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[2022] ZAECELLC 8
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Fanoe and Another v S (CC 40/21) [2022] ZAECELLC 8; 2022 (2) SACR 166 (ECMk) (28 February 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
(sitting
as the East London Circuit Court)
Case
no. CC 40/21
REPORTABLE
In
the application between:
DEAN
FANOE

First applicant/accused no. 10
MANTELLA
TRADING 522 CC

Second applicant/accused no. 11
and
THE
STATE                                                                                               Respondent
In
re the trial of:
THE
STATE
versus
PUMLANI
MKOLO AND 13 OTHERS
JUDGMENT
IN RESPECT OF SEPARATION OF TRIALS
STRETCH
J.:
[1]
The
indictment in this matter refers to 27 charges and various
alternatives. The first accused (the regional secretary of the ANC)

is the only one of the 14 accused who has been charged on all 27
counts. The first applicant (Mr Fanoe) is a member of the second

applicant, a close corporation known as Mantella Trading 522. The
applicants face one count only, namely count four, and the two

alternative charges thereto.
[1]
[2]
The
offences with which the applicants have been charged relate to
proceeds of unlawful activities as outlined in chapter 3 of the

Prevention of Organised Crime Act 121 of 1998 (POCA). The main count
is money laundering, in contravention of s 4 of POCA. The
first
alternative is assisting another to benefit from the proceeds of
unlawful activities, in contravention of s 5. The second
alternative
is the acquisition, possession or use of proceeds from unlawful
activities, in contravention of s 6.
[3]
The
applicants have brought an application for a separation of trials in
terms of s 157 of the Criminal Procedure Act 51 of 1977
(the CPA).
Accused number 14, who previously expressed an intention to launch a
similar application, failed to deliver his application
in compliance
with an order made by Tokota J on 22 September 2021, and he is deemed
to have abandoned the application. None of
the remaining accused have
launched, or have indicated that they wish to bring similar
applications. But for the prosecution’s
opposition, the
application before me stands unopposed.
[4]
The
charges preferred against the accused relate to events which
transpired following upon the death of President Nelson Mandela
on 5
December 2013. Immediately after the President died, (according to
the indictment), national treasury authorised the use of
municipal
funds for transport services and venue costs associated with various
memorial services in his honour.
[5]
It is
alleged that during December 2013 accused no. 1 (the regional
secretary of the ANC in the Amatole region of the Eastern Cape)

agreed with a belatedly appointed service provider (one Mr Sokwali, a
member of a close corporation known as Victory Ticket 750)
that
Victory Ticket would submit an inflated quote to Buffalo City
Municipality (BCM) for the transportation of mourners to venues,
the
inflated portion of which, when paid, was distributed by Sokwali as
per the instructions of accused no. 1, inter alia, to further
the
objectives of the ANC political party.
[6]
It was
also decided, so it is alleged, that part of the municipal funding
would be used to pay for T-shirts and for catering. At
a meeting held
on 9 December 2013, which was not attended by the applicants, accused
no. 1 announced that the first applicant would
supply T-shirts
(presumably for mourners) and that the first applicant would invoice
Sokwali and receive payment from Sokwali.
The meeting was also
attended by accused no. 4 (an ANC member and the speaker of the BCM
council), no. 5 (an ANC member and a BCM
councillor), no. 7 (the BCM
acting director for executive support services) and no. 8 (a business
woman and member of accused no.
9, a close corporation which goes by
the name “Forty Wings Lodge”).
[7]
It is
alleged that accused no. 3 (an ANC member, and the regional treasurer
and executive deputy mayor of BCM) ordered the T-shirts
from a
supplier in KwaZulu-Natal.  They were delivered to the first
applicant who paid for the order. After having doubled
what he paid
for the T-shirts, the first applicant sold the T-shirts on and
submitted an invoice in the second applicant’s
name, to Sokwali
and to Victory Ticket for payment to the tune of R1 380 000.
It is alleged that BCM paid the money to
Sokwali and that Sokwali
(having been instructed to do so by accused no. 1) in turn paid the
money over to the second applicant.
[8]
It is
further alleged that accused nos 1 to 5 (with whom accused nos 6 and
7 made common purpose) used their positions within, and
in connection
with BCM, to defraud the municipality and to misappropriate municipal
funds earmarked for the transportation of mourners
to centres where
memorial services were to be held. The indictment alleges that
accused nos 8 and 9 were beneficiaries of this
scheme and were either
present or represented when the aforesaid mischief was planned, and
were at all times aware that their benefit
was derived from the
unlawful activities of the aforementioned accused. It is furthermore
alleged that the applicants were also
beneficiaries of this scheme,
and that they (although they did not attend the 9 December meeting),
“by necessary inference
knew that the procurement of the second
applicant’s services was not lawful and regular, and knew, or
ought to have known”
that the funds paid to the second
applicant for the T-shirts by Victory Ticket, were the proceeds of
unlawful activities.
[9]
With
respect to count 4 (which is a contravention of s 4 of POCA), it is
alleged that the applicants (who knew or ought reasonably
to have
known that R5 985 000 which BCM had paid to Sokwali, was
the proceeds of unlawful activities), and accused 1
(who acted in the
execution of a common purpose with accused nos 2 to 9 to commit the
offences of fraud and money laundering),
entered into an agreement or
engaged in an arrangement or transaction amongst themselves and/or
with Sokwali and/or with Victory
Ticket for payment of municipal
funds via Victory Ticket of R1 380 000 to the second
applicant for the procurement of
the T-shirts, which was expressly
prohibited in terms of the national treasury instructions. This
series of events, it is alleged,
had the effect, or was likely to
have the effect of concealing or disguising the nature, source,
location, disposition or movement
of the money, or its ownership, or
any interest which anyone may have had in it, or that it had the
effect, or was likely to have
had the effect, of enabling or
assisting “the accused” to remove or diminish the funds
which they had fraudulently
acquired from BCM.
[10]
In the
first alternative, the prosecution alleges that the applicants are
guilty of contravening s 5 of POCA, in that during December
2013 the
applicants (being persons who knew or ought reasonably to have known
that accused no. 1 and/or the ANC, through Sokwali,
had obtained
R5 985 000, being the proceeds of unlawful activities),
unlawfully entered into an agreement with accused
no. 1, and/or
accused no. 3, and/or Sokwali, and/or  “another unknown
person” who was acting on behalf of one
or more or all of the
aforesaid persons, or that the applicants engaged in an arrangement
or transaction with accused no. 1 and/or
accused no. 3, and/or
Sokwali and/or the  said unknown person, whereby the said
proceeds of unlawful activities were used
to acquire property on
behalf of accused no. 1 and/or the ANC,  “or to benefit
them in any other way (to pay for the
T-shirts)”.
[11]
In the
second alternative, it is alleged that the applicants are guilty of
contravening s 6 of POCA, in that they, being persons
who knew or
ought reasonably to have known that accused 1 and/or the ANC, through
Sokwali, had obtained R5 985 000 (being
the proceeds of
unlawful activities), nevertheless unlawfully acquired, used or had
in their possession R1 380 000 (being
part of the
R5 985 000).
[2]
[12]
At the
commencement of this trial, all the accused pleaded not guilty to all
of the charges, and with the exception of accused 7
and the two
applicants, declined to make any plea explanations. Accused no. 7
(the BCM acting director of executive support services),
in her plea
explanation, inter alia denied having been part of any meeting on 9
December 2013, or of any other  meeting where
it was decided
that municipal funding would be used to pay for T-shirts and
catering. She admitted to having attended a meeting
on 11 December
2013 where the BCM council, inter alia, resolved that she should
provide a report in respect of the funds that were
allocated for the
transport of mourners. According to her explanation, she was called
by the BCM chief financial officer and acting
city manager on 12
December 2013, in order to sign an “application for deviation”,
which he had prepared. At that same
meeting she was informed that a
budget of R10 million would be injected into her department, which
department would be the “end
user”. She accordingly
signed the application. She denied having been involved in the
appointment of Victory Ticket as a
service provider, and said that
she met Mr Sokwali for the first time on 21 January, when she had
summonsed him to provide a detailed
report on the disbursements.
[13]
The
first applicant also made a written statement in terms of s 115(1) of
the CPA on his own behalf and on behalf of the second
applicant. It
is necessary to repeat the entire statement for the purposes of this
judgment. It reads as follows:
[3]
WRITTEN
STATEMENT IN TERMS OF
SECTION 115(1)
OF
THE
CRIMINAL PROCEDURE ACT
1.
This
statement is made on behalf of Accused numbers 10 and 11 (“the
Accused”).
2.
The
purpose of the statement is to indicate the essential basis of the
Accuseds’ defence so as to eliminate unnecessary evidence
by
stipulating exactly what is disputed by the Accuseds’ plea to
the single charge (Count 4) apparent from the undated indictment

served on the Accused in the Magistrate’s Court, East London on
28 July 2021 (“the indictment”), being:
2.1
A
contravention of
section 4
, alternatively
section 5
, further
alternatively section 6 of the Prevention of Organised Crimes Act No.
121 of 1998 that;
2.1.1
During
December 2013, the Accused knew, or ought reasonably to have known,
that R5 985 000.00 was, or formed part of,
the proceeds of
unlawful activities of which R1 380 000.00 was paid to
Accused 11 by Victory Ticket 750 CC for the procurement
of T-shirts
which payment had the effect, or was likely to have the effect, of
concealing or disguising the nature, source, location
or disposition
of the payment or the ownership of the payment or enabling or
assisting the Accused to remove or diminish the payment
acquired as a
result of the commission of the offence of fraud.
2.1.2
Alternatively
(first alternative to Count 4) that the Accused agreed or entered
into an arrangement or transaction with Accused
1 and/or Accused 3
and/or Sokwali and/or an unknown person to use the proceeds of
unlawful activities of R5 985 000.00
to pay for T-shirts.
2.1.3
Further
alternatively (second alternative to Count 4) that the Accused
unlawfully acquired, used or had possession of part of the
amount
obtained by Sokwali of R5 985 000.00, being R1 380 000,00,
the Accused knew when, or ought to have known,
that R5 985 000.00
and R1 380 000.00 was the proceeds of unlawful activities
3.
The
Accused plead not guilty to the charge of a contravention of section
4, alternatively section 5, alternatively section 6 of
the Prevention
of Organised Crimes Act No. 121 of 1988 as stipulated in the said
indictment.
4.
The
Accused admit, in terms of section 220 of the CPA, and do not place
in issue, that they contracted with Victory Ticket 750 CC
to supply
T-shirts, that they sourced and procured the T-shirts from Mcwabe
Printers, Pietermaritzburg, paid the said printers
from own funds,
rendered an invoice to Victory Ticket 750 CC and received payment
from Victory Ticket 750 CC. More particularly,
the Accused admit in
terms of section 220 of the CPA, and do not place in issue:
4.1
Copies
of the invoice of Mcwabe Printers being invoice 947 (with no vat) and
quotation 0025 (including vat) annexed marked “A”
and
“B”.
4.2
A
copy of the bank statement of Mcwabe Printers, annexed marked “C”,
which evidence two payments from Accused 11 of
R604 000,00 on 12
December 2013 and R84 560,00 (the vat component) on 11 February
2014.
4.3
A copy
of Accused 11’s invoice to Victory Ticket 750 CC for
R1 380 000,00 annexed marked “D”.
4.4
A copy
of the bank statement of Victory Ticket 750 CC evidencing payment by
Victory Ticket 750 CC to Accused 11 for R1 380 000.00,

annexed marked “E”.
5.
The
Accused deny, and place in issue, that they knew, or ought to
reasonably have known, that the payment or payments of BCMM to

Victory Ticket CC of R5 985 000,00 or the payment to
Accused 11 of R1 380 000,00 by Victory Ticket 750 CC,
was
the proceeds of any unlawful activity or the proceeds of theft or
fraud.
6.
The
Accused have no knowledge of whether the allegation that the payment
or payments of BCMM to Victory Ticket 750 CC of R5 985 000.00

or the payment to Accused 11 of R1 380 000.00 by Victory
Ticket 750 CC were the proceeds of any unlawful activity or
the
proceeds of theft or fraud, are true and correct, are unable to
dispute such allegations and do not place such allegations
in issue.
Dated
at EAST LONDON this 18 January 2022.
SIGNED
DEAN WILLIAM FANOE
ACCUSED NO. 10
For and on behalf of
ACCUSED NO. 11
[14]
Section
157 of the CPA reads as follows:
157
Joinder of accused and separation of trials
(1)
An
accused may be joined with any other accused in the same criminal
proceedings at any time before any evidence has been led in
respect
of the charge in question.
(2) Where two or
more persons are charged jointly, whether with the same offence or
with different offences, the court may at any
time during the trial,
upon the application of the prosecutor, or any of the accused, direct
that the trial of any one or more
of the accused shall be held
separately from the trial of the other accused, and the court may
abstain from giving judgment in
respect of any of the accused.
[15]
The
decision as to whether to grant a separation of trials is a
discretionary one.
[4]
A court
may also of its own accord raise the issue of a separation.
[5]
Generally, it is desirable that persons jointly charged with the same
offence or offences should be tried together.
[6]
The principle test in deciding whether to grant an application for
separation is whether it is probable (not merely possible) that
the
applicants will suffer prejudice if a joint trial takes place.
[7]
[16]
The
likelihood of prejudice to the applicants must be weighed against the
likelihood of prejudice to the remaining accused and/or
the
prosecution if trials were to be separated. This requires the
interests of the applicants to be weighed against the wider interests

of society. It is trite that society requires that joint offenders be
tried together, as separate trials invariably lead to a waste
of
State resources. Where there is no real danger of prejudice to the
applicants, there can be no infringement of their constitutional

rights, which infringement would otherwise have been sufficiently
compelling for a court to act against the interests of society.
[8]
[17]
The
following is common cause; alternatively, not seriously disputed:
a.
that
the first applicant was arrested and released on bail on 26 June
2014;
b.
that
during the four year period following upon his arrest, he appeared in
court on 27 occasions at significant costs associated
with his legal
representation;
c.
that
the matter was set down for trial in the magistrates’ court on
two occasions, firstly from 7 to 20 April 2015, and again
from 13 to
17 May 2019;
d.
that
on 10 April 2019 the respondent sought yet another postponement of
the trial,  with representations resulting in the charges
being
withdrawn against the applicants on 13 May 2019;
e.
that
the first applicant was requested to re-appear in court on 19
February 2021 whereafter the matter was postponed on four occasions;
f.
that
an indictment was served on the applicants on 28 July 2021, calling
upon them to appear for trial in the high court on 5 October
2021;
g.
that
since then the matter has been subjected to judicial case flow
management in the high court, with a firm trial date having
been set
for the entire second term of 2022;
h.
that
the respondent relies on the evidence of 54 witnesses of which only
three mention the applicants but do not implicate them
in any
fraudulent scheme;
[9]
i.
that
the applicants have a right to have the trial against them finalised
within a reasonable time as enshrined at item 35(3) of
the
Constitution;
j.
that
the conduct of the applicants’ business has been interrupted by
court appearances and is likely to be interrupted for
an ongoing
period of three months when the trial commences.
[18]
The
applicants have stated on oath that the evidence contained in the
three affidavits which I have mentioned, may be summarised
as
follows:
[10]
a.
Sokwali
alleges that Victory Ticket 750 CC paid the second applicant R1 380
000 for T-shirts. This is common cause.
b.
One
Shezi from Mncwabe T-shirt Manufacturers in Pietermaritzburg confirms
the common cause details around the quotation, order,
invoicing and
payment for the T-shirts by the second applicant.
c.
Mncwabe,
the owner of the T-shirt manufacturing busines also confirms these
common cause facts.
[19]
The
nub of the applicants’ case, as repeated in their plea
explanation at the commencement of this trial, is set forth as

follows in their affidavit in support of the motion for a separation:
‘
It
is the case for the First and Second Applicants that they contracted
with Victory Ticket to supply t-shirts, that they sourced
the
t-shirts, paid the manufacturer from their own funds, supplied the
t-shirts, rendered an invoice to Victory Ticket and received
payment
from Victory Ticket.
They
did this in circumstances of urgency in order to assist their client
BCMM where a successful tenderer to BCMM was not immediately
in a
financial position to pay the manufacturer so as to secure immediate
delivery. Also relevant is that Mantella [the second
applicant]
charged and was paid a substantial profit.
…
In
point of fact, the First and Second Applicants, and certain other
Municipal Officials, were the victims of misrepresentation.’
[20]
In a
nutshell, it is contended on behalf of the applicants that they will
suffer prejudice by sitting through a protracted trial
day in and day
out, wherein which they will not participate due to the fact that
lengthy and detailed evidence will be traversed
which has no bearing
on their alleged guilt. In his affidavit deposed to in support of
this application, the first applicant avers
that he and the second
applicant have a longstanding relationship with BCM, that they have
maintained BCM’s electrical lighting
for some time, and that
they regard BCM as their most important client.
[21]
Whilst
conceding that the case against the applicants is by and large
circumstantial, the respondent, on the other hand, contends
that
there is a real likelihood that the prosecution will suffer
irreparable harm should a separation ensue, because of its “inability

to place the whole picture in one trial before the presiding judge”,
and that “part of that picture includes the response
by the
accused persons to allegations that implicate them as the state’s
case unfolds or during the presentation of the defence
cases.”
According to the respondent, the charges preferred against the
applicants, are “founded” upon the allegations
of fraud
or theft referred to in count 1, as well as the charges in count 2
relating to contraventions of the Municipal Finance
Management Act 56
of 2003 (the MFMA). In the circumstances, so it is contended, it will
be necessary for the respondent to prove
the commission of these
predicate offences. This is particularly so for two reasons: firstly,
to show that the funds received by
the applicants were the proceeds
of unlawful activities, and secondly to enable the trial court to
obtain a full picture of the
fraudulent scheme, its genesis, the
roles played by the various accused, and most importantly, how the
applicants became involved
and what their respective roles were.
[22]
According
to the deponent to the respondent’s opposing affidavit, Sokwali
will testify that there was no business arrangement
or agreement
between him and the applicants, but that he paid the sum of
R1 380 000 to the second applicant in compliance
with an
instruction from accused no. 1. It is anticipated that evidence will
be produced to show that accused no. 1 and the first
applicant
engaged in regular cell phone communication from the day after the
President died, and that three days later, accused
no. 1 informed a
meeting that the first applicant would provide the commemorative
T-shirts.
[23]
It is
further apparent from the indictment and the affidavits, that the
parties are not
ad
idem
as
to who was responsible for initially sourcing the T-shirts. The
respondent says that according to the first applicant, he sourced

them. According to the State, accused number 3 originally obtained a
quote from the manufacturers in KZN. The respondent contends
that the
applicants have not made full disclosure as to who they were
approached by accused no. 1 to become involved, and with
whom they
negotiated the 100 per cent mark-up before re-selling the T-shirts to
BCM’s service provider. According to the
State it was not
Sokwali. The prosecution contends that the aforegoing aspects are
important and best canvassed at a joint trial,
at the very least to
furnish the court with an holistic picture, and to assist the court
to “determine guilt and respective
degrees of blameworthiness”.
[24]
It is
the respondent’s contention that the argument that there is no
connection in time, space or fact to justify a joint
trial is wrong
and flies in the face of the available evidence, in that the
different counts in the indictment and the roles played
by the
various accused persons are interwoven. It is alleged that the
evidence required to prove the commission of the offences
referred to
in the first two counts of the indictment (which are charges of fraud
and MFMA contraventions preferred against other
accused) are highly
relevant in order to prove the guilt of the applicants on count 4.
Likewise, so it is submitted, the evidence
against the applicants
will be highly relevant for the determination of the various roles
played by some of the accused, in particular,
accused nos 1 and 3.
[25]
It is
trite that when consideration is given to an application for
separation, the point of departure is that multiple trials ought
to
be avoided where possible. As succinctly stated by the learned author
Kriegler:
‘
Die
vertrekpunt is dat veelvuldigheid van verrigtinge waar moontlik vermy
word. Duplikasie veroorsaak verkwisting van tyd, talente
en geld –
tot nadeel van die gemeenskap. Dit is bowendien gewoonlik in belang
van die regspleging dat diegene wat op dieselfde
aanklag tereg staan
saam verhoor word (
Bagas
441F).
Die wetgewer het ook aangedui dat deelnemers, begunstigers en helers
saam aangekla kan word (artikel 155) en selfs persone
wat op
dieselfde tyd en plek oortree het (artikel 156). Daar moet ook in
gedagte gehou word dat dit die aaanklaer se reg as
dominus
litis
is
om sy klagstaat na goeddunke te formuleer. Die Staat moet nie
gedwarsboom word in die aanbieding van sy saak nie (
R
v Kritzinger
1952
4 SA 651
(W) 654). Wie dan skeiding aanvra, doen dit teen die
voorgaande agtergrond.’
[11]
[26]
The
primary consideration is prejudice. The prejudice which the
applicants will suffer should separation be refused, is weighed

against prejudice to other parties should it be granted. At the end
of the day, the question to be answered is whether separation
will be
in the interests of justice.
[12]
[27]
The
applicants have made much of the delay which preceded the
commencement of this trial. I have no doubt that it has been a thorn

in the flesh to many. They also anticipate further delays, but this
in itself is not a reason to grant a separation. The other
12 accused
are in the same boat. It has also been contended that the State’s
case against the applicants is not strong. This
too, is not a ground
for a separation. It may have been a ground in the past for
representations to have the charges withdrawn.
It may be a good
ground in the future to apply for a discharge at the close of the
State’s case. It may be the
causa
for
civil litigation at some stage, but a ground for separation it is
not. The stigma associated with being criminally charged is
also not
a reason to insist on being differently treated to the other 12
accused.  All the accused are facing the same dilemma
to a
greater or lesser extent. If at the end of the day, it turns out that
the applicants’ exposure to the criminal justice
system and the
media was a malicious exercise, there will be avenues available to
them to deal with such an eventuality.
[28]
To my
mind, perhaps the most meritorious reason to argue for a separation,
is the probability of serious financial prejudice to
the applicants,
both with respect to the illustrated potential  costs associated
with the lengthy employment of both senior
and junior counsel (which
the applicants are entitled to do), and the prospective dire
consequences of a lengthy absence from running
a not insignificant
community serving business concern, with the real prospect  of
the permanent loss of valued clients and
the harm associated
therewith.
[29]
It is
contended that the first applicant (due to the fact that he is not,
in a criminal forum, entitled to willy-nilly absent himself
from the
trial simply because he has no interest in the proceedings), will
have to sit in this court day in and day out as part
of a pointless
exercise, and will be constrained to pay his legal team to do
likewise. Naturally, this becomes a costly and time-consuming

exercise for the applicants and their legal representatives. On the
other hand the possibility that the applicants’ co-accused
may
implicate them in their absence if a separation is granted, or indeed
vice
versa
,
is there, however remote.
[13]
Because of what I am about to say, it is not necessary for me to
address these all too commonly raised concerns.
[30]
Counsel
for the respondent has prevailed upon me to give due consideration to
distinguishing what is referred to as a POCA matter,
from precedents
in other matters where applications for separation have succeeded,
based on the potential for prejudice. By way
of example, in
S
v Naidoo
[14]
,
it
was held that where there is no connection in time, space or fact
between the charges facing two accused, it is indeed irregular
and
impermissible, that they be tried together in respect of offences in
which each is not implicated.
[15]
The reason for this, so it was held, lies in the potential for
prejudice, in that an accused could spend weeks in court while
evidence affecting his or her co-accused was dealt with, which had
nothing whatsoever to do with the objecting accused and the charges

which he/she was facing, merely because “on other counts he was
charged with an offence in which his co-accused was connected.
This
the
Criminal Procedure Act does
not permit.”
[16]
Blieden J held however, that the situation is different where the
State alleges that the various accused (all in different capacities)

were involved in an illegal enterprise in contravention of
section
2(1)
of POCA (racketeering), where the ultimate purpose of the
individual accused’s offences are to benefit a criminal
enterprise
formed by all the accused. Accordingly, there was no
possibility of any accused running the risk of being in a situation
where
any evidence led would not, in some way or another, be relevant
to the case he has to meet.
[31]
I am
in full agreement with the respondent’s counsel. POCA cases,
particularly those relating to racketeering enterprises,
are
generally distinguishable in applications such as these.  That
however, is not the end of the matter. Scenarios under
the auspices
of POCA are also distinguishable
inter
se
,
and each case must be considered on its own merits. So it is then,
that when there are multiple POCA accused and one of them complains

that he has to sit through a whole lot of evidence which is of no
concern to him, the point of departure would be for the court
to give
careful consideration to the nature and extent of the charges, and
the evidence which the State seeks to present to pursue
a conviction.
[32]
In
Naidoo
,
all the accused, including the appellant, were
charged
with a contravention of
s 2(1)(e)
of POCA. Under that subsection,
terms such as “pattern of racketeering activity” and
“enterprise” are used.
“Pattern of
racketeering activity” is defined as the planned, ongoing,
continuous or repeated participation or
involvement in any offence
referred to in schedule 1, and includes at least two offences
referred to in schedule 1, of which one
occurred after POCA
commenced, and the last occurred within ten years after the
commission of the prior offence referred to in
the schedule.
“Enterprise” includes any individual, partnership,
corporation, association or other juristic person
or legal entity,
and any union or group of individuals associated in fact. Simply put,
the ultimate charge which all the accused
in
Naidoo
faced
was one of racketeering and being part of a
conspiracy
to
achieve a criminal result.
[17]
As stated by Blieden J:
‘
For
each of the main counts, and the alternatives thereto, there is only
one set of facts which might result in a conviction on
the main
counts or on one of the alternatives. What is clear is that in
relation to each count, or alternative thereto, the evidence
relied
upon by the prosecution relates to the ongoing, continuing or
repeated participation of each of the accused, and in particular

accused 1 and the appellant, in the illegal rackets in which they are
all participants. Despite the fact that the nature of the
part played
by each accused could be different from that of another accused, the
evidence would remain the same to prove
conspiracy
[my
emphasis] between them ….
Bearing
the above considerations in mind, there is no possibility that any of
the accused runs the risk of being in a situation
that any evidence
led will not be relevant to the case he has to meet. Each of the
accused is being tried for the same offence.
The fact that accused 1
alone is charged with the contravention of certain sections of POCA
in the alternative, does not detract
from the fact that the main
charge against
each
and every one of them
[my
emphasis] is that they are guilty of contravening
s 2(1)(e)
of
POCA.’
[18]
[33]
Thus,
the evidence on which the State will have to rely when proving a
contravention of
s 2(1)(e)
of POCA (as opposed to proving
contraventions of setions 4, 5 and 6 with which the applicants before
me have been charged), was
defined by the SCA in
S
v Eyssen
[19]
,
where the following is stated:
‘…
It
is a requirement of the subsections in question [dealing with
racketeering] that the accused … must participate in the

enterprise’s affairs. It will therefore be important to
identify what those affairs are. It will also be important for the

State to establish that any particular criminal act relied upon,
constituted participation in such affairs … The participation

must be by way of ongoing, continuous or repeated participation or
involvement. …
Ongoing
conveys the idea of not as yet completed. Continuous (as opposed to
continual) means uninterrupted in time or sequence.
“Repeated”
means recurring.’
[20]
32.Blieden
J, in commenting on
Eyssen
,
said the following:
‘ …
[It]
is necessary for the State to prove all the elements in the
common-law offences which make up the illegal enterprise, which

comprises the main charge against them, before each can be convicted
on count 1. In the circumstances there can be no question
of them
claiming that they are not being charged with the ‘same
offence’. The greater offence, of necessity, includes
the
lesser. …
Counsel
[for the State] further argued that proving evidence relating to the
trap, and the taped conversation, will be akin to the
State proving a
previous conviction which is tendered to prove mens rea, and is
permissible in terms of
s 197(d)
of the
Criminal Procedure Act, as
well as
s 22
[this should read
s 2(2)]
of POCA [relevant to
racketeering charges only].’
[21]
[34]
Because
of the mischief which POCA seeks to prevent and the ongoing
challenges in attempting to do so, s 2(2) of the Act allows
the
prosecution to lead evidence, when dealing with offences relating to
racketeering activities, which may otherwise be inadmissible
at a
criminal trial. Thus the court may hear evidence, including evidence
with regard to hearsay, similar facts or previous convictions

(relating to racketeering activities only) provided that such
evidence does not render a trial unfair.
[35]
What
lies at the very heart of racketeering offences, as opposed to
offences relating to proceeds of unlawful activities (which
is what
the accused in this trial have been charged with), is that once it
has been established that two or more accused persons
are jointly
participating or associating themselves (by way of a pattern of
ongoing conduct) in the unlawful affairs of an enterprise,
evidence
about the enterprise or scheme itself (as referred to by counsel for
the respondent as the predicate offence)  and
the individual
participation of the accused, will be relevant and admissible against
all of them, and the prosecution will also
then have
carte
blanche
to
introduce all sorts of information which would not otherwise be
admissible at a criminal trial.
[36]
In my
view however, before this can happen, the prosecution must at the
very least lay a foundation for the introduction of such
evidence,
based on the doctrine of common purpose. In
Maringa
and Another v The State
[22]
,
the
appellants appealed against a finding of the court
a
quo,
which
finding was that they had not been misjoined with their co-accused on
altogether 399 counts of fraud, theft, forgery, uttering
and
corruption. In dismissing the appeal, and in accepting the
respondent’s contention that all the accused acted in the

execution of a common purpose to commit fraud (the predicate offence)
as
stated in the charge sheet,
Potterill
J remarked as follows:
‘
From
the charge sheet as well as the summary of substantial facts it is
clear that every individual fulfilled a certain role in
completing
the common purpose. The state conceded that there is no evidence that
the appellants were part of the corruption allegedly
committed, but
the corruption was still a vital requirement to fulfil the common
purpose to defraud. It was also argued that …
the prejudice to
the state is that the matter will be presented on a piece meal basis
before different courts and the state will
never be in a position to
put the complete picture before a particular court. This was
submitted will lead to an injustice. It
was argued that the
magistrate exercised his discretion judicially and correctly in
referring to the matter of
S
v Naidoo (supra).
Although
in the
Naidoo
matter
the charges all related to POCA, in the present matter the state
alleges that the appellants committed the offences of
fraud
with a common purpose
[emphasis
added]. The evidence of the witnesses that will testify on the
forgery, uttering and corruption charges will at the same
time also
prove the various allegations made in the fraud charges against the
two appellants.
…
In
casu
the
appellants are charged with their co-accused on not all of the
counts, with the corruption charges, being the biggest bone of

contention. It was argued that because they are not charged with
those counts there is non-compliance with section 156 in that
those
charges cannot be linked in time and place to the other counts and
therefore there is a misjoinder. Section 156 cannot be
interpreted so
restrictively. Section 156 goes further and makes a joint trial
possible even when the charges do not entirely flow
from the same
facts, but there is nevertheless evidence which implicates more than
one of the accused, although not all at the
same time;
there
need however to be a common purpose.
…
The
corruption charges form part of a chronological link without which a
court will not be privy to a full picture of the common
purpose. …
Section 156 goes further than section 155 and makes a joint trial
possible also when the charges do not entirely
flow from the same
facts but there is nevertheless evidence which in the view of the
prosecutor implicates more than one of the
accused although not all
at the same time.
The
test is that there need be a common purpose
[my
emphasis].
In
Hiemstra’s
Criminal
Procedure
on
page 22 – 24 the writer comments as follows:
“
An in depth study of
joinder appears in
S v
Ramgobin
1986 (1) SA
68
(N). It is confirmed that it is permissible to charge all the
accused jointly with a series of acts, committed by different persons

at different times over a period of time in
fulfilment
of an all-embracing plan
[my
emphasis], as one offence, even though each act could found a
separate charge.”
In
the Naidoo matter the court did not have to rely on the requisites of
section 156 because each and every one of the accused were
charged
with a main charge of contravention of section 2(1)(e) of POCA. …
Despite the fact that the nature of the part played
by each accused
could be different from that of another accused, the evidence would
remain the same to prove conspiracy between
them.
…
When
a group of people allegedly have a common purpose to achieve an
unlawful goal and each has a different role to play in achieving
this
goal it is inevitable that due to the separate acts of the accused
some evidence would not pertain to each and every accused
before a
court.’
[37]
So
then, in
S
v Imador
[23]
for
example  (being another POCA matter on which the respondent
relies), and where the appellant was similarly charged with
money
laundering, paragraph (15) of the preamble to the charge sheet made
the following very clear, and in my view is a necessary
averment (to
bring the case within the auspices of one where a separation would be
prejudicial and unjust), which is lacking in
the matter before me. It
says this:
‘
The
state alleges that the accused
actively
acted in the furtherance of a common purpose
[my emphasis] in that he was actively involved in the conspiracy to
obtain money from the complainant.’
[38]
This
brings me to an examination of those relevant portions of the 57 page
indictment where the applicants are mentioned. The indictment

comprises a list of the 27 charges and alternatives to these, a
preamble dealing with the legal framework for the procurement of

goods and services by a municipality, a description of the 14 accused
and their respective roles, what the alleged scheme entailed,
a
summary of substantial facts, and a list of the names of 54
witnesses.
[39]
For
the sake of completeness, I intend reproducing each and every part of
this document where mention is made of the alleged role(s)
played by
the applicants. The applicants are mentioned for the first time at
paras 16 – 18 of the preamble, in the following
terms:
‘
Accused
10 was at all times relevant to this indictment, a businessman and a
member of accused 11 as well as a signatory to the
ABSA Bank account
number …, held in the name of Accused 11; and
Accused
11 was at all times relevant to the indictment, a Close Corporation
registered in terms of the
Close Corporations Act, 69 of 1984
…
and therefore a Corporate Body as contemplated in
Section 332
of the
Criminal Procedure Act, 51 of 1977
; and
All
acts performed, and omissions of acts which ought to have been but
was [
sic
]
not performed, as set out in the charges listed hereunder against
Accused 11, were performed and/or omitted by or on instruction
or
with permission … given by Accused 10, a member of Accused 11,
in the exercise of his powers or in the performance of
his duties as
such a member, or in furthering, or in endeavouring to further the
interests of Accused 11.’
[40]
These
appear to be necessary averments when a close corporation is charged
and are a formality on which nothing turns. I now turn
to the roles
of the respective accused as set forth in the indictment. This
portion of the indictment begins with an averment that
the day after
the President died, national treasury authorised municipalities to
use municipal funds for transportation services
and venue costs
associated with memorial services. It is alleged that the emailed
instruction to the municipalities prohibited
them from spending any
money on catering, tents/marquees and commemorative advertising.
[41]
As I
understand the applicants’ plea explanation, they bear no
knowledge of this instruction, and accordingly cannot dispute
it. In
the premises it is highly unlikely, should a separation be granted,
that the prosecution will be required to lead evidence
which was
intended for the BCM accused, and not for the applicants,
particularly in the absence of an allegation of common purpose.
[42]
It is
thereafter alleged that the first five accused used their positions
and influence to set in motion a scheme designed to defraud
the
municipality and to misappropriate for personal and political
interests, BCM funds earmarked for the transport of mourners.
Once
again, the applicants have made it quite clear that they were not
party to this, that they bear no knowledge of the scheme
to defraud,
and that they cannot dispute it.
[43]
It is
then averred that accused nos 6 and 7 (BCM officials) made common
purpose with the intention to defraud and manipulate BCM’s

procurement processes as part of this fraudulent scheme. No mention
is made of the applicants, either directly or indirectly.
[44]
Thereafter
accused nos 8 and 9 (one Ms Vazi and a close corporation which she
represented which appears to provide accommodation)
are drawn in as
beneficiaries who were present during the planning and at information
sharing meetings and were aware of the unlawful
activities of all the
other accused (the affidavit allegedly deposed to by Sokwali and
annexed to the application papers speaks
to this).
[45]
The
roles played by the applicants are described at paragraph 28 of the
preamble only. It reads thus:
‘
Accused
10 and 11 were also beneficiaries of the scheme who by necessary
inference knew that the procurement of Accused 11’s
services
were not lawful and regular and knew or ought to have known that the
funds paid to Accused 11 by Victory Ticket 750 CC
were the proceeds
of unlawful activities.’
[46]
Thereafter
accused nos 12 and 13 (one Ms Mati and a close corporation she
represented) are described in a similar vein, ending off
with the
participation of accused no. 14 (who was an employee of BCM), and
traversing certain internal procedures and the payment
of funds,
which is unrelated to the applicants.
[47]
Turning
to what the scheme entailed, the indictment describes how accused
persons, other than the applicants, planned how to misappropriate

funds made available for travelling, and to recruit a willing service
provider (who, according to Sokwali’s alleged affidavit,
was
Sokwali himself and his close corporation). The applicants are
excluded from any meetings or any planning to this end. According
to
Sokwali’s affidavit, accused 1 merely announced at a meeting
that accused 10 would supply T-shirts and would invoice Sokwali
and
receive payment from him. This too, the applicants do not dispute.
More particularly, by virtue of what is contained in their
affidavits
(to which they appear to have annexed everything they could find in
the State’s discovery relating to them), it
seems that there is
little if anything which is not common cause between them and the
State. They have also gone to some lengths
to furnish a prima facie
innocent explanation for why they bought the T-shirts and resold them
at a profit to Victory Ticket.
[48]
The
summary of substantial facts too, does not take the State’s
case any further on the issue of common purpose.  Insofar
as the
prosecution is of the view that it would be prudent to keep accused
nos 1 and 3 in the same trial as the applicants (because
of cell
phone records between accused no 1 and the first applicant, and
because
ex
facie
a
document annexed to the applicants’ plea explanation it appears
to have been accused 3 who obtained a quote from the T-shirt

manufacturer who subsequently invoiced the applicants instead), this
court may have viewed matters differently if it was the State’s

case that the applicants had, in any manner whatsoever, made common
purpose with these accused, or that the applicants were to
a greater
or lesser degree involved in the scheme in connection with which the
remaining accused have been charged. This however
is not so. On the
contrary, count 4 specifically excludes the applicants from any
common purpose to commit fraud or any statutory
contraventions under
the MFMA, and it also excludes them, under that very money laundering
charge, from having made common purpose
with any of their co-accused.
[49]
The
applicants in any event do not dispute that the predicate offences
took place. They do not deny that the payment made by Victory
Ticket
was made with proceeds of unlawful activities. They simply deny
knowledge of these offences. It is contended on their behalf
(in the
light of that which is common cause and that which has been admitted)
that any attempt on the State’s part to prove
knowledge that
the payment by Victory Ticket was made with the proceeds of unlawful
activities, in any event does not require an
assessment of all the
evidence which the State intends leading against the other accused. I
agree. It is a circumscribed issue.
[50]
The
applicants have also not denied that there was regular cellular phone
activity between accused 1 and the first applicant. According
to the
applicants BCM was and still is their biggest client. The applicants
undertake reticulation and electricity supply maintenance
to 66 000
households and 30 000 street lamps in Mdantsane. They do repairs
to the ABSA rugby stadium floodlights. According
to the first
applicant he has known accused no.1 for more than 14 years. During
the period in question accused no. 1 was also the
president of the
Border Rugby Union. They spoke regularly on the phone about
electrical outages at Mdantsane and repairs to the
ABSA stadium flood
lights. During the relevant period they also spoke on the phone about
the supply of T-shirts to BCM. This is
admitted.
[51]
In the
final analysis, for the applicants to remain in a joint trial so that
the court can determine the roles played by various
other co-accused
and the circumstances surrounding the commission of independent
offences, in order to holistically consider respective
degrees of
blameworthiness, when there are no allegations of common purpose,
even remotely, would be far more prejudicial to the
applicants, than
any prejudice which the respondent may suffer through calling (on my
understanding) a bare minimum number of witnesses
at a separate
trial.  It would also not be in the interests of justice to
detain the applicants any further in what is anticipated
to be a very
long trial.
[52]
The
application in terms of
s 157
of Act 51 of 1977, for the trial of
accused nos 10 and 11 (Mr D. Fanoe and Mantella Trading 522 CC) to be
separated from the trial
of their co-accused is granted, and the
trials are so separated.
____________________________
I.T. STRETCH
JUDGE OF THE HIGH
COURT
Date
of application:
20 January 2022
Date
of judgment:
28 February 2022
Counsel
for the applicant: R. Quinn SC and J. Bester
Instructed
by Andre Schoombee Attorneys
EAST
LONDON
Counsel
for the respondent: U. De Klerk
Instructed
by the National Prosecuting Authority
EAST
LONDON
[1]
The applicants in their application papers and heads of argument
(which were prepared before they pleaded in the common but
mistakenly held belief that they could launch this application
before the commencement of the trial) seem to suggest that they
are
only facing the two alternative charges to count 4. This is not
correct. The applicants have been charged with the main count
as
well, to which they pleaded not guilty and which they addressed in
their plea explanation.
[2]
The statutory penalty for contravening each of sections 4, 5 or 6 of
POCA is a fine of R100 million or imprisonment not exceeding
30
years.
[3]
This reproduction of the plea explanation is verbatim and no changes
have been made in respect of spelling, grammar, syntax,
punctuation
and the like.
[4]
R v Bagas
1952 (1) SA 437 (A)
[5]
S v Ndwandwe
1970 (4) SA 502 (N)
[6]
Bagas
above at 441
[7]
R v Nzuza & another
1952 (4) SA 376
(A);
R v McMillan
& another
1958 (3) SA 800
(E);
S v Witbooi & others
1994 (1) SACR 44 (Ck)
[8]
S v Shuma
1994 (2) SACR 486
(E),
1994 (4) SA 583
(E);
S v
Somciza
1990 (1) SA 361
(A) at 367E-F
[9]
The applicants have annexed to their application papers, all the
affidavits deposed to by these three witnesses.
[10]
This has not been challenged and it is not suggested that there are
any other witnesses who will testify against the applicants.
It
seems that with regard to the applicants, the court will, inter
alia, be required to make inferences based largely on circumstantial

evidence.
[11]
Hiemstra: Suid-Afrikaanse Strafproses (5ed by J. Kriegler)
Butterworths 1993 at page 405
et seq
[12]
Somciza
367E-F
[13]
See
R v Solomon
1934 CPD 94
[14]
2009 (2) SACR 674 (GSJ)
[15]
See also
S v Chawe en n ander
1970 (2) SA 414
(NC);
S v
Ramgobin and others
1986 (1) SA 68
(N);
S v Stellios
Orphanou and six others
(unreported judgment of Leveson J in the
WLD delivered on 18 October 1985)
[16]
Naidoo
para. 12 and ss 155 and 156 of the CPA.
[17]
Naidoo
para. 17
[18]
Naidoo
paras 18 and 20
[19]
2009 (1) SACR 406
SCA
[20]
Eyssen
paras 7 - 9
[21]
Naidoo
para. 25
[22]
Unreported judgment of Potterill J delivered in the North Gauteng
High Court, Pretoria on 17 September 2013 under case no. A127/2013
[23]
2014 (2) SACR 411
(WCC)