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[2021] ZAGPPHC 136
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Naicker v S (A388/2019) [2021] ZAGPPHC 136 (22 February 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: RC2/79/17
APPEAL
NO: A388/2019
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
ASHLEY
NAICKER
Appellant
and
THE
STATE
Respondent
JUDGMENT
WANLESS
AJ (KHWINANA AJ concurring)
Introduction
[1]
In this matter one ASHLEY NAICKER
(“the
Appellant”)
,
an adult male, was charged in the Regional Court for the Regional
Division of Gauteng (held at Springs) on one count of Fraud
and one
count of Defeating the Administration of Justice. The Appellant was
found guilty of both counts and sentenced to an effective
term of
seven (7) years’ imprisonment.
[2]
An application for leave to appeal in respect of his convictions and
sentences was
dismissed by the court
a
quo
. Thereafter,
the Appellant was granted leave by this Court to appeal against both
his convictions and sentences.
Ad
Convictions
[3]
In respect of the count of Fraud the State
(‘the
Respondent”)
alleged that the Appellant unlawfully, falsely and with the intent to
defraud and to the prejudice or potential prejudice of Hollard
Insurance
(“the
insurer”)
gave out and pretended to the insurer that on the 19
th
of October 2016 he had been robbed of his motor vehicle insured with
the insurer whereas he had in fact caused the said motor vehicle
to
be set alight.
[4]
With regard to the count of Defeating the Administration of Justice,
it was alleged
by the Respondent that the Appellant unlawfully and
with intent to defeat or obstruct the course of justice, instituted a
false
charge of robbery, alleging that he had been robbed of his
motor vehicle whereas he had not.
[5]
The Respondent placed the
viva
voce
evidence of
six (6) witnesses before the court
a
quo
, namely
SIBUSISO SYDNEY NKOSI
(“Nkosi”)
;
MKHULULEKO RIVONIA KALI
(“Kali”)
;
WARRANT OFFICER PATRICK MPOFU
(“Mpofu”)
;
ERIC KOPANSKI
(“Kopanski”)
;
MARIA PRETORIUS
(“Pretorius”)
and SERGEANT KGOTSO MATTHEWS KEKANA
(“Kekana”)
.
The Appellant testified in his defence and called one (1)
witness, namely JOSHUA NXUMALO
(“Nxumalo”).
This judgment will not be burdened unnecessarily by setting out the
evidence of these witnesses in detail. Rather, same will be
referred
to , where applicable, later in this judgment.
Common
cause facts
[6]
The following facts were common cause at the trial, namely:-
6.1
the Appellant and Nkosi worked together. In this regard the Appellant
was Nkosi’s
supervisor whilst Nkosi was contracted to the
Municipality.
6.2
Nkosi was employed by Gohitile Projects who terminated his services
due to an invoice dispute;
6.3
the Appellant facilitated a meeting with the owner of Gohitile
Projects, one MSOMI (“Msomi”)
to discuss the possible
reappointment of Nkosi. However, this was not successful;
6.4
the Appellant did not support Nkosi’s reappointment by Gohitile
Projects and Nkosi
was aware of this;
6.5
during the period January 2017 to April 2018, Nkosi was then employed
by Yande Engineering.
The Appellant was tasked, by the Municipality
(his employer) to investigate Yande Engineering who were, as a result
thereof, suspended
as a service provider of the Municipality;
6.6
the aforesaid suspension of Yande Engineering had a further negative
impact on Nkosi’s
personal finances;
6.7
the Appellant was the owner of a Volvo V40 motor vehicle bearing
registration letter and
numbers FB 98 GP
(“the motor
vehicle”)
which was insured by the insurer. As a result of
the loss of the motor vehicle he was paid out by the insurer;
6.8
an incident occurred on the 19
th
of October 2016 which
gave rise to the loss of the motor vehicle and the Appellant
receiving the aforementioned payment from the
insurer;
6.9
the movement of the motor vehicle on the 19
th
of October
2016 is correctly recorded and reflected in the tracking report which
was admitted into evidence
(Exhibit “B”)
;
6.10 on
the 19
th
of October 2016, after having allegedly been
robbed of his motor vehicle, the Appellant was assisted and given a
lift by Nxumalo;
6.11
the Appellant reported the alleged robbery at Brakpan Police Station;
6.12
the Appellant and Nkosi were known to each other prior to the 19
th
of October 2016 as they shared a professional relationship which was
impacted by certain work-related disputes;
6.13
Nkosi and Kali were, as at 19 October 2016, friends and at the time
of the trial remained friends; and
6.14
the burnt motor vehicle was found at Withok Estates, Brakpan.
Matters
in dispute
[7]
At the trial the court
a
quo
was called upon
to decide:
7.1
whether the Appellant committed fraud;
7.2
whether the Appellant committed an act of defeating the
administration of justice;
7.3
whether Nkosi and Kali (who testified on behalf of the Respondent)
burnt the motor vehicle
on the Appellant’s instructions;
7.4
whether Nkosi and Kali falsely implicated the Appellant (as alleged
by the Appellant); and
7.5
whether the Appellant was robbed as he alleged.
The
law
[8]
It is trite that in order for the court
a
quo
to find the
Appellant guilty, it must be satisfied that the Respondent has
discharged the onus incumbent upon it to prove, beyond
reasonable
doubt, the guilt of the Appellant.
[9]
It is also trite that there was no obligation upon the Appellant to
convince the lower
court that he was innocent. If his version was
reasonably possibly true, he was entitled to an acquittal even though
his explanation
may be improbable. The court
a
quo
was not
entitled to convict unless it was satisfied that not only was the
explanation improbable but that it was false beyond all
reasonable
doubt
(R v Dif
ford
1937 AD 370).
The
merits
[10]
In summary, it was the Respondent’s case that the Appellant had
elicited the assistance
of Nkosi and Kali to burn the motor vehicle
in order that he could institute a fraudulent claim with the insurer.
In his defence
the Appellant alleged that he was robbed of the motor
vehicle and therefore his claim with the insurer was a legitimate
one. As
part of his defence, it was alleged by the Appellant that
Nkosi and Kali (both state witnesses) had joined forces to conspire
against
him.
[11]
During the course of argument before this court, Counsel for the
Respondent conceded (correctly)
that the contradictions in the
evidence of Nkosi and Kali and the contradictions between the
evidence of those witnesses
when compared to one another, as relied
upon by the Appellant’s Counsel and as set out in the
Appellant’s Heads of
Argument, were correct. In the premises,
this court may accept that the contradictions in the evidence, as set
out in this judgment,
were indeed contradictions which arose in the
court
a quo
and which are reflected in the record of the proceedings which took
place before the trial court.
Contradictions
in the evidence of Nkosi
[12]
During cross-examination Nkosi testified that the Appellant contacted
him for the first time
regarding this matter during the second week
of September 2016 at about 12h00. This witness conceded that in his
affidavit he had
stated that the Appellant contacted him in the third
week of September 2016 at 14h00.
[13]
Nkosi testified that Kali would be paid R500.00 by the Appellant to
torch the motor vehicle and
would receive a further R3 000.00 upon
the insurer paying out. He further testified that he (Nkosi) would
receive an amount of
R5 000.00 from the Appellant for his efforts in
ensuring that the motor vehicle was burnt. However, in his affidavit,
Nkosi made
no mention of the R500.00 allegedly payable to Kali or the
R300.00 allegedly given to him on the 19
th
of October 2016. In his affidavit he stated that R100.00 was
allegedly given to him. This witness was unable to provide a
plausible
explanation pertaining to the said contradictions or why a
portion of the evidence he testified to in the court
a
quo
was not
included in the affidavit which he deposed to more than a year before
he testified at the trial. In this regard, it is
clear that the
details of the matter would have been easier to recollect when he
deposed to the affidavit.
[14]
This witness further testified in the court
a
quo
that the
Appellant had called him to his office on Wednesday the 19
th
of October 2016 to advise him that the motor vehicle would be burnt
that day. This is different to what he stated in his affidavit
where
he said that the Appellant had met with him prior to the 19
th
of October 2016. A further contradiction arose when he testified that
the Appellant had in fact met with him on the Monday and
told him
that the fake hijacking and burning of the motor vehicle would take
place the following Wednesday (a week after the 19
th
of October 2016). In the premises, there were material
contradictions in respect of his evidence in chief; his
testimony when he was cross-examined and the contents of his
affidavit. In addition thereto, he also testified at one stage that
the Appellant informed him on a Tuesday that the incident would take
place on the Wednesday.
[15]
Nkosi testified that on the day in question he received R300.00 from
the Appellant but in his
affidavit he stated he had received R100.00.
Where a person had agreed to be part of a serious crime, it is
improbable that such
person would not remember precisely the amount
of money he was paid as a reward for his participation.
[16]
When he testified before the court
a
quo
, Nkosi stated
that he had provided the Appellant with a description of the clothing
that Kali would be wearing in order that the
Appellant could identify
Kali. No mention was made, at all, of this important fact when he
deposed to his affidavit.
[17]
In his testimony, Nkosi stated that the Appellant drove past Kali;
stopped and reversed; then
reversed again before picking Kali up.
Whilst this was important enough to form part of his testimony, no
mention of this sequence
of events was made in his affidavit.
[18]
Importantly, Nkosi testified that he never contacted the Appellant on
the Appellant’s cellular
telephone regarding the matter.
However, when cross-examined, he stated that he had called the
Appellant’s cellular telephone
to alert the Appellant of the
arrival of himself and Kali.
[19]
In addition to the aforegoing contradictions, Nkosi contradicted the
objective evidence of the
tracking report. This objective and common
cause evidence is in stark contradiction to both the
viva
voce
testimony of
Nkosi in the court
a
quo
and the
contents of his affidavit. Nkosi testified that he saw the Appellant
driving along Plantation Road in Springs. According
to this state
witness the Appellant stopped the motor vehicle; reversed and picked
up Kali. In contrast thereto the tracking report
indicates that the
Appellant drove along Plantation Road, turned left into Main Avenue,
then right into Broad Avenue, before turning
right again into Main
Avenue. It is also important to note, at this stage, that not only do
the contents of the tracking report
materially contradict the
testimony of both Nkosi and Kali but corroborate the version of the
Appellant as placed before the court
a
quo
.
Contradictions
in the evidence of Kali
[20]
Whilst Kali testified that he would be paid R3 000.00 by the
Appellant after the alleged incident,
no mention whatsoever is made
of this important fact in his affidavit.
[21]
When he testified in the court
a
quo
, Kali stated
that he had been approached by Nkosi in respect of the matter during
September 2016. However, in his affidavit, Kali
states that this
approach took place in October 2016.
[22]
In his testimony Kali told the court
a
quo
that he had
been approached by Nkosi on two separate occasions. In his affidavit
he stated that he had been approached by Nkosi
only once.
[23]
Kali originally testified that the Appellant came from Main Avenue.
However, he then changed
his evidence and testified that he had not
seen where the Appellant had come from.
[24]
Kali testified that he had never met the Appellant before the 19
th
of September 2016. However, he later testified that when the motor
vehicle stopped he saw it was the Appellant.
[25]
Importantly, when this witness testified he stated he had dropped the
Appellant off on Heidelberg
Road. However, in his affidavit he stated
he had dropped the Appellant off in Geluksdal.
Contradictions
between the evidence of Kali and Nkosi
[26]
Kali testified that he met Nkosi on the gravel road leading to the
plot of land where the motor
vehicle had been burnt. Nkosi testified
that he had waited for Kali and when Kali did not arrive, he had
driven to the plot by
himself.
[27]
Kali testified that he and Nkosi had agreed to meet at the gravel
road. Nkosi testified that
they had agreed to meet at an exact
location.
[28]
Nkosi testified that he had approached Kali and asked him if he knew
someone who could assist.
He further testified that Kali could not
find anyone. Kali however testified that Nkosi had approached him
during September 2016
and asked him whether he wanted to make some
money on the side. Kali never testified at all about being asked by
Nkosi to recruit
a person to assist.
[29]
Importantly, Kali testified that no arrangement had been made as to
the clothing he had to wear.
In direct contrast thereto, Nkosi told
the court
a quo
that he had arranged with Kali that Kali was to wear a black hoody.
[30]
Nkosi testified that on the Monday he and Kali went to look for a
spot to burn the motor vehicle.
Later however, he testified that
during his second visit to Kali in respect of the plan, they had
agreed to go and search for a
spot to burn the motor vehicle the next
day, which was a Saturday. Kali testified that the day they went
searching for a spot to
burn the motor vehicle was the day prior to
the incident. This would have been a Tuesday. In the premises, not
only did Nkosi contradict
his own evidence but there was also a
material contradiction between the evidence of Nkosi and Kali in
respect of when the two
witnesses went to search for a spot to burn
the motor vehicle.
[31]
Nkosi testified that he had waited for Kali at a certain corner of
the intersection at Geluksdal Road. After a while he drove
to the
agreed point. Kali testified that he found Nkosi at a certain point.
Nkosi flicked his lights that Kali should follow him
which he did to
the “spot”
[32]
Nkosi testified that he had poured the petrol into the motor vehicle.
Kali testified that both he and Nkosi poured the petrol
into the
motor vehicle. Furthermore, when Nkosi gave evidence he told the
court
a quo
that when he set the motor vehicle alight Kali was in the bakkie. In
stark contrast thereto, Kali testified that he was the one
who set
the motor vehicle alight.
[33]
Nkosi testified that the police first found Kali and then came to
him. Upon approaching Nkosi, Kali was already in the vehicle.
Kali’s
evidence was contrary to that of Nkosi in this regard.
[34]
Like Nkosi the evidence of Kali materially contradicted the objective
evidence of the tracking report. Kali testified that
he drove along
Cemetery Road to an intersection or a four way stop. He then turned
left into the gravel road where Nkosi was waiting
for him. The
inspection
in loco
held during the
trial revealed that no gravel road exists at that point, only a
tarred road.
[35]
Kali’s evidence with regard to the route that was followed and
the place where the motor vehicle was allegedly burnt,
materially
contradicted his earlier evidence; the tracking report and his
affidavit. Not only did he describe different places
in his testimony
and his affidavit but it transpired that these places were in fact a
distance apart.
[36]
Further, Kali’s evidence contradicted that of Nkosi in respect
of both the route that was followed and the point where
the motor
vehicle was allegedly burnt.
[37]
Kali also testified that he dropped off the Appellant just after the
Geluksdal robot. This is in direct contrast to the tracking
report.
[38]
Both Nkosi and Kali testified that the motor vehicle was burnt before
19h00 whilst the tracking report reflected that the motor
vehicle was
still moving at 19h20.
The evidence of Mpofu
[39]
This police officer became involved in the investigations pertaining
to this matter upon certain
information being provided to him by an
informer. This alleged informer never testified at the trial
and his identity was
never disclosed to the court
a
quo.
Mpofu
testified that his investigations led him to Nkosi who advised him
that the Appellant had never been robbed, at gunpoint,
of his motor
vehicle. This witness gave evidence that Nkosi implicated Kali. He
took their statements. In addition thereto he gathered
information
from the insurer as well as the tracking company.
The evidence of
Kopanski, Pretorius and Kekana
[40]
The evidence of these three (3) state witnesses was of a formalistic
nature. As such, this evidence
will only be referred to in this
judgment if necessary.
The
evidence of the Appellant
[41]
At the commencement of the trial the Appellant placed on record a
fairly lengthy and detailed
explanation of his defence in support of
his pleas of not guilty in terms of section 115 of the Criminal
Procedure Act 51 of 1977
(“the
Criminal Procedure Act&rdquo
;).
Little
purpose would be served by setting out the aforegoing. In summary,
the defence of the Appellant was that on the evening of
the 19
th
of October 2016, at approximately 18h20, he was robbed of his motor
vehicle by an armed assailant. The Appellant’s statement
in
terms of
section 115
also provided details as to his working
relationship with Nkosi; the fact that the Appellant had shared the
contents of the tracker
report with Nkosi and the fact that details
of what had occurred on the 19
th
of October 2016 was common knowledge amongst the people the Appellant
worked with, including Nkosi.
[42]
The solitary witness called to testify by the Appellant, namely
Nxumalo, confirmed the fact that
some two (2) hours after the robbery
Nxumalo picked up the Appellant who was walking in the direction of
Brakpan from where he
had been dropped off by the robber.
[43]
The Appellant’s defence to the Respondent’s case that he
had paid Nkosi and Kali
to set fire to his motor vehicle in order
that he could submit a claim to the insurer, was that Nkosi, in light
of the bad feelings
he had towards the Appellant arising from their
working relationship, conspired (with the assistance of Kali) to have
the Appellant
found guilty of the crimes of fraud and defeating the
administration of justice.
[44]
It was never argued, on behalf of the Respondent at the hearing of
this appeal, that the evidence
of the Appellant should have been
rejected by the court
a
quo
in light of the
Appellant being a bad witness and/or his evidence containing material
contradictions and/or his version of events
being improbable. This
court agrees that none of the aforegoing is applicable with regard to
the evidence placed before the court
a
quo
by the
Appellant. In the premises, the finding of the learned Magistrate in
the court
a quo
that the Appellant’s version should be rejected, must be held
to be a misdirection by the lower court. As submitted before
this
court by the Respondent’s Counsel, when considering the
totality of the evidence in deciding whether the Respondent
has
discharged the onus incumbent upon it, it is largely (if not solely)
the evidence of Nkosi and Kali upon which the case for
the Respondent
rests.
[45]
In this regard, it is imperative to note that both Nkosi and Kali
testified pursuant to the provisions
of
section 204
of the
Criminal
Procedure Act. As
such, both had strong motives to impress the court
a quo
as credible witnesses in order to be discharged from the crimes of
fraud and defeating the administration of justice. It
is trite
that the evidence of a witness testifying in terms of the said
section must be treated, by the court considering that
evidence, with
caution.
[46]
As noted earlier in this judgment, it is common cause that the
contradictions inherent in the
evidence of Nkosi and Kali; the
contradictions between the evidence of these State witnesses when
compared to one another, together
with the contradictions between
their evidence and the objective or neutral evidence of the tracking
report, are as submitted by
the Appellant’s Counsel at the
hearing of this appeal and as set out in this judgment. These
contradictions are clearly material.
If not, the number of those
contradictions, even if not material when viewed in isolation, is
illustrative of the blatant disparity
between the evidence of the
Respondent’s two (2) principal witnesses. When the evidence of
both of these state witnesses
is (as it must be) viewed with caution,
it is clear that the court
a
quo
misdirected
itself in accepting their evidence.
Conclusion
[47]
Considering the totality of the evidence and applying the correct
legal principles thereto, it
is clear that the court
a
quo
was wrong in
finding the Appellant guilty of fraud and defeating the
administration of justice. The material contradictions
in the
evidence of the two (2) principal state witnesses results in the
Respondent failing to prove, beyond reasonable doubt, the
guilt of
the Appellant. Moreover, there is nothing improbable about the
version of the Appellant which, on the evidence placed
before the
court
a quo
,
is reasonably possibly true. It could never be said that the
Appellant’s version was false beyond all reasonable doubt.
[48]
In passing, it is necessary to make some very brief and cursory
remarks in respect of the evidence
of Mpofu. Regarding this state
witness, it became apparent at the trial that he may have been
involved, with Nkosi and Kali, in
the conspiracy to have the
Appellant found guilty of the charges brought against the Appellant
in the court
a quo
.
Indeed, there is much to support such a view. The evidence of this
witness was less than satisfactory. In addition, his involvement
in
this matter and the circumstances pertaining thereto, lend support
for this contention. However, in light of,
inter
alia
, the fact that
the Respondent’s case rests squarely upon the evidence of Nkosi
and Kali, it is unnecessary for this court
to either set out Mpofu’s
evidence in any detail or to come to any conclusive finding in
respect thereof.
[49]
Likewise, it is not necessary for this court to make a finding on
whether or not Nkosi and Kali
conspired against the Appellant to have
him face trial in the Regional Court. Such a conspiracy, as alleged
by the Appellant, is
only relevant insofar as it provides a reason as
to why the testimony of Nkosi and Kali is false. It forms part of the
evidence
to be weighed up in its totality and should not be elevated
to more than that when determining whether the Respondent discharged
the onus incumbent upon it and whether the version of the Appellant
is reasonably possibly true.
[50]
It must follow that this appeal should be upheld and the conviction
of the Appellant by the court
a
quo
in respect of
the charges of Fraud and Defeating the Administration of Justice, set
aside.
Order
[51]
This court makes the following order:
51.1
The appeal is upheld;
51.2
The convictions of the Appellant (ASHLEY NAICKER) by the Regional
Court for Gauteng (sitting at Springs),
under case number RC2/79/17,
on the charges of Fraud and Defeating the Administration of Justice,
are set aside.
BC
WANLESS
ACTING
JUDGE OF THE GAUTENG DIVISION, PRETORIA
Heard
on
: 24 November
2020
For
the Appellant :
Adv
R Gissing
Instructed
by
: ZAF Attorneys
For
the Respondent
:
Adv AP Wilsenach
Instructed
by
: Director of
Public Prosecutions (Gauteng)
Date
of Judgment
: 22
February 2021