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[2022] ZAFSHC 328
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S v Thabethe and Others (08/2022) [2022] ZAFSHC 328 (3 November 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 08/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter of:
THE
STATE
And
MBANA
PETER THABETHE
Accused
1
LIMAKATSO
MOOROSI
Accused
2
SEIPATI
SILVIA DHLAMINI
Accused
3
IQBAL
MEER SHARMA
Accused
4
NULANE
INVESTMENTS 204 (PTY) LTD
Accused
5
(as
represented by Accused 4)
DINESH
PATEL
Accused
6
ISLANDSITE
INVESTMENTS ONE HUNDRED AND EIGHTY Accused
7
(PTY)
LTD
(as
represented by Accused 8)
RONICA
RAGAVAN
Accused
8
CORAM:
MBHELE,
DJP
HEARD
ON: 27
SEPTEMBER 2022
DELIVERED
ON: 03
NOVEMBER 2022
[1]
This is an interlocutory application in a criminal matter where
accused 6, 7 and 8
(the accused) are seeking an order compelling
the State to provide them with further and better particulars.
An indictment
of about 61 pages in terms of which the accused are
charged of contravention of Public Finance Management Act, fraud and
Money
Laundering was served on all the accused. Below is an
extract from the indictment detailing the charges that the accused
are facing:
‘
COUNT
1
(IN
RELATION TO ACCUSED 1 AND 2 ONLY)
THAT
THE ACCUSED ARE GUILTY OF CONTRAVENTION OF SECTION 86(1) OF THE
PUBLIC FINANCE MANAGEMENT ACT, ACT 1 OF 1999, READ WITH SECTIONS
1,
36, 38, 39, 44(2) and 76(4)(c) OF THE
PUBLIC FINANCE MANAGEMENT ACT 1
OF 1999
AND FURTHER READ WITH SECTION 217(1) OF THE CONSTITUTION.
1.
In that during
the period between October 2011 and April 2012 and at or near
Bloemfontein in the regional division of Free State,
Accused 1, being
the Head of the Free State Department of Rural Development and its
Accounting Officer, and Accused 2, as the Head
of the Free State
Department of Agriculture and its Accounting Officer, did unlawfully
and wilfully, alternatively, in a grossly
negligent manner,
contravene the provisions of Section 86(1) of the said Act by failing
to comply with the following provisions
of the Act;
2.
To ensure the effective,
efficient, economical and transparent use of the resources of the
Department (
38(1)(b)
)
;
and or
3.
Take effective and appropriate
steps to prevent unauthorised, irregular and/or fruitless and
wasteful expenditure and losses resulting
from criminal conduct
(
38(1)(c)(ii)
);
and or
4.
The duty to comply, and to ensure
compliance by the Department, with the provisions of the PFMA
(
38(1)(n)
);
and or
5.
The duty not to commit the
department to any liability for which money has not been appropriated
(38(2))
.
6.
Accused 1 and 2 contravened the
provisions of the PFMA as aforesaid in that they committed the
Department to a contract in the amount
of R 24 984 240, 00
(twenty-four million nine hundred and eighty-four thousand, two
hundred and forty rand) with Accused
5, for the provision of services
for Project Mohoma Mobung without complying with the Department’s
own prescribed procurement
processes.
7.
Accused 1 and 2 (and their
subordinates, Accused 3 and Shadrack Cezula), wilfully disregarded
the PFMA provisions, as well as the
Department’s SCM Policies,
in order to g satisfy the “request” of the entity, Worlds
Window Impex India Pvt Ltd,
contained in the aforesaid entity’s
letter to the Department, to the effect that the “due diligence
and planning exercise
be conducted by an Agency of their choice to
provide the necessary level of comfort to their stakeholders”
.
8.
The Mohoma Mobung project was not
budgeted for during the financial year,2011/2012 and sundry payments
were used to settle the invoices
of the service provider, Accused 5.
9.
The Mohoma Mobung project was not
registered with and or approved by the Free State Provincial Treasury
as a Public Private Partnership
during the 2011/2012 financial year.
COUNT
2
(IN RELATION TO ACCUSED 1, 2,
3, 4, 5, 6, 7 and 8 ONLY)
THAT
THE ACCUSED ARE GUILTY OF THE CRIME OF FRAUD READ WITH
SECTION 103
OF
THE
CRIMINAL PROCEDURE ACT 51 OF 1977
AND FURTHER READ WITH THE
PROVISIONS OF SECTION 51(2) OF THE
CRIMNAL LAW AMMENDMENT ACT 105 OF
1997.
10.
In that during the period between 03
October 2011 and 19 April 2012, and at or near Bloemfontein in the
regional division of Free
State
,
Accused 1, 2, 3, 4, 5, 6, 7 and 8 did unlawfully, intentionally and
falsely, collude and conspire with one another and or others,
with
common purpose to defraud, misrepresent to the Free State Department
of Agriculture and Rural Development and or its employees,
that:
10.1.
A letter dated
03 October 2011, bearing the details of an entity, World
Window
Impex India Pvt. Ltd and its Director, Anil Misra, was received from
the said entity or
its Director in the ordinary course of business; and
or
10.2.
World Impex
India Pvt. Ltd had genuine intentions to “participate as a
Strategic Partner in Project Mohoma Mobung” as
set out in the
aforesaid letter; and or
10.3.
The
appointment of
Accused 5
as
a service provider made it impossible for the Department to follow
the normal procurement processes due to the fact that it was
a
condition from the intended Strategic Partner (World Impex India Pvt.
Ltd) that for them to be able to have comfort and confidence
in the
due diligence and feasibility study, they required the Department to
use the services of
Accused 5
as they
know the quality of work
Accused
5
has performed in
similar projects around the world; and or
10.4.
The request,
motivation and approval to deviate from the Department’s normal
tender procedures as contained in the submission
drafted by Shadrack
Cezula, dated 06 October 2011, were valid, bona fide and in
accordance with the Department’s Supply Chain
Management Policy
and Regulations; and or
10.5.
Accused 5
,
was a reputable agency and had the capacity to conduct the said due
diligence process; and or
10.6.
The amount of R 24 984 240,
00 (twenty-four million nine hundred and eighty four thousand, two
hundred and forty rand)
charged by Accused 4, 5 and 6 for the
provision of services to the Department as aforesaid, was justified,
not inflated and in
accordance with the acceptable government rates;
and or
10.7.
Payments made to Accused 5 in
terms of the contract concluded between Accused 5 and the Department,
were lawfully due to Accused
5.
11.
And the Accused did by means of the
aforesaid misrepresentations, induce the Department and or its
employees to its actual prejudice
to:
11.1.
Accept
the information provided by the Accused as being true and correct;
and or
11.2.
Enter into a contract with Accused 5 in
the amount of R 24 984 240, 00 (twenty-four million nine
hundred and eighty-four
thousand, two hundred and forty rand) for the
provision of services for Project Mohoma Mobung; and or
11.3.
Pay to Accused 5 the amount of R
24 984 240, 00 (twenty-four million nine hundred and
eighty-four thousand, two hundred
and forty rand) in accordance with
the said contract; and or
11.4.
Procure the services of Accused 5 in
contravention of the Supply Chain Management process of the
Department and the PFMA, Constitution,
12.
Whereas the Accused, when they
misrepresented as aforesaid, well knew that:
12.1.
There was no record
in the Department and in the relevant procurement file of any proof
of the submission of the aforesaid letter
by World Windows Impex
India Pvt. Ltd and or proof of receipt by any official of the
Department of such letter; and or
12.2.
The Department did
not publicly advertise a need for a service provider to provide a due
diligence report and or undertake a study
for the development of a
Concept Document for Project Mohoma Mobung, thus, there was no basis
for the Department to “receive”
World Impex India Pvt.
Ltd.’s proposal as per the aforesaid letter of 03 October 2011;
and or
12.3.
The purported
intentions, if any, by World Impex India Pvt. Ltd to “participate
as a Strategic Partner in Project Mohoma Mobung”
as set out in
the aforesaid letter were not genuine and bona fide; and or
12.4.
The alleged
insistence that World Window Impex India Pvt. Ltd would participate
in the said project subject to a proper due diligence
process being
conducted by a reputable agency chosen by themselves, was the
Accused’s way of bringing Accused 4, 5 and
Accused
6
, to contract with
the Department without lawful procurement processes being followed by
the Department officials (Accused 1, 2,
3 and Shadrack Cezula); and
or
12.5.
Accused 1, 2, 3, 4, 5, 6, 7, 8 and
Shadrack Cezula were aware that the appointment of Accused 5 by the
Department and the conclusion
of the contract to render services
under the Mohoma Mobung Project were not in accordance with the laws
of this country since Accused
5 was not appointed through a properly
advertised tender and the deviation process followed to appoint
Accused 5 was also not in
accordance with the prescribed process for
a deviation; and or
12.6.
Accused 1, 2, 3, 4, 5, 6, 7, 8 and
Shadrack Cezula were aware that payments made to Accused 5 in terms
of the contract concluded
between Accused 5 and the Department were
not lawfully due to Accused 5; and or
12.7.
Accused 5
was
not a reputable agency and did not have the capacity to conduct the
said due diligence process. Thus,
Accused
5
immediately
outsourced the whole contract to Deloitte; and or
12.8.
The aforesaid contract amount was
inflated and not in accordance with acceptable government rates; and
or
12.9.
The request,
motivation and approval to deviate from the Department’s normal
tender procedures as contained in the submission
drafted by Shadrack
Cezula, dated 06 October 2011, was not in accordance with the
Department’s Supply Chain Management Policy
and Regulations. In
actual fact, the request, motivation and approval made by Accused 1,
2, 3 and Shadrack Cezula was intentionally
aimed at bypassing the
PFMA, Section 217 of the Constitution and the Department’s own
Supply Chain Management Policy and
Regulations; and or
12.10.
The contents of
paragraph 3 of the 06 October 2011 submission prepared by Shadrack
Cezula were false in that the World Window Impex
India Pvt. Ltd.
letter
does not state that “they
know the quality of work performed by Accused 5 in similar projects
around the world”.
COUNT
3
(IN
RELATION TO ACCUSED 4, 5, 7 AND 8 ONLY)
MONEY
LAUNDERING – THAT THE ACCUSED ARE GUILTY OF THE CRIME OF
CONTRAVENTION OF SECTION 4 READ WITH SECTIONS 1, 8 (1) OF ACT
121 OF
1998 AND FURTHER READ WITH
SECTION 51(2)
OF THE
CRIMINAL LAW
AMENDMENT ACT 105 OF 1997
.
13.
In that during the period between 08 November 2011 and 06 July 2012
and at or near Bloemfontein
in the regional division of the Free
State and or at or near Johannesburg in the regional division of
Gauteng, the Accused, unlawfully,
colluded and conspired with one
another and with others, with a common purpose to launder the
proceeds of unlawful activities,
whilst they knew or ought reasonably
to have known that certain property to wit, money amounting to
R19 070 934, 00 (nineteen
million and seventy thousand nine
hundred and thirty four rand), which was derived by
Accused
5
from the Free State
Department of Agriculture and Rural Development as a portion of a
total payment of
R24 984 240,
00 (twenty four million nine hundred and eighty four thousand, two
hundred and forty rand)
which
the said Department paid to
Accused
5
in terms of the
contract between the Department and
Accused
5
referred to in
Counts 1 and 2, was proceeds of unlawful activities or that it formed
part of the proceeds of unlawful activities
relating to the offence
of Contravening the
Public Finance Management Act 1 of 1999
and or
Fraud, referred to in Count 1 and 2, agreed and arranged that;
14.
The said
property, to wit, the amount of R 19 070 934, 00 (nineteen
million and seventy thousand nine hundred and thirty-four
rand), be
transferred from
Accused 5’
s
Bank of Baroda Account number, [....], to the off-shore Standard
Charter Bank Account number [....], of Gateway Limited, under
the
pretext that the said property was payment by
Accused
5
to Gateway Limited
for services rendered in terms of a contract concluded between them
on 2 December 2011.
15.
And the said
agreement or arrangement had the effect of concealing or disguising
the nature, source, location, disposition and/or
movement of the said
proceeds or the ownership thereof or any interest which anyone may
have in respect thereof in that the said
property was combined with
other money in the bank accounts of
Accused
5
, Accused 7, Wone
Management,
Pragat Investments
,
Confident Concepts (Pty) Ltd, Oakbay Investments (Pty) Ltd, Tegeta
Resources (Pty) Ltd and Arctos Trading (Pty) Ltd and then transferred
with bewildering rapidity between the said bank accounts and
ultimately transferred to the off-shore account of Gateway Limited
as
set out hereunder:
a.
On or
about 08 November 2011:
151.1.1
the Department
made payment in the amount of R12 492 120, 00 into
Accused
5
’
s
Nedbank Account with number [....];
151.1.2
Accused 5
transferred the
amount of R10 000 000, 00 to Pragat Investments’ ABSA
Bank Account with number [....];
151.1.3
Pragat
investments further transferred the amount of R9 800 000,
00 to Accused 7’s ABSA Bank Account with number
[....];
151.1.4
Pragat
investments further transferred the amount of R123 000. 00 to
Pragat’s Bank of Baroda account number [....]
b.
On
or about 11 November
2011:
151.2.1
Accused 5
transferred the
amount of R2 000 000, 00 from its aforesaid Nedbank account
to Pragat Investments’ aforesaid ABSA
account;
151.2.2
Pragat Investments
further
transferred the amount of R2 000 000, 00 to Accused 7’s
aforesaid ABSA account;
151.2.3
Accused 7
transferred the R2, 000, 000. 00 on the same day to Annex
Distribution (Pty) Ltd.
c.
On 22
December 2011, the Department made payment in the amount of R4 164
040, 00 into
Accused 5’
s
aforesaid Nedbank account.
d.
On 05
January 2012:
151.4.1
Accused 7
transferred from its aforesaid ABSA account, the amount of R
4 000 000, 00 into
Pragat Investment
s’
aforesaid ABSA account;
Pragat
Investment
transferred
the amount of R 4 000 000, 00 to the aforesaid Nedbank
account of
Accused 5
;
e.
On the
following day, 6 January 2012,
Accused
5
transferred from
its aforesaid Nedbank account the amount of R8 000 000, 00
to
Wone Management’s
Standard Bank Account
with number 221044620
.
f.
On 10
January 2012:
Accused
7 transferred from its aforesaid ABSA account, the amount of
R3 000 000, 00 into
Pragat
Investment
s’
aforesaid ABSA account;
151.6.1
Pragat Investments
transferred
the amount of R3 000 000, 00 to the aforesaid Nedbank
account of
Accused 5
.
g.
On
11 January 2012,
Wone Management
returned R 8 000 000,
00 from its aforesaid Standard Bank account to the aforesaid Nedbank
account of
Accused 5
in
two tranches of R4 999 999, 00 and R3 000 001,
00.
h.
On 12
January 2012:
151.8.1
R9 000 000,
00 was transferred from Accused 5’s aforesaid Nedbank account
to
Pragat Investments;
151.8.2
R9 000 000, 00 was
transferred
from
Pragat’s aforesaid ABSA account to Accused 7’s aforesaid
ABSA account;
151.8.3
R 9 000 000,00
was transferred from accused 7’s aforesaid ABSA account to the
ABSA account of Confident Concepts (Pty) Ltd,
account number [....];
151.8.4
R9 000 000
was transferred from the aforesaid ABSA account of Confident Concepts
to the ABSA account number [....] of
Sahara Computers (Pty) Ltd;
151.8.5
R9 000 000
was transferred from the aforesaid ABSA account of Sahara Computers
to an unknown State Bank of India account.
i.
On 25
January 2012:
151.9.1
R1 000 000
was transferred from Accused 5’s aforesaid Nedbank account into
the aforesaid ABSA account of Pragat;
151.9.2
R1 000 000 was
transferred from
Pragat Investments’
aforesaid ABSA
account to Accused 7’s aforesaid ABSA account;
151.9.3
R1 160 000. 00
was transferred to Oakbay Investments (Pty) Ltd.;
151.9.4
R1 000 000. 00
was transferred to TNA Media (Pty) Ltd.
j.
On 30
January 2012:
150.1.1
R1 000 000 was
transferred from Accused 7’s aforesaid ABSA account into
Pragat
Investment
s’
aforesaid ABSA account;
150.1.2
R1 000 000
was transferred from Pragat Investments’ aforesaid ABSA account
to Accused 5’s aforesaid Nedbank
account;
150.1.3
Two payments
of R500 000 were made to SARS with reference EPAY.
k.
On 30
March 2012, the Department made payment in the amount of R 4 000
000, 00 into
Accused 5’
s
aforesaid Nedbank account.
l.
On 04
April 2012:
151.12.1
Accused 5
transferred the said
amount to its Bank of Baroda Account number, [....];
151.12.2
Accused 5
made
a transfer in the amount of R 3 900 000, 00 from its Bank
of Baroda account to the aforesaid ABSA account of
Pragat
Investments
.
m.
On 05
April 2012, Pragat Investments transferred from its aforesaid ABSA
account, the amount of R 3 750 000, 00 into
Accused
7’
s aforesaid
ABSA account.
n.
On 10 April
2012, Pragat Investments transferred from its aforesaid ABSA account,
the amount of R123 000, 00 to its aforesaid
Bank of Baroda
Account.
o.
On 19
April 2012, the Department made payment in the amount of R4 328
080, 00 into
Accused 5’
s
aforesaid Nedbank account.
p.
On 04 May
2012,
Accused 5
transferred
the amount of R 1 500 000, 00 to its aforesaid Bank of
Baroda Account. It also made a payment to Deloitte
in the amount of
R1 538 457. 86 on the same day.
q.
On or
about 09 May 2012,
Accused 5
made
a transfer in the amount of R 1 400 000, 00 from its Bank
of Baroda account to the aforesaid ABSA account of Pragat
Investments.
r.
On 10 May
2012,
Pragat Investments
transferred from its
aforesaid ABSA account the amount of R1 200 000, 00 to
Accused 7’s aforesaid ABSA account,
whereupon the following
transfers were made on the same day on ABSA accounts on the Sahara
Computers Cash Focus facility:
151.18.1
Accused 7
transferred from its aforesaid account the amount of R1 200 000,
00 into Oakbay Investments (Pty) Ltd’s
account with number
[....];
151.18.2
Oakbay
Investments (Pty) Ltd transferred from its aforesaid account the
amount of R1 200 000,00 into the Tegeta Resources (Pty)
Ltd account
with number [....]; and
151.18.3
Tegeta
Resources (Pty) Ltd transferred from its aforesaid account the amount
of R1 200 000,00 to the Bank of Baroda for the account
of Arctos
Trading (Pty) Ltd.
s.
On 15 May
2012, Arctos transferred from its aforesaid Bank of Baroda account
the amount of R1 281 837, 98 to the Loan
Account of Arctos
with the Bank of Baroda, account number [....].
t.
On 02 July
2012,
151.20.1
Oakbay
Investments (Pty) Ltd transferred from its aforesaid account the
amount of R7 000 000,00 into the aforesaid ABSA account
of Accused 7.
151.20.2
Sahara
Computers transferred from its aforesaid ABSA account R1 800 000
into the aforesaid ABSA account of Accused 7.
151.20.3
Accused 7
immediately transferred from its aforesaid ABSA account, the amount
of R 8 800 000, 00 into
Pragat
Investments’
aforesaid
ABSA account.
151.20.4
Pragat Investment
s
immediately
transferred from its aforesaid ABSA account the amount of R
8 800 000, 00 into the aforesaid Bank of Baroda
account of
Accused 5
.
151.21
On 03 July
2012,
Accused 5
transferred
the amount of R 8 882 142.00 from its aforesaid Bank of Baroda
account to the aforesaid off-shore Standard Chartered
Bank Account
number
[....]
,
of Gateway Limited.
151.22
On 06 July
2012,
151.22.1
Accused 7
transferred from its aforesaid ABSA account, the amount of R 10
200 000, 00 into
Pragat
Investments’
aforesaid
ABSA account.
151.22.2
Pragat Investments immediately
transferred from its
aforesaid ABSA account the amount of R 10 200 000, 00 into
the aforesaid Bank of Baroda account of
Accused
5.
151.22.3
Accused 5
immediately
transferred the amount of R10 188 792, 00 from its
aforesaid Bank of Baroda account to the aforesaid off-shore
Standard
Charter Bank Account number
[....]
, of Gateway
Limited.
151.23
The aforesaid
bewildering array of transactions had no legitimate business purpose.
Instead, the transactions had the effect of
obscuring the true nature
of the funds as criminal proceeds derived from the offences
perpetrated on the Free State Department
of Agriculture and/or Rural
Development, where the funds originated from.
151.24
The aforesaid
arrangements or agreement had the effect of enabling or assisting
Accused 1 and 2 who committed the offence of Contravening
Section
86(1)
of the PFMA as set out in Count 1, and Accused 1 to 8 who
committed the offence of Fraud as set out in Count 2, to avoid
prosecution
and or to enable or assist
Accused
4, 5 and Wone Management and its Directors, Pragat Investments and
its Directors, Accused 7 and its Directors, Gateway Limited
and its
Director,
Tegeta
Resources (Pty) Ltd and its directors, Confident Concepts (Pty) Ltd
and its directors, Sahara Computers (Pty) Ltd and its
directors and
Oakbay Investments (Pty) Ltd and its directors to remove a portion of
the funds from the jurisdiction of this honourable
court to a
jurisdiction beyond the borders of South Africa, viz. the United Arab
Emirates and placed it at the disposal of the
accused in the UAE
which resulted in diminishing the said property acquired as a result
of the commission of the said offences.
COUNT
4
(IN
RELATION TO ACCUSED 4, 5, 7 and 8)
THAT
THE ACCUSED ARE GUILTY OF THE CRIME OF FRAUD READ WITH
SECTION 103
OF
THE
CRIMINAL PROCEDURE ACT 51 OF 1977
AND FURTHER READ WITH THE
PROVISIONS OF
SECTION 51(2)
OF THE
CRIMINAL LAW AMENDMENT ACT 105 OF
1997
151.25
In that during the period between 2 July
2012 and 6 July 2012, and at or near Johannesburg in the regional
division of Gauteng
,
Accused 4, 5, 7 and 8
did
unlawfully,
falsely,
collude and conspire
with one another and with others, with a common purpose to defraud
,
and with intention to defraud, misrepresent to the Bank of Baroda and
or its employees and or the Reserve Bank of South Africa
and or its
employees and or the National Treasury and or its employees that:
151.26
The payments of R8
800 000, 00 (eight million eight hundred thousand rand) and R10
200 000, 00 (ten million two hundred
thousand rand) made on 2
and 6 July 2012 respectively, by
Pragat
Investments
to
Accused 5
’
s
Bank of Baroda account, were made in the ordinary course of business;
and or
151.26.1
Accused 5 had concluded an arm’s
length agreement, in the ordinary course of business with Gateway
Ltd; and or
151.26.2
The total amount of
R
19 070 934, 00 (nineteen million and seventy thousand nine
hundred and thirty-four rand)
that
was transferred to Gateway Ltd, was due and payable to Gateway Ltd by
Accused 5, as a result of a legitimate business transaction
between
them;
151.27
And the Accused did by means of
the aforesaid misrepresentations induce the Bank of Baroda, the
Reserve Bank of South Africa and
or the National Treasury to suffer
actual or potential prejudice, as follows:
151.27.1
The Bank of Baroda, National
Treasury and or the Reserve Bank granted permission for the said
transfer in circumstances where they
ought not to have granted such
permission as it resulted in an outflow of funds from South Africa
that ought not to have been permitted
and impacted improperly on the
balance of payments and the regulation of currency exchanges between
South Africa and the United
Arab Emirates.
151.27.2
It also had the effect of placing
proceeds of fraud beyond the reach of the South African regulatory
and criminal justice authorities
and exposing the Bank of Baroda to
reputational damage.
151.28
Whereas the
Accused, when they misrepresented as aforesaid, well knew that:
151.28.1
The aforesaid
payments of R8 800 000, 00 (eight million eight hundred thousand
rand) and R10 200 000, 00 (ten million
two hundred thousand
rand) made on 2 and 6 July 2012 respectively, by
Pragat
Investments
to
Accused 5’s
Bank
of Baroda account, were not made in the ordinary course of business;
and or
151.28.2
The aforesaid
amounts paid by
Pragat
Investments
to
Accused 5
,
were made available by Accused 7 on the aforesaid dates; and or
151.28.3
Accused 5
and
Gateway Ltd did not transact at arm’s length, in the ordinary
course of business; and or
151.28.4
The amounts
mentioned above were not due and payable to Gateway Ltd, by
Accused
5
, since the two
parties did not have a
legitimate
business transaction between them; and or
151.28.5
The contract
between
Accused 5
and
Gateway Ltd was neither valid nor bona fide; and or
151.28.6
Gateway was not entitled to
payment for services rendered as it did not render services under the
contract with Accused 5.
The services were rendered by Deloitte
in terms of its contract with Accused 5.
151.28.7
The amounts
that were transferred to Gateway Ltd, were proceeds of unlawful
activities as described in counts 1, 2 and 3.’
[2]
Accused 6, 7 and 8 filed requests for further particulars which the
State responded
to. Upon receipt of the State’s response the
accused filed request for further and better particulars. It is the
response
of the state to the request for further and better
particulars that triggered this application. The state is of the view
that the
information provided to the accused is sufficient to enable
them to prepare for trial and answer the case against them.
[3]
Further particulars requested by the accused are listed in over 200
pages. I
will not enumerate them one by one. At the heart of
the accused 6,7 and 8 s’ complaint is that the indictment, the
statement
of facts as well as the state’s response to the
request for further particulars fail to disclose, with clear
particularity
the case that the accused are expected to answer at
trial. The accused complain that the information provided by the
state is scanty
and fails to show the role that each of the accused
played in the commission of the alleged offences. They require the
prosecution
to set out in detail when and where the accused conspired
to commit the alleged offences. They require exact roles played by
each
of the accused when they colluded to commit the alleged
offences. The time and the place where the meetings were held and
individuals
who participated in those meetings.
[4]
Section 87(1)
of the
Criminal Procedure Act,
[1
]
provides as follows:
‘
An
accused may at any stage before any evidence in respect of any
particular charge has been led, in writing request the prosecution
to
furnish particulars of any matter alleged in that charge, and the
court before which a charge is pending may at any time before
any
evidence in respect of that charge has been led, direct that
particulars or further particulars be delivered to the accused
of any
matter alleged in the charge, and may, if necessary, adjourn the
proceedings in order that such particulars may be delivered.’
[5]
The prosecution is obliged by law to provide the accused with all
material evidence
as a requirement for a fair trial. This enables the
accused to properly organise his defence before the trial court so as
to influence
the outcome of the proceedings. It is well established
that the purpose of further particulars is to enable the accused to
know
the case that he has to meet.
[6]
Section 35 (3) (a) and (b) of
The Constitution Act of 1996
provides that
every
accused person has a right to a fair trial, which includes the right
to be informed of the charge with sufficient detail
to answer it and
to have adequate time and facilities to prepare a defence.
[2]
[7]
The writer of
The
Constitutional
Criminal Procedure
[3]
states the following when dealing with the right to be informed of
the charge with sufficient detail:
“
The
right to a detailed charge constitutionalises the current rules
pertaining to the drafting of the charge sheets and indictments
[4]
. It is peremptory that a charge set forth the relevant offence in
such a manner and with such particulars as may be reasonably
sufficient to inform the accused of the nature of the charge
[5]
.
It is not sufficient merely to state the name of an offence; all
elements of the offence should be spelled out as well. Furthermore,
most importantly, the factual allegations on which the charge is
based should be given. In assessing the sufficiency of information,
the point of departure is that the accused is presumed innocent and
thus has no knowledge of the facts. Where a charge is not detailed
enough, further particulars can be requested and their enforcement is
in the discretion of the court”
[8]
The court has to determine whether the indictment, the statement of
facts and the
further particulars provided sufficiently informs the
accused of the case he has to answer. It is the court that has to
determine
the adequacy of the information provided by the state. The
author of
Hiemstra
Criminal Procedure
11
th
ed p 14-21
[6]
sets out the
criteria for the court to determine whether sufficient information
has been provided to the defence as follows:
“
(a)
Does the accused need the information to answer to the charge?
(b)
Would refusal to give the particulars prejudice the accused?
(c)
If the particulars are requested after plea, before evidence has been
led, what is the relevance of the particulars?
(d)
What does the interest of justice dictate? The fact that the defence
had access to the police docket must be taken into account
by the
court in assessing the adequacy of information in possession of the
accused.
[7]
”
[9]
In count 2 the accused persons are jointly charged with the offence
of fraud, wherein
the prosecution alleges that the accused on a date
just before 03 October 2011 and February 2012 acted in concert and
with common
purpose
to
defraud, the Free State Department of Agriculture and Rural
Development (DARD) and or its employees. The charge shows how the
misrepresentation was committed and the entities through which the
misrepresentation was facilitated as well as individual role
players
who held positions of authority in companies that benefited from the
misrepresentation. The state admitted that the
exact time of
the alleged collusion is unknown to the state.
[10]
The state makes the following assertions, amongst
others, in support of its allegation that the accused
acted in common
purpose: That:
As
at 3 October 2011, the Free State Department of agriculture and Rural
Development did not have a need to for the service of producing
a
feasibility study. There was no budget neither were there funds to
support the project. Accused 6, without procurement processes
being
followed nor submitting any proposal for the said services, signed a
contract on behalf of accused 5 in terms of which the
Department had
to pay an amount in excess of R24 million to accused 5. The money is
alleged to have been paid to accused 5 and
from there it went to
Pragat Investments (Pty) Ltd and accused 7. Accused 5 was at the time
controlled by the directors of accused
7 where accused 8 was a Chief
Financial Officer. The said money was channelled to other accounts
ending up with a Company registered
in the United Arab Emirates.
[11]
Accused 5 is alleged to have entered into a
subcontracting agreement with Delloitte in an amount of R1 538 457.86
for the services that it charged the department R24 984 240.00
for. The state further alleges that accused 6 was
in charge of
negotiations on behalf of accused 5 when the subcontracting agreement
was entered into.
[12]
The accused challenge the responses from the state on the basis that
they do not specify individual
role players in the alleged offences.
In count 3 and 4 accused 7 and 8 are charged with Money
Laundering and Fraud respectively.
The indictment alleges that the
money that was paid as a result of contracts which were entered into
in violation of the constitution
and the
Public Finance Management
Act were
channelled through accused 7 and other companies associated
with accused 8.
[13]
Showing association is a matter of evidence which can only be cured
during trial, the same goes with
matters that require inferential
reasoning. Issues raised by the accused in their requests for further
particulars are matters
of evidence. For the state to show that
accused 6, who is a business man, knew that state institutions have
to engage in competitive
bidding processes to procure services for
the amount alleged in the indictment would require inferential
reasoning which can only
be done through evidence.
[14]
Having considered the indictment, the statement of facts provided by
the state and the fact that
the accused have access to the docket, I
am of the view that Counsel for all the accused have adequate
information to prepare for
trial. I am satisfied that the information
provided sufficiently informs all the accused of the case that they
have to meet. Even
if prejudice arises during trial the
presiding Judge can always make an appropriate order to obviate a
situation where the accused
‘s right to a fair trial is
compromised. The application must fail.
In
view of the above the following order is made:
ORDER
[15]
The application brought by accused 6,7 and 8 in terms of
s 87
of the
Criminal Procedure Act, Act
51 of 1977 to compel the State to furnish
further particulars, is dismissed
N.M.
MBHELE, DJP
On
behalf of the applicants: 6: Adv
Aldwage
Instructed
by:
Schindler
Attorneys
7
& 8:
Adv Hellens SC
Instructed
by:
Krause
Attorneys Incorporated
BLOEMFONTEIN
On
behalf of the respondent:
Adv
Cassiem SC
Adv
Serunye
Adv
Witbooi
Instructed
by: The
Director of Public Prosecutions
BLOEMFONTEIN
[1]
Section 87(1)
of The
Criminal Procedure Act 51 of 1977
[2]
The constitution of the Republic of South Africa, 1996
[3]
Constitutional Criminal Procedure by Nico Steytler page 227
[4]
S v Friedman (1) 1996SACR 181(W) at 190b
[5]
S 84(1)
CPA
[6]
A Kruger Hiemstra Criminal Procedure 2019. Ed p14-21
[7]
S v Chao and Others
2009 (1) SACR 479
( C ) par. 44