 and 15. 6 He was sentenced to 10 years ’ direct imprisonment . The
appellant appealed against his conviction and sentence to the high court, which , on
appellant appealed against his conviction and sentence to the high court, which , on
15 January 2018, upheld his appeal in respect of counts 3, 4, and 11 to 14.
6 The presiding Regional Magistrate determined that charge 15 constituted a splitting of charges in
respect of the overlapping charges 11 to 14.
10
In the high court
[17] On 10 December 2018, the appellant instituted an action for malicious
prosecution in the high court against the NDPP and the head of the SCCU. He alleged
in the particulars of claim that during 2006 the NDPP and the head of the SCCU, acting
in the course and scope of their employment, wrongfully and maliciously set the law in
motion by laying false criminal charges of fraud and theft against him . The charges
were based on the alleged grounds that he had: (a) created and authorised fictitious
projects and/or non-existent investigations; (b) misrepresented to the NPA that funds
had to be utilised for these projects; and (c) misappropriated, embezzled and/or stole
various amounts of money in cash from the DSO C-Fund.
[18] The appellant named the following prosecutors, in the offices of the NDPP and
the head of the SCCU, as responsible for wrongfully and maliciously prosecuting him
on false charges of theft and fraud: Ms Breytenbach; Mr Van Zyl; Ms Nkula-Nyoni; and
Mr Nash Ramparat. He contended, among other things, that: (a) the NDPP and/or the
head of the SCCU and/or their prosecutors had no reasonable and probable cause for
laying the criminal charges against him ; and (b) they proceeded to prosecute him,
despite the written representations which he made to the NDPP on 20 July 2010, 27
February 2011 and 5 April 2013 explaining his innocence.
[19] In their plea, t he respondents admitted that on 13 October 2006, the appellant
was prosecuted for fraud and that the prosecution was instituted at the instance of the
NDPP. They furthermore pleaded that : (a) after the IMU investigation and
recommendation that criminal charges should be brought against, amongst others, the
appellant, the case docket was opened with the SAPS ; (b) it was only after careful
consideration of the contents of the SAPS docket, together with other available
material that a decision to prosecute the appellant was taken; (c) there was reasonable
material that a decision to prosecute the appellant was taken; (c) there was reasonable
and probable cause for the prosecution of the appellant ; and (d) the decision to
prosecute him was not actuated by malice on the part of the employees of the NPA.
[20] Thus, the high court had to determine whether the appellant had established the
requisites for malicious prosecution, which are the following: (a) the defendant set the
law in motion in instigating or instituting the proceedings; (b) the defendant acted
11
without reasonable and probable cause; (c) the defendant acted with malice or animus
injuriandi; (d) the prosecution has failed; and (e) the plaintiff has suffered damages. 7
It was undisputed in the trial, which proceeded only on the issue of liability, 8 that the
first and fourth requirements were met. Accordingly, the high court had to determine
whether (a) the NDPP acted without reasonable and probable cause and , (b) with
malice or animus injuriandi. It concluded that the appellant had failed to prove the latter
requirement and dismissed the appellant’s claim. In doing so, it reasoned as follows:
‘Where the [appellant] failed to prove the requirement of maliciousness or animus injuriandi, it
would serve no purpose to consider whether [he] has proven the requirements of [lack of]
reasonable or probable cause. The [appellant] is obliged to prove all four of the requirements,
and should he fail to prove one of those , he cannot succeed in his action for malicious
prosecution.’
In this Court
Reasonable and probable Cause
[21] The appellant submitted that the assessment of a claim for malicious prosecution
must unfold sequentially in relation to the requirements of reasonable and probable
cause on the one hand, and malice or animus injuriandi, on the other. 9 He relied for
this submission on Minister of Justice v Moleko (Moleko) .10 The appellant contended
that the high court erred in first dealing with the question of whether the prosecution
acted with malice or animus injuriandi and then concluding that this requirement was
not proven. The correct approach, he argued, was to first enquire into whether the
prosecution had reasonable and probable cause to prosecute him, which the court did
not consider.
7 Beckenstrater v Rottcher and Theunnissen 1955 (1) SA 129 (A) at 135-136; Groenewald v Minister of
Justice 1973 (2) SA 480 (O).
Justice 1973 (2) SA 480 (O).
8 The high court made an order, in terms of rule 33(4) of the Uniform Rules of Court, separating the
issue of liability from the quantum of damages.
9 The appellant was represented in the appeal by two counsel. After the appellant’s counsel had argued
the matter and shortly before counsel for the NPA was to commence argument, the court was informed
by the appellant’s counsel that their mandate, as well as that of their instructing attorney, was terminated
by the appellant. Once his l egal representatives were excused from the hearing, the appellant
requested leave of the Court to argue his own case, which was granted.
10 Minister of Justice and Constitutional Development v Moleko [2008] ZASCA 43; [2008] 3 All SA 47
(SCA); 2009 (2) SACR 585 (SCA) para 8.
12
[22] Although ou r law requires that the defendant must have acted with malice or
animus injuriandi, that question will only become relevant when it is established that
the defendant instigated the prosecution without reasonable and probable cause. The
latter issue is anterior to the question of whether the defendant acted with animus
injuriandi. To succeed on this leg of the enquiry, a plaintiff must not only prove intent
to injure but also consciousness of wrongfulness. As held by this Court in Moleko,
animus injuriandi ‘means that the defendant directed his or her will to prosecuting the
plaintiff in the awareness that reasonable grounds for the prosecution were absent’.11
It follows from this that the determination of whether a defendant had reasonable and
probable cause to prosecute the plaintiff, must precede the determination into whether
it acted with animus injuriandi. The high court was, therefore, obliged to determine
whether the NPA had reasonable and probable cause for the appellant’s prosecution.
A further reason for this, is a litigant’s entitlement ‘to a decision on all issues raised,
especially where they have the option of appealing further’,12 as in this case.
[23] It is to th e issue of reasonable and probable cause that I now turn. In
Beckenstrater13 this Court held that:
‘When it is alleged that a defendant had no reasonable cause for prosecuting, I understand
this to mean that he did not have such information as would lead a reasonable man to conclude
that the plaintiff had probably be en guilty of the offence charged; if, despite his having such
information, the defendant is shown not to have believed in the plaintiff's guilt, a subjective
element comes into play and disproves the existence, for the defendant, of reasonable and
probable cause.’
There would, thus, be reasonable and probable cause for the prosecution where a
defendant is of the honest belief that the facts , available at the time of taking the
defendant is of the honest belief that the facts , available at the time of taking the
decision to prosecute the plaintiff, constituted an offence which would lead a
reasonable person to conclude that the person against whom charges are brought,
was probably guilty of such offence. This question must not be confused with whether
there is sufficient evidence upon which the accused may be convicted. That question
11 Moleko para 63 citing Neethling, JM Potgieter & PJ Visser Neethling’s Law of Personality 2 ed (2005)
p181.
12 Spilhaus Property Holdings (Pty) Limited and Others v MTN and Another [2019] ZACC 16; 2019 (6)
BCLR 772 (CC); 2019 (4) SA 406 (CC) para 44.
13 Beckenstrater at 136.
13
would ultimately be for the court, in the criminal trial, to decide at the conclusion of the
evidence.14
[24] The appellant sought in his testimony, in the malicious prosecution trial (the
trial), to justify his actions and prove his innocence. That is not the test for absence of
reasonable and probable cause in a malicious prosecution. Whether there was
reasonable and probable cause for the prosecution depends on the facts or material
which was at the disposal of the prosecutor , at the time that the prosecution was
instigated, and the careful assessment of that information. The pertinent date would
be that on which the prosecution applied for a warrant of arrest for the plaintiff. In this
case, that date is 11 October 2006. If there are representatio ns along the way, the
prosecutor is obliged to carefully assess those representations to decide whether to
proceed with the prosecution or to withdraw the charges.
[25] Mr Van Zyl was a member of the prosecution team from the date that the NPA
applied for the warrant of arrest for the appellant. He testified that they decided to
prosecute the appellant based on a careful assessment of the information in the
docket, and after consultation with the state witness es. He confirmed that the docket
contained evidence relating to each of the counts on which the appellant was charged.
This included the IMU full investigation file, the IMU investigation report and
disciplinary file which included sworn statements made by various witnesses against
the appellant, and other supporting documents. He testified that from his assessment
of the evidence in the docket, he was of the honest belief that the charges against the
appellant could be sustained as there was a prima facie case against him.15
[26] Where there are numerous discrete charges, such as we have here, each of
them must be considered separately in determining whether the prosecution had
reasonable and probable cause. 16 In line with this approach, I will consider the
reasonable and probable cause. 16 In line with this approach, I will consider the
evidence in the docket that the prosecution had at its disposal, when it decided to
prosecute the appellant on each of the charges in the indictment.
14 C Okpaluba, ‘Reasonable and Probable Cause in the Law of Malicious Prosecution: A Review of
South African and Commonwealth Decisions’ [2013] PER 8 at para 1.
15 The docket ran into more than 400 pages.
16 Minister of Safety and Security N.O. and Another v Schubach [2014] ZASCA 216 para 13.
14
Counts 1 to 17
[27] In relation to the first 17 counts in the charge sheet, it is alleged that the appellant
defrauded the NPA when he misrepresented to it, and its employees, that certain
amounts/advances/transactions against the DSO C -Fund were real and valid
transactions that could be undertaken in terms of the policies governing the DSO C-
Fund. The charge sheet alleges, in the alternative, that the appellant stole the said
amounts of money.
Count 1
[28] This concerned an alleged fictitious claim that the appellant apparently
authorized for a sting operation in the amount of R15 000 on 9 December 2003. This
charge was supported by the affidavits of Mr Jan Marthinus Henning (Deputy National
Director of Public Prosecutions); Mr Gordon Laersk (Chief Investigating Officer in the
DSO), Ms Malebo Ramagoshi (DSO C -Fund Custodian) and a Request for Advance
of DSO C -Funds form together with a memorandum compiled and signed on 9
December 2003 by the appellant . The appellant wrote in this memorandum that Mr
Henning contacted him and Mr Leonard McCarthy, the n head of the DSO, and
requested assistance in staging a sting operation . This operation involved a public
prosecutor stationed at the Benoni District Court, who purportedly sought a bribe from
an accused to withdraw the charges against him. The DSO was tasked with managing
the sting operation and arresting the prosecutor. R15 000 was requested for use as
entrapment money in the operation.
[29] R15 000 was advanced from the DSO C-Fund to the appellant for the operation.
The appellant advanced R4 000 to Mr Laersk ’s team. Mr Laersk deposed to an
affidavit, in which he stated that he requested, and received, R4 000 from the appellant
for the operation. He returned R4 000 to the DSO C-Fund because of the termination
of the operation, as the accused in question denied that the prosecutor had tried to
bribe him. After the commencement of the investigation into the allegations against
bribe him. After the commencement of the investigation into the allegations against
him, the appellant returned R10 000 to the DSO C-Fund. Although R14 000 (including
the R 4000 returned by Mr Laersk) was ultimately returned, an amount of R1 000
remained outstanding. On 6 June 2006, Ms Ramagoshi, the Custodian of the DSO C-
Fund, confirmed on affidavit that the appellant received R15 000 from the DSO C-
Fund for the sting operation ; that Mr Laersk returned R4000 ; that the appellant
15
returned R10 000 four months’ later ; and that although he undertook to repay the
shortfall of R1 000 from funds in his bank account, he never did.
[30] There was no credible explanation from the appellant as to why he requested
R15 000 from the DSO C-Fund when only R4 000 had been requested from him for
the operation. This, coupled with the supporting evidence in the docket would have
led a reasonable person to conclude that the appellant was probably guilty of the
offence of fraud. There was accordingly reasonable and probable cause for the
appellant’s prosecution on this charge.
Count 2 (in the new indictment)
[31] This charge concerned an advance of R22 000 from the DSO C-Fund to the
appellant, on 23 January 2004, for use in an entrapment operation. This charge was
supported by a Request for Advance of DSO C -Funds form from, Mr Nonpho Frans
Doubada (Mr Doubada), a Senior Advocate in the DSO, to the appellant requesting
R22 000 entrapment money. It was accompanied by a requesting memorandum that
was approved by the appellant.
[32] On 8 July 2004, Mr Doubada deposed to an affidavit in which he said that, on
23 January 2004, the appellant instructed him to draft a memorandum requesting the
amount of R22 000 from the DSO C -Fund for purposes of an entrapment operation ,
which he did. The memorandum contained facts that the appellant instructed him to
include. Mr Doubada stated, in the affidavit, that he knew nothing of the facts contained
in the requesting memorandum and that he drafted it because the appellant instructed
him to do so. In addition, Adv Doubada said:
‘Later during the day, Ledwaba contacted me and requested me to fetch R22,000.00 in cash
from Ms. Malebo Ramagoshi, the DSO Confidential Funds Custodian. He further instructed
me to hand over the R22, 000.00 to him once I had received it. I then went to Ramagoshi’s
office and sig ned for the R22,000.00. Once I had received the R22, 000.00 as instructed, I
office and sig ned for the R22,000.00. Once I had received the R22, 000.00 as instructed, I
handed it to Ledwaba personally at the office of Anthea Annandale (Office Manager, DSO).’
[33] The evidence in the docket would have led a reasonable person to conclude that
the appellant was probably guilty of the offence of fraud. There was accordingly
reasonable and probable cause for the appellant’s prosecution on this charge.
16
Count 2 (in the old indictment)
[34] This charge concerned an advance of R45 000 received on 27 February 2004
by the appellant from the DSO C-Fund. The advance was made based on a Request
for Advance of DSO C-Funds form purportedly compiled by Mr Andrew Becker, at the
request of the appellant. The request read in relevant part:
‘2. The matter involves a possible investigation of Nigerian Nationals for Drug Dealing. The
suspects will be sending a Courier to travel to the UK to collect and bring some drugs back to
South Africa…a source is being tasked to follow the Courier and establis h all contacts he
makes as well as the product and modus operandi of passing through the customs at the
airport.
3. The source must urgently be provided with an amount of R45 000.00 for the operation. The
project is not yet registered’.
However, as is apparent from an affidavit deposed to by Mr Becker, he had no
personal knowledge of the contents of the memorandum. Mr Becker confirmed in the
affidavit that he signed the memorandum because the appellant instructed him to do
so. He believed that the appellant had full knowledge of the operation and the contents
of the memorandum. He signed the memorandum because he had no reason to doubt
the truth of its contents. He was, therefore, surprised when the appellant informed him
in September 2004 ‘that things were not well’ because of the two memoranda he had
signed at his [the appellant’s] request.
[35] Mr Tongwane deposed to an affidavit on 13 June 2005 in which he denied
receiving or handling these amounts of money from the DSO C -Fund. He also said
that he had no knowledge of the memorandum dated 27 February 2004, in which Mr
Becker requested R45 000 fo r payment to a source in a drug -dealing operation.
According to Mr Tongwane, on 14 April 2005, the appellant intimated that he was in
trouble, and requested Mr Tongwane to inform the IMU investigators that he had
received R45 000 and R66 000 from the appellant. If Mr Tongwane was amenable to
received R45 000 and R66 000 from the appellant. If Mr Tongwane was amenable to
doing so, then the appellant would provide him with the necessary paperwork. Mr
Tongwane advised the appellant that he was not prepared to assist him to commit
fraud. A day or two later, Mr Tongwane was informed by Mr P rince Mokotedi of the
IMU that the appellant had informed the IMU that the amounts of R45 000 and R66
000 were requested by, and handed to, Mr Tongwane for operational purposes on 27
17
February 2004 and 23 April 2004, respectively. Mr Tongwane was shocked and angry,
and explained to Mr Mokotodi what had transpired at the meeting with the appellant
on 14 April 2005.
[36] Mr Becker was also interviewed by Mr Mokotedi. After the interview, he asked
the appellant for feedback on the investigation. He assured Mr Becker that there was
nothing to be concerned about , as he had already repaid both amounts. Mr Becker
considered the appellant’s response to be strange because both the memoranda he
had signed, indicated that the requested money was for operational expens es. The
appellant personally returned the R45 000 nine months after it was advanced.
[37] In my view, it was reasonable to conclude that if the informer that was supposedly
paid was not fictitious, there would have been no reason whatsoever for the appellant
to reimburse the DSO C-Fund. This, coupled with the sworn statements, in the docket,
of Mr Becker and Mr Tongwane, would have led a reasonable person to conclude that
the appellant was probably guilty of the offence of fraud. There was accord ingly
reasonable and probable cause for the appellant’s prosecution on this charge.
Count 3
[38] Count 3 concerned an advance of R20 000 from the DSO C-Fund to the
appellant, on 7 March 2004, for an unknown project and without this claim being
approved by the operational and fiscal authoriser as required by DSO C-Funds Policy
and Procedure document. According to the sworn statement of Mr Pieterse, n o
supporting documentation could be found for this transaction. There was also no
evidence indicating that the R20 000 advance was returned by the appellant. The
supporting affidavit of Mr Pieterse would have led a reasonable person to conclude
that the appellant was probably guilty of the offence of fraud. There was accordingly
reasonable and probable cause for the appellant’s prosecution on this charge.
Count 4 (in the new indictment)
Count 4 (in the new indictment)
[39] This count concerned the payment of R40 000 on 5 April 2004 to the appellant
from the DSO C-Fund. The advance was supported by a Request for Advance of DSO
C-Funds form, dated 5 April 2004 , for an amount of R40 000 signed by Mr Doubada
as the claimant and Ms Ramagoshi as the fiscal authoriser. It was accompanied by a
18
memorandum also signed by Mr Doubada. The memorandum did not describe the
purpose for which the funds were to be used. It merely stated that: ‘[T]he source should
be motivated by an award of s ource fee for the information already provided’. An
amount of R40 000 was suggested taking into account the value of money principle’.
This memorandum was approved by the appellant.
[40] However, on 8 July 2005, Mr Doubada deposed to an affidavit in which he stated
that he had no knowledge of the facts contained in the memorandum relating to the
DSO Head Office C-Fund ‘Operation Catchment’ because:
‘On 5 April 2004, the appellant called me to his office and handed me a requesting
memorandum that had alrea dy been typed and requested me to sign it. On page 2 of the
Annexure X, my name and rank had already been typed in, and all I was required to do was
sign my name. Ledwaba informed me that he needed the R40,000 referred to in Annexure X
for an operation. As instructed, I duly signed Annexure X and handed it to Ledwaba. Later on,
during the day, Ledwaba instructed me to fetch the R40 000 cash from the C-Fund Custodian
(Ramagoshi). I then went to Ramagoshi and signed for receipt of the R40 000 cash (see
Annexure Y). Once again, Ramagoshi did not query my receipt of this money. I then went to
Ledwaba’s office and personally handed him the R40 000. I had no knowledge of the facts
contained in Annexure X.’
[41] I am of the view that the evidence in the doc ket, especially the affidavit of Mr
Doubada, would have led a reasonable person to conclude that the appellant was
guilty of fraud. There was accordingly reasonable and probable cause to prosecute
the appellant on this charge.
Count 4 (old count 4)
[42] This charge concerned an advance of R15 000 to the appellant on 12 March
2004. It was supported by two handwritten documents. The one note reads: ‘R15 000
– Geoph Ledwaba [the appellant]. Taken by Phillip Lebopa. Total money to Geoph
– Geoph Ledwaba [the appellant]. Taken by Phillip Lebopa. Total money to Geoph
that was not signed for: R35 000 on 12/03/2004. These comments were handwritten
and signed by Ms Ramagoshi, the Custodian of the DSO C -Fund. In an affidavit
deposed to by Ms Ramagoshi, she confirmed that she made these entries after the
appellant, without the necessary documentation, requested her to give him an
advance of R15 000 from the DSO C -Fund. The appellant requested the mon ey
19
telephonically, and informed her that Mr Phillip Lebopa , Assistant Director of
Investigations in the DSO, would fetch it. This concerned Ms Ramagoshi as the
appellant’s request was not supported by the requisite documentation in terms of the
Policy and Procedure document. She raised this with Mr Jonker, the Administrator of
the DSO C-Fund, who said that ‘we cannot deny Ledwaba the money because he is
the ‘big boss’. She also approached Ms Ayanda Dlodlo, then Deputy Head of the DSO,
to intervene , on a different occasion , when the appellant requested funds without
completing the requisite documentation.
[43] Mr Lebopa also deposed to an affidavit on 6 July 2005 in which he confirmed that
the appellant had instructed him to collect a sum of money from Ms. Ramagoshi, which
he did. Ms Ramagoshi handed him an envelope which she said contained R15 000 in
cash. Since the appellant did not inform Mr Lebopa of the purpose for which the money
was to be used, Mr Lebopa refused to sign the receipt that Ms Ramagoshi requested
him to sign. As instructed by the appellant, Mr Lebopa handed the money to the
appellant at the Rosebank Mall. The claim was not supported by an operationally
approved request form as required by the Policy and Procedures document.
[44] The sworn statements in the docket in respect of this charge would have led a
reasonable person to conclude that the appellant was probably guilty of fraud. There
was accordingly reasonable and probable cause to prosecute the appellant on this
charge.
Count 5
[45] This charge concerned the payment of R150 000 , on 5 April 2004, from the C-
Fund to a certain Mr Yusuf Patel, an alleged informer in the investigation into the South
African National Association of Clients (SANAC). The Official DSO C -Fund receipt
reflects that Mr Patel acknowledged receipt of R150 000 and the funds were paid to
him for the purpose of ‘source information in the SANAC matter’ on 19 March 200 5.
him for the purpose of ‘source information in the SANAC matter’ on 19 March 200 5.
The receipt contains the signatures of the appellant and Mr Kasper Jonker, the
Administrator of the DSO C-Fund. They were apparently present when the funds were
handed over to Mr Patel. Mr Koobendran Naidoo, the Investigating Officer in the
SANAC investigation stated in an affidavit deposed to on 21 June 2005, that he used
two source s, namely Mr Jannie Van der Sandt and Mr Ebrahim Dawood in the
20
investigation. However, on 14 March 2005, Mr Naidoo received a telephone call from
the Chief Investigating Officer , Mr Marion, who informed him that the appellant had
requested Mr Naidoo to draft a memorandum motivating the payment of money to a
source in the SANAC investigation. In the belief that the requested memorandum
related to Mr Dawood , Mr Naidoo advised Mr Marion that he had difficulty with his
request, as Mr Dawood was an accomplice and accomplices were never rewarded.
[46] The next morning, Mr Marion again requested Mr Naid oo to draft the
memorandum. Mr Naidoo refused , asserting that he was unaware of any source
(informant) who qualified for a reward for information supplied in the SANAC
investigation. Mr Marion then spoke to the appellant, who called Mr Naid oo and
insisted that he draft the memorandum. When Mr Naidoo refused, the appellant told
him that he had interviewed the informant who qualified for a reward as he had
supplied information relevant to the investigation. Mr Naidoo considered this to be very
strange as, in his experience, the ‘Head of Operations does not become involved with
informants… all information, supplied by informants or potential informants , was
channeled through to the investigating officers of the matters concerned’.
[47] Mr Naidoo subsequently received a call from Mr Lawrence Mrwebi, the DSO
Durban Regional Head, who instructed him, at the behest of the appellant, to submit
a motivation for payment to a source in the SANAC investigation. Mr Naidoo refused
but offered to send Mr Mrwebi a report on the status of the SANAC investigation, which
he did. On 19 March 2004 , Mr Naidoo became aware of a memorandum , dated
16 March 2004, signed by Mr Mrwebi and Officer Ngema (on behalf of Mr Marion).
The memorandum detailed a list of successes in the SANAC investigation which were
contained in Mr Naidoo’s report. It, however, went further and recommended payment
contained in Mr Naidoo’s report. It, however, went further and recommended payment
of R150 000 to a source (informant) in the SANAC investigation, even though Mr
Naidoo’s report made no reference to any such source. This concerned Mr Naidoo, as
it appeared that his successes in the investigation were now used to motivate payment
to an unknown source (informant) , whom he had no knowledge of. He immediately
expressed this concern to Mr Mrwebi and Mr Marion in a memorandum dated 19
November 2004.
21
[48] Mr Naidoo subsequently requested Mr Mrwebi to provide him with access to the
source, but to no avail. During the appellant’s visit to the DSO Durban Office,
Mr Naidoo requested the appellant to make the source available to him. The appellant
undertook to do so, but never made good on his undertaking. The affidavits of Mr
Dawood, Mr Mrwebi, Mr Pieterse and Ms Dlodlo were also in the docket. Mr Dawood,
a source inside SANAC explain ed how it defrauded members of NEHAWU. He ,
however, categorically stated that: ‘I do not know and never heard of a person called
Yusuf Patel. During the course of involvement with SANAC I never met a person called
Yusuf Patel’.
[49] Mr Mrwebi explained, in his affidavit, that based on the information and reports
he had received, ‘I have always been aware that a source (informant) Mr Ibrahim
Dawood approached the President of NEHAWU with information and the latter
contacted the DSO in Gauteng where Mr Dawood was debriefed and the investigation
in the matter commenced ’. Notably , Mr Mrwebi d id not mention Mr Patel as an
informer. Ms Dlodlo explain ed in her affidavit why she co-signed for the payment of
R150 000 to the appellant. She apparently did so because she was advised by the
appellant that the money had been used for operational expenses , relating to
information he had received concerning the possible disruption of the 2004 national
elections by a political party. Mr Pieterse deposed to an affidavit, dated 5 June 2005,
in which he confirmed the version of Mr Naidoo. He also confirmed that the source –
Mr Patel – was not registered with the DSO . Mr Pieterse was also un able, despite a
diligent search, to locate a file in respect of Mr Patel in the DSO informant files.
[50] The appellant testified in the trial that when the prosecution decided to charge
him on this count, they failed to consider CCTV footage in which Mr Patel could be
seen entering his office. Mr Van Zyl testified that this footage was n ot part of the
seen entering his office. Mr Van Zyl testified that this footage was n ot part of the
material in the docket and was not considered in their evaluation. In the light of the
sworn statements , in the docket, relating to the non -existence of the informant, a
reasonable person would have concluded that there was sufficient evidence to sustain
a conviction on the charge. The prosecution clearly had reasonable and probable
cause to prosecute the appellant on this charge.
Count 6
22
[51] Count 6 concerned an advance of R66 000 from the DSO C -Fund, to the
appellant, on 23 April 2004. The advance was supported by a Request for Advance of
DSO C-Funds form and a memorandum from Mr Doubada to the appellant, motivating
the claim as entrapment money. However, Mr Doubada stated in an affidavit deposed
to on 8 July 2005 that he compiled the memorandum requesting the amount of R66
000 on the instructions of the appellant. The appellant called him to his office and
instructed him to sign a requesting memorandum that had already been typed. His
name and rank were also already typed in, and all he had to do was sign, which he
did. He said that he ha d no personal knowledge of the facts contained in the
memorandum, and that he did not collect the cash on behalf of the appellant. The
appellant only returned these funds approximately 8 months after they were advanced.
[52] Mr Tongwane’s affidavit, dated 13 June 2005 , which support ed charge 3 also
supports this charge. In my view, it was reasonable to conclude that the money was
refunded to the DSO C -Fund because the entrapment project was fictitious. This,
coupled with the sworn statements in the docket , of Mr Doubada and Mr Tongwane,
would have led a reasonable person to conclude that the appellant was probably guilty
of fraud. There was accordingly reasonable and pr obable cause to prosecute the
appellant on this charge.
Count 7
[53] Count 7 concerned an advance of R22 000, on 6 May 2004, to the appellant from
the DSO C-Fund. On 14 June 2005, Ms Mercier Fryer, who was at the time employed
at the DSO as the Project Management Officer, deposed to an affidavit in which she
stated that prior to this appointment she was employed in Operational Support where
she worked on undercover operations . From time to time, she received money for
these operations. She had an amount of R114 258 in her custody and under her
control, which was assigned to rent undercover accommodation. On 6 May 2004, the
control, which was assigned to rent undercover accommodation. On 6 May 2004, the
appellant instructed her to provide him with R22 000 of the funds in her custody , for
use in an undercover entrapment operation. She obliged and handed over the funds
to the appellant. She asked him to sign an official DSO C -Fund receipt, dated 6 May
2004, which he did. She indicated on the receipt that the appellant had received the
funds for purposes of ‘evidence /purchase/trap’. The appellant informed her that he
would hand her the authorising documentation the following day, but never did so.
23
[54] The appellant returned the money on 27 August 2004. No supporting
documentation could be located for this transaction. Again, it was reasonable to infer
that if this transaction was not fictitious, there would have been no reason for the
appellant to reimburse the DSO C-Fund. This , coupled with the supporting sworn
statements in the docket would have led a reasonable person to conclude that the
appellant was probably guilty of fraud. There was , accordingly, reasonable, and
probable cause to prosecute the appellant on this charge.
Count 8
[55] Count 8 concerned an advance of R5 000 from the DSO C-Fund, to the appellant,
on 28 May 2004 . This advance was not supported by an approved Request for
Advance of DSO C-Funds form as required by the Policy and Procedures document.
The appellant returned the funds approximately 9 nine months after they were
advanced. As in the case of the other charges, I am of the view that it was reasonable
to deduce that if this transaction was not fictitious, there would have been no reason
to reimburse the DSO C-Fund nine months later. The sworn statements in the docket
in relation to this charge would have led a reasonable person to conclude that the
appellant was probably guilty of fraud. There was accordingly reasonable and
probable cause to prosecute the appellant on this charge.
Counts 9 and 12
[56] These counts concerned advances of R35 000 to the appellant on 18 June 2004,
and R25 000 on 13 July 2004 (total of R60 000) . The advances were not supported
by approved Request for Advance of DSO C -Funds forms. In a memorandum dated
28 June 2004, supposedly from Mr Becker to the appellant, Mr Becker motivated a
claim for R60 000 to be used by a source for payment of an airflight to the United
Kingdom (UK) and accommodation and subsistence costs whilst there. The appellant
approved the memorandum. However, Mr Becker deposed to an affidavit in which he
approved the memorandum. However, Mr Becker deposed to an affidavit in which he
said that he did not compile the memorandum requesting R60 000. The appellant only
returned these monies eight months after they were advanced to him. According to
the affidavit of Mr Pieterse, the facts mentioned in the memorandum were not
consistent with the facts of an existing investigation , relating to the Department of
Home Affairs, namely Project Zealot.
24
[57] On this basis, a reasonable prosecutor would have concluded that there was no
reason for the appellant to reimburse the DSO C-Fund other than that the transaction
was fictitious. The sworn statements in the docket in relation to this charge would have
led a reasonable person to conclude that the appellant was probably guilty of fraud.
There was accordingly reasonable and probable cause to prosecute the appellant on
this charge.
Counts 10 and 11
[58] Counts 10 and 11 concerned two advances of R24 000 and R15 455 to the
appellant on 6 July 2004 and 12 July 2004 , respectively. In relation to both these
advances, the appellant issued memoranda indicating that he had authorized the use
of these amounts for operational purposes and that the money was handed over to
the ‘team’. However, the advances made were not supp orted by approved Request
for Advance of DSO C-Funds forms. The appellant only returned both these amounts
five months later. It was reasonable to conclude that the appellant reimbursed the DSO
C-Fund because the purported transaction was fictitious. The sworn statements in the
docket in respect of th ese charges would have led a reasonable person to conclude
that the appellant was probably guilty of fraud. There was accordingly reasonable and
probable cause to prosecute the appellant on this charge.
Count 13
[59] Count 13 concerned an advance of R 13 000, from the DSO C -Fund to the
appellant, on 20 July 2004. The advance was not supported by an approved Request
for Advance of DSO C-Funds form. According to the affidavit of Mr Doubada dated 8
July 2005, he received R13 000 from Ms Ramagoshi with an instruction from the
appellant that it be handed to him at the Menlyn Park Shopping Centre, in Pretoria. Mr
Doubada tried to contact the appellant but failed to do so. Later that evening, the
appellant went to Mr Doukada’s home and collected the money from him. The
appellant only returned the advance of R13 000 nine months after it was advanced to
appellant only returned the advance of R13 000 nine months after it was advanced to
him.
[60] In my view, it was reasonable to conclude that the appellant reimbursed the DSO
C-Fund because there never was a legitimate transaction underlying the advance of
25
the R13 000. The sworn statements in the docket in relation to this charge would have
led a reasonable person to conclude that the appellant was probably guilty of fraud.
There was accordingly reasonable and probable cause to prosecute the appellant on
this charge.
Count 14
[61] Count 14 concerned a payment of R50 000, on 23 July 2004, to a source that
was never registered as an informer. Payment was authorized based on a
memorandum, dated 23 July 2004, prepared by Mr Doubada. However, Mr Doubada
stated, in the affidavit deposed to on 8 July 2005, that the appellant instructed him to
sign a requesting memorandum, for an advance of money for an operation at the OR
Tambo International Airport. The memorandum had already been typed and included
Mr Doubada’s name. Mr Doubada signed the memorandum as duly instructed. He,
however, said that he had no personal knowledge of the facts in the memorandum ,
and did not collect the money on behalf of the appellant. The appellant approved the
memorandum and payment of R50 000 to the informer, whom he claimed to have
spoken to on several issues. No official receipt was found in which the source
acknowledged receipt of the money.
[62] The evidence in the docket in respect of this charge would have led a reasonable
person to conclude that the appellant was probably guilty of fraud. There was
accordingly reasonable and probable cause to prosecute the appellant on this charge.
Count 15
[63] Count 15 concerned an advance of R30 000 to the appellant . This advance to
the appellant was made without any Request for Advance of DSO C-Funds form. The
request was made by Mr Tongwane for R20 000. However, the appellant, in his own
handwriting, increased the amount to R30 000. No other documents relat ing to this
transaction could be traced. The money was refunded on 6 October 2004, but could
not be linked to a specific advance.
[64] Once again it was reasonable to conclude that there was no legitimate basis for
[64] Once again it was reasonable to conclude that there was no legitimate basis for
this transaction. And the way it was conducted did not accord with the applicable Policy
and Procedures document. This, coupled with the evidence in the docket in relation to
26
this charge, would have led a reasonable person to conclude that the appellant was
probably guilty of fraud. There was accordingly reasonable and probable cause to
prosecute the appellant on this charge.
Count 16
[65] This count concerned an advance of R7 000 from the DSO C -Fund, to the
appellant, on 23 October 2004. Payment was made to the appellant based on an
unsigned and unauthorized Request for Advance of DSO C -Funds form from the
appellant as claimant. No additional documents could be located. The appellant
returned this amount in February 2005. For reasons similar to the previous charge, the
evidence in the docket in re lation to this charge would have led a reasonable person
to conclude that the appellan t was probably guilty of fraud. There was accordingly
reasonable and probable cause to prosecute the appellant on this charge.
Count 17
[66] Count 17 concerned an advance of R22 000 , from the DSO C -fund to the
appellant, on 25 January 2005. The appellant received an advance of R22 000, on 6
May 2004, for the purposes of an ‘evidence purchase/ trap’ without providing Ms Fry
with the necessary supporting documentation . In the affidavit deposed to by Ms Fry,
the appellant returned this advance on 27 August 2004 (See count 7 above). However,
according to a handwritten note (annexure 31 to the PWC Report), dated 25 January
2005, the R22 000 was returned by the appellant on 18 January 2005 and withdrawn
again on 25 January 2005. The handwritten note was signed by Mr Jonker, the
administrator of the DSO C-Fund. The advance of R22 000 made on 25 January 2005
was not supported by a Request for Advance of DSO C-Funds form and the annexures
as required by the Policy and Procedures document.
[67] According to the affidavit of Ms Joline Lamprecht, she handed the R22 000 to
the appellant on his mere instruction, and without receiving any proper authorised
documents. The evidence in the docket in respect of this charge would have led a
documents. The evidence in the docket in respect of this charge would have led a
reasonable person to conclude that the appellant was probably guilty of fraud. There
was accordingly reasonable and probable cause to prosecute the appellant on this
charge.
27
Counts 18 and 19 to 23
[68] In respect of count 18 of the charge sheet (Count 10 in the new indictment), it
was alleged that the appellant committed fraud in failing to inform the NPA/DSO that
he was doing remunerated work (not authorised by the NPA) whilst he was still
employed by the NPA. In counts 19 to 23 of the charge sheet (counts 11 to 15 in the
new indictment), it was alleged that the appellant, on four separate occasions , stole
money that belonged to Ndumiso Trust CC trading as Kagiso Consulting (Kagiso). It
was also alleged that the appellant defrauded members of Kagiso when he
represented that a certain project had been terminated, and that no money was
received as payment, whereas this was not true. Count 18 was supported by a letter
of resignation from the appellant, as well as the affidavit of Mr Lloyd Charles Lephoko
deposed to on 9 October 2006. Counts 19-23 are also supported by the affidavit of Mr
Lephoko and the annexures thereto.
[69] The events that led up to the appellant becoming involved in the business o f
Kagiso are explained by Mr Lephoko in his affidavit. He states that he and Ms Rose
Nonyane decided to conduct an insolvency practice and registered Ndumiso Trust as
a close corporation for that purpose. Ndumiso Trust CC was registered on 27 January
2004. In August/September 2004, they met with the appellant, who was his brother -
in-law, to explore the possibility of getting work for their insolvency practice from the
Asset Forfeiture Unit (AFU). During this time, the appe llant expressed an interest in
becoming involved in their insolvency practice, and they , in principle, agreed that the
appellant would become a member of Ndumiso Trust CC.
[70] According to Mr Lephoko, the appellant approached him again towards the end
of November 2004 and requested him to register a close corporation for him. The
appellant informed Mr Lephoko that a close corporation was needed as there was a
appellant informed Mr Lephoko that a close corporation was needed as there was a
possibility of obtaining work from the Gauteng Department of Safety and Liaison (the
Department). The appellant proposed that the close corporation be named Kagiso
Consulting. Since it would have taken some time to register a close corporation, Mr
Lephoko suggested that they do the work through Ndumiso Trust CC, which was
already registered, and that Kagiso Consulting be its trading name. The appellant
agreed and suggested that Ms Nonyane and Mr Lephoko should be involved. Ms
28
Nonyane agreed to the arrangement, and they registered the appellant as a member
of Ndumiso Trust CC. They secured office space to conduct the business.
[71] The appellant provided Mr Lephoko with some background information about the
possible work and requested him to prepare a quotation and a company profile for the
Department. They agreed to quote an hourly fee of R900 per ho ur for the appellant,
R800 per hour for Mr Lephoko, and R800 per hour for Ms Nonyane. They also agreed
that the appellant would be available all the time to do the work of the business , and
that Mr Lephoko and Ms Nonyane would assist on an alternate basis. Mr Lephoko
specifically asked the appellant if the work for the Department, which they envisaged
would take about 30 working days, would not interfere with his work at the DSO. The
appellant assured him that it would not be a problem as he had obtained permission
to do the work.
[72] As requested, Mr Lephoko drafted a quotation and a company profile which he
gave to the appellant. A few days later the appellant informed Mr Lephoko that Kagiso
was given work by the Department. They then started their research for the project,
which consisted of three different phases. During December 2004, Mr Lephoko visited
the offices of the Department and met Ms Dlodlo, then Head of the Department.
[73] In early January 2005, Mr Lephoko and the appellant met with Ms Dlodlo and a
certain Mr Mpanza and they reported on the progress of the project. Towards the end
of the first phase of the project, Mr Lephoko got the impression that the appellant was
not keen on having him and Ms Nonyane involved and wanted to do all the work
himself. Despite the problems they continued to work together. On the due date for
the report on the first phase, Mr Lephoko met with the appellant who informed him that
the report was almost complete, and that he would submit it the next morning, which
he did. They then began working on phase two but shortly thereafter, the appellant
he did. They then began working on phase two but shortly thereafter, the appellant
informed Mr Lephoko that the Dep artment had taken the project away from Kagiso
and given it to another entity . Mr Lephoko stopped and did no further work. He,
however, asked the appellant, on numerous occasions, to be paid for the work done
in the first phase. The appellant informed Mr Lephoko that he could not be paid ,
because the Department had not paid Kagiso for the work done.
29
[74] Mr Lephoko only discovered, after receiving copies of invoices and other relevant
documents from the SAPS, that Kagiso had received payment for the work done, and
that it was paid into the private bank account of the appellant. The documentation
revealed that the appellant had submitted invoices made out in the name of Kagiso to
the Department on the dates and for the amounts as follows: 10 January 2005 for
R193 422.20; 1 February 2005 for R165 375.98; 11 February 2005 for R110 250.65;
and 16 February 2005 for R27 079.11 . These invoices were attached to the affidavit
of Mr Lephoko and were, therefore, part of the docket.
[75] The appellant testified that he resigned from the NPA in January 2005 and was,
as such, not employed by the NPA when he was involved in the business of Kagiso
during the period in question. Therefore, he said that he did not need permission from
the NDPP to carry out work outside the NPA. This was put to Mr Van Zyl in cross -
examination. He responded by making it clear that this information was not before
them when they took the decision to prosecute the appellant on charge 18. He said
that what they had before them were documents which indicated that the appellant
had resigned with effect from August 2005. He also said that the appellant’s letter of
resignation, dated 15 June 2005 , which was shown to him in court was not in the
docket. Nor was the appellant’s earlier application to the NDPP (a ttachments to that
letter) to be released from service to pursue a career , as an advocate , at either the
Johannesburg Bar or the Pretoria Bar. The appellant’s resignation, in terms of the
letter of 15 June 2005, was with effect from 31 July 2005.
[76] Although this letter of resignation refers to an earlier application to be released
from office during January 2005, it is clear from the letter itself that the appellant was
persuaded by the NDPP, at the time, Mr Vusi Pikoli to reconsider his request which he
persuaded by the NDPP, at the time, Mr Vusi Pikoli to reconsider his request which he
did. As stated by him, in the letter, the appellant subsequently withdrew his request to
be released from office and ‘continued [his] responsibilities as Investigating Director in
the DSO’.17
[77] Mr Lephoko’s affidavit and the annexures thereto which he received from the
SAPS, coupled with the appellant’s resignation from the NPA with effect from 31 July
17 Resignation letter from the appellant to the NDPP dated 15 June 2005.
30
2005, would have led a reasonable person to conclude that the appellant: (a) probably
committed fraud in failing to inform the N DPP that he was doing remunerated work
(not authorised by the NPA) whilst he was still employed by the NPA, and (b) probably
stole money that belonged to Kagiso on four separate occasions ; and (c) probably
committed fraud against the members of Kagiso when he represented that the project
was terminated and that no payment was received for the work done.
Withdrawal of Charges
[78] The prosecution took the decision to start the trial de novo and to proceed on a
new indictment. The PWC report was only completed on 27 February 2007. It was,
therefore, not part of the docket when the decision to prosecute the appellant, on the
original charges, was taken on 11 October 2006. The PWC Report was, however, in
the docket when the prosecution decide d to start the trial de novo on the new
indictment.
[79] Mr Moepi compiled the PWC report. It detailed the findings of PWC in respect of
the DSO C -Fund transactions and other related transaction s in respect of, amongst
others, the appellant. The main findings were that:
(a) A review of the appellant ’s personal bank account reveal ed that some of the
refunds which the appellant had made to the DSO C-Fund, coincided with his receipt
of funds from the Department;
(b) On 24 February 2005, a total of R82 500 in cash withdrawals was made from the
appellant’s bank account. On the same day, the appellant refunded an amount of R79
000 to the DSO C-Fund;
(c) A net amount of R234 000 advanced to the appellant from the DSO C -Fund was
still outstanding;
(d) Payments amounting to R496,127.94, from the Department to Kagiso, were
deposited into the appellant’s personal bank account on 28 January 2005, 23 February
2005, 16 March 2005 and 25 March 2005, respectively.
[80] Mr Moepi testified on some of these findings in the first trial. However, before he
[80] Mr Moepi testified on some of these findings in the first trial. However, before he
could complete his evidence, the trial was terminated because of the recusal of the
Regional Magistrate.
31
[81] The appellant contended in the appeal that the withdrawal of 10 of the 23 charges
by the prosecution , at the commencement of the trial de novo, demonstrated that it
had no reasonable and probable cause to prosecute him on those charges. I disagree.
In this regard, Mr Van Zyl testified that on the day before the trial de novo was to
commence, he decided in agreement with Ms Nkuna-Nyoni to withdraw counts 4, 5,
9, 10, 12, 13, 15, 17, 18 and 19 against the appellant . He testified that although Mr
Moepi had testified in support of some of these charges in the first trial, it was going
to be too expensive, due to his high fee rate, to recall him to testify in the trial de novo.
Mr Van Zyl said that he was initially of the view that these charges could be proved, in
the trial de novo , by leading the evidence of other witnesses on the documents
referenced in the PWC report. However, on reconsideration , he reali sed that Mr
Moepi’s testimony was essential because in respect of certain transgressions he relied
on a single document for his findings, but in respect of others he relied on several
documents. Mr Van Zyl furthermore testified that after listening to Mr Moepi’s
testimony in the first trial and understanding his methodology, he believed that if he
omitted to call Mr Moepi to testify in the trial de novo, he would struggle to prove some
charges. However, to avoid the costs of recalling Mr Moepi to testify in the trial de
novo, he considered it prudent to withdraw those charges.
[82] Mr Van Zyl’s explanation for withdrawing the charges was not implausible,
because there was no evidence to gainsay it. In the circumstances, no adverse
inference can be drawn from the prosecution’s decision to withdraw these charges.
Neither does it matter that the appellant was discharged in terms of s 174 of the CPA,
in respect of counts 1, 2, 5, 6, 7, 8 and 9. What matters is that when the prosecution
in respect of counts 1, 2, 5, 6, 7, 8 and 9. What matters is that when the prosecution
authority originally decided to prosecute the appellant on these charges, it was of the
honest belief, based on the contents of the docket , that there was reasonable and
probable cause for his prosecution.
[83] Prior to the commencement of the trial de novo, the appellant made two sets of
representations to the NDPP to have the charges against him withdrawn based on his
innocence. These representations were rejected by the respective NDPP s. The
appellant, however, did not give a version in his warning statement in the first trial. Nor
did he give a version or state his defense in his plea explanation, as he exercised his
right to remain silent. This meant that the only material available to the NPA to decide
32
whether to continue with the prosecution was the docket itself. Mr Van Zyl testified ,
under cross -examination, that he did consider the representations of the appellant
when he decided, in consultation with Ms Nkuna-Nyoni, to withdraw the ten charges.
He, however, testified that ultimately, his decision to withdraw these charges and add
two additional ones , was based on his own assessment of the information in the
docket, which included the PWC report. According to Mr Van Zyl, charges 2 and 4
were added to the new indictment because they were erroneously omitted from the
original charge sheet . These charges were supported by the sworn statements and
the PWC report which were in the docket.
Malice or animus injuriandi
[84] The overall premise of the appellant’s case in so far as this requirement is
concerned, was that there was a conspiracy instigated by his direct superior, Mr
McCarthy, to destroy his career . The appellant testified in this regard that he had an
acrimonious relationship with Mr McCarthy and Ms Breytenbach from the inception of
his employment at the NPA. He said that once Mr McCarthy discovered that certain
DSO C-Fund transactions that the appellant had authori sed were not fully compliant
with the Policy and Procedures document, he used that as an opportunity to make his
stay at the NPA very unpleasant. The appellant furthermore stated that their
relationship deteriorated even further when he told Mr McCarthy that, in terms of the
Policy and Procedures document , accountability for the DSO C-Fund lay with him.
According to the appellant, McCarthy became angry and threatened that he w ould
destroy the appellant’s career and would use the services of Ms Breytenbach in the
SCCU to do so.
[85] Neither Mr McCarthy nor Ms Breytenbach testified at the trial. The appellant
contended that given the failure of the NPA to call them to testify, his evidence against
them remains unchallenged and conclusively demonstrates that the NPA acted with
them remains unchallenged and conclusively demonstrates that the NPA acted with
malice and animus injuriandi in deciding to prosecute him. I disagree. Although the
appellant may have had an acrimonious relationship with Mr McCarthy and Ms
Breytenbach, I fail to see how this could have led to a conspiracy by at least four
officers of the Court to destroy his career. The appellant named four individuals in his
particulars of claim but did not name Mr McCarthy. Yet in his testimony, in the trial, Mr
McCarthy was the main perpetrator. Mr McCarthy had, however, relocated to
33
Washington DC in 2007/8 and could not have driven the prosecution. The prosecution
proceeded even after he had left the country.
[86] It is clear from the factual background that the initial decision to prosecute the
appellant was a joint one. The meeting of 25 July 2005, where the decision was taken,
was attended by several senior officials of the NDPP, including Mr McCarthy and
Jordaan. Moreover, on the unchallenged evidence, the decision to institute criminal
proceedings against the appellant was made by Mr Chris Jordaan (Mr Jordaan), the
head of the SCCU. He appointed Ms Breytenbach, Mr Van Zyl and Ms Nkula -Nyoni
as the prosecutors in the matter. They took their instructions directly from Mr Jordaan.
Ms Breytenbach was only involved in the first trial and the original charges. By the time
the trial de novo commenced, she had been suspended from the NPA and had
subsequently resigned.
[87] Although Ms Breytenbach did not testify in the trial, it is clear from her wri tten
response to the 20 July 2010 representations of the appellant, that the prosecution
had a prima facie case against the appellant in respect of all 23 original charges, based
on her evaluation of the evidence in the docket. The essence of the appellant’s
representations were denials that he had committed the offences that he was accused
of. In respect of count 1 (retaining R11 000 of the R15 000) the appellant merely
denied that that the underlying case was fictitious, to whi ch Ms Breytenbach
responded that the nub of the charge was his representation that the amount of
R15 000 was required as trap for the project, when all that had been required was
R4 000, and his retention of the R11 000 on termination of the project. In respect of
count 5 (payment of R150 000 to Mr Patel, a fictitious informer) he argued that the
payment of the reward to the informer was witnessed by himself and Mr Jonker. He
also relied on two affidavits deposed to by Mr Mrwebi. In the first one he had prepared
also relied on two affidavits deposed to by Mr Mrwebi. In the first one he had prepared
a report in support of payment of the R150 000. In the second affidavit Mr Mrwebi had
stated that the amount of R150 000 had not been dictated to him by the appellant. To
this Ms Breytenbach responded that the decision to prosecuted was based on the
responses by Senior Special Investigator in the case, Mr Pieterse, and the lead
investigator, Mr Naidoo, to th effect that there was no informer in the matter.
Furthermore, according to a report prepared by a handwriting expert, Mr Jonker’s
34
signature had b een forged. In addition, the alleged informer was not registered with
the DSO, and Mr Jonker seemed ambivalent on the payment to the alleged informer.
[88] With regard to count 14 (alleged payment of R50 000 to an informer that was
never registered as such with DSO) the appellant’s representation was that the
payment was made on the basis of a handwritten note dated 25 January 2005 with
the inscription: ‘”R50 000 23/7/2004 Geoph Ledwaba”’ and Mr Jonker’s comment
thereon that ‘”To get original from Malebo with receipts”’. In response Ms Breytenbach
reiterated that the alleged informer was never registered with the DSO, that the
appellant that the appellant had instructed his junior, Mr Doubada, to authorize the
payment without the latter having any knowledge about the matter, and that no official
receipt of payment by the
[89] In respect of count 15 (R30 000 paid out to the appellant without completion of a
Request for Advance or the DSO C-Fund claim form) the appellant had referred to two
documents in the forensic report on which was the inscription: ‘ The advance is
supported by a hand-written document (Annexure 57) with comments as follows ‘Ref
21 Mr Ledwaba R30 000”’. The advance is marked Ref 21 (Annexure 58 for
bookkeeping purposes’. He asserted that the documents supported advance payment.
He also maintained that the money was requested by Mr Tongwane, not him. Ms
Breytenbach responded that State case was that the advance payment was made
without the required documents. She stated that Mr Pieterse had c onfirmed that no
other documents could be traced in relation to the transaction, and, Mr Tongwane had
initially made a request for payment of R20 000 which the appellant changed to
R30 000.
[90] In respect of count 18 (engagement in unauthorised remunerated project while
employed by the NPA) the appellant argued that he had resigned from the NPA with
effect from October 2005 . Ms Breytenbach pointed out t hat the State case was that
effect from October 2005 . Ms Breytenbach pointed out t hat the State case was that
the tender was awarded in December 2004 and the appellant resigned in August 2005.
In conclusion, Ms Breytenbach submitted that ‘the National Prosecuting Authority
cannot afford not to prosecute on e of its own senior officials if such a strong case
exists’.
35
[91] As to counts 19 to 22 (theft of moneys paid in respect of the project awarded to
Ndumiso Trust or Kagiso Consulting) the appellant explained that the reason that the
money was paid into his personal account was that the bank account for Kagiso
Consulting had not yet been opened. He argued that he did pay the one interest holder,
Mr Tshepo Nkadimeng, his share of the money, but did not pay the second one, Mr
Lephoko because he had not contributed anything to the project. In response Ms
Breytenbach highlighted that the appellant refunded some of the moneys to the NPA.
[92] After Ms Breytenbach’s suspension, t he prosecution then continued under the
leadership of Mr Van Zyl assisted by Ms Nkula-Nyoni. His involvement in the trial de
novo was also short -lived, as he w ithdrew from the case due to a suspicion that he
had been compromised by the appellant. Although this fact alone d oes not sh ow
absence of animus iniuriandi on the Mr Van Zyl’s part, his withdrawal from the case
and the withdrawal of the 10 charges against the appellant , demonstrated his
willingness to acknowledge and take the necessary steps in relation to defects in the
case against the appellant. As was Ms Nkula-Nyoni’s support of the appellant’s s 174
application for a discharge on counts 1, 2, 5, 6, 7, 8, and 9. The appellant’s accusations
of malice and intent to injure against them are therefore baseless and unsupported on
the evidence.
[93] The appellant’s conspiracy is not supported by the objective facts, especially
when one has regard to how his three sets of representations were handled. First,
having assessed Ms Breytenbach’s response to the first set of representations, the
National Director of Public Prosecutions, Mr Simelane, was satisfied that there was a
prima facie case in respect of the charges, and that the prosecution should continue.
Second, the Deputy National Director of Public Prosecutions, Ms Mokhatla, was
Second, the Deputy National Director of Public Prosecutions, Ms Mokhatla, was
requested to review the charges against the appellant in the light of his second set of
representations. She too, having assessed the charges, was of the view that there
was a prima facie case against the appellant. She directed that the prosecution should
continue. Third, Mr Mrwebi, in response to the third set of representations, was
similarly of th e view that there was a prima facie case against the appellant, and
implored the prosecution to consider adding a charge of corruption.
36
[94] Were the appellant’s conspiracy theory to be accepted, it would have had to imply
that all the above were too, bi ased against him. There is no such suggestion by the
appellant that any of the se senior prosecutors was biased against him or that they
were part of the conspiracy to convict him on false charges. There is no suggestion
that they did not objectively and in dependently apply their minds to his
representations.
[95] On an assessment of the totality of the evidence that served before the high court
in the trial as well as the probabilities, I am of the view that the appellant’s conspiracy
theory is improbable. The appellant presented no credible evidence to demonstrate
that when the prosecution team took the decision to prosecute him, and when it
decided to proceed with the prosecution after considering his representations, they
directed their will to doing so in the awareness that reasonable grounds for the
prosecution were absent.
Conclusion
[96] For these reasons, I conclude that appellant had failed to prove, on a balance of
probabilities, that the employees of the NPA had no probable cause to instigate the
prosecution against the appellant or that they acted with malice or animus injuriandi.
[97] In the result, the appeal must fail. I make the following order:
The appeal is dismissed with costs including those of two counsel.
________________________
F KATHREE-SETILOANE
ACTING JUDGE OF APPEAL
37
Appearances:
Counsel for the appellant: ME Manala (with him MT Matlapeng)
Instructed by: KS Dinaka Attorneys, Pretoria
Webbers Attorney, Bloemfontein
The appellant (In person)
Counsel for the respondent: MC Erasmus SC (with him NAR Ngoepe and
HA Mpshe)
Instructed by: State Attorney, Pretoria
State Attorney, Bloemfontein.