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[2021] ZAGPPHC 101
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Mmethi v S (A19/2020) [2021] ZAGPPHC 101 (25 February 2021)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO.
(2) OF
INTEREST TO OTHER JUDGES: NO.
(3)
REVISED.
DATE:
25 FEBRUARY 2021
CASE
NO: A19/2020
In
the matter between:
KGABO
JOHANNA MMETHI
Appellant
and
THE
STATE
Respondent
J
U D G M E N T
This
matter has been heard in terms of the Directives of the Judge
President of this Division dated
25
March 2020, 24 April 2020 and 11 May
2020.
The judgment and order are accordingly published and distributed
electronically.
DAVIS,
J
[1]
Introduction
1.1
This is the judgment in
an appeal against conviction and sentence by one of an initial set of
four accused, all charged with defrauding
the Compensation Fund,
which fund is established in terms of the Compensation for
Occupational Injuries and Diseases Act, no 130
of 1993.
1.2
The appellant was found
to have acted in common purpose with two of her co-accused on three
charges of fraud, totaling R467 150,
58. She was sentenced
on 4 December 2018 to 6 years imprisonment on each of the three
charges, which sentences were ordered
to run concurrently.
1.3
Leave to appeal was
refused in the court a quo but granted on petition on 29 October
2019.
[2]
The record
2.1
It is common cause that
there are deficiencies in the record. This prompted counsel for
the State to move for a postponement
of the matter. The
appellant was, however, anxious to have the appeal finalised, despite
these deficiencies.
2.2
The appellant’s
attorney has filed a substantial and very detailed affidavit wherein
he not only meticulously identified the
deficiencies in the record,
but also the various and numerous steps taken in an attempt to
complete the record. This included
requests made to the
appellant’s previous counsel, the prosecutor, the clerk of
court, the transcribers and the office of
the Director of Public
Prosecutions, all to no avail. In the end, he concluded that
the state of the record is as good as
it is ever going to get.
2.3
After some debate about
this issue during the hearing of the appeal, we ruled that the appeal
should proceed, in the interests of
justice, despite the deficiencies
in the record. In making this ruling, we were mindful of the
delay in finalising the matter,
the nature and extent of the
deficiencies as well as the judgments in
S
v Chabedi
2005 (1)
SACR 415
(SCA) and
S
v Schoombee
2017
(2) SACR 1
(CC).
2.4
We also had, in making
the aforesaid ruling, regard to the merits of the appeal. From
this, as more fully set out hereunder,
the reasons for allowing the
appeal to proceed, will become even more clear.
[3]
The factual
background
3.1
There was little
dispute about the process applied at the Compensation Fund’s
offices when claims by healthcare practitioners
are processed.
In short, it is the following:
3.1.1
After a practitioner
has treated a patient for a condition or injury sustained due to a
workplace-related accident, the practitioner’s
invoice is
submitted to the fund. Often this is done in person.
3.1.2
Upon receipt of the pro
forma invoice from a practitioner, it will be stamped, registered and
assigned a claim number. The
invoice is then transferred to a
store-room (known as a “strongroom”).
3.1.3
A supervisor will then
from time to time collect batches of invoices, which will now become
claims, and allocate them to “capturers”
and later to
“preparers”. Each preparer will then “prepare”
the claims, by comparing the information
contained therein, such as
employee and employer particulars with the information “on the
system” wherein workplace-related
accidents have been logged.
3.1.4
From the “preparers”,
a claim proceeds to an “approver”. An approver
checks and whether the applicable
codes for the procedures performed
had been assigned in accordance with the system of codes published
from time to time in the
Government Gazette.
3.1.5
After approval, the
claims proceed to the payment stage. Payments are made in bulk
and directly to healthcare practitioners’
bank accounts.
3.1.6
At each stage, every
official dealing with a claim, whether it be a capturer, preparer or
approver, logs onto the electronic system
by way of an identifying
password. It is therefore possible to ascertain after the fact
who had performed each respective
task.
3.2
At the behest of the
Compensation Commissioner, forensic investigations into the payment
of claims by the Compensation Fund during
the period 2006 to 2009
were initiated. A certain Mr Beukes from PKF Auditors was
appointed as one of the investigators.
He conducted forensic
investigations in conjunction with an Information Technology (IT)
specialist, Ms Merrington. Together
they extracted data from
the Compensation Fund’s records and compiled a schedule of
payments (in the form of a spreadsheet)
made into the bank accounts
of various practitioners, including a physiotherapist, Mr M. J.
Mudau.
3.3
From the evidence of Mr
Beukes, Ms Merrington and Mr Mudau the following history became
apparent: Mr Mudau had accompanied a fellow
physiotherapist from
Rustenburg to the Compensation Fund’s offices in Pretoria early
in 2009. Mr Mudau’s purpose
was to submit legitimate
claims. In the parking lot of the Fund’s offices, the
colleague telephoned someone who came
out to meet them. These
persons were the first and second accused. During the return
trip on the way to Rustenburg
Mr Mudau’s colleague explained
that the two gentlemen which he had introduced to Mr Mudau in the
parking lot, can “facilitate”
payments via the Fund.
The scheme worked like this: a practitioner would submit fraudulent
claims for non-existent patients
or over-inflated invoices for actual
but often minor treatments in respect of actual reported workplace
related accidents.
Accused no’s 1 and 2 would see that
these claims were processed and paid out. Afterwards, the
practitioner, in this
case, Mr Mudau and accused no’s 1 and 2
would divide and share the spoils. This actually took place in
respect of the
claims set out in the investigators’ spreadsheet
referred to earlier. Mr Mudau thereafter effected payment from
his
bank account into accounts designated by the said other two
accused.
3.4
It was as a result of
his participation in the scheme that Mr Mudau was initially charged
together with the appellant and her two
co-accused, but early on, the
proceedings against him were separated. He proceeded to plead
guilty and was sentenced in separate
proceedings. Hereafter he
became a witness in the appellant’s trial.
3.5
The factual matrix
summed up above, had been confirmed by Mr Mudau in evidence in the
trial of accused no’s 1 and 2.
The appellant was accused
no 3 in the trial.
[4]
The involvement of
the appellant
4.1
The reasons why the
appellant had been charged as a co-accused in the scheme ran by the
other accused, were two-fold: firstly, she
had been the “preparer”
in respect of some of Mr Mudau’s claims and secondly, she was
generally assigned to prepare
claims for healthcare practitioners
from Gauteng and not from North-west province, in which province Mr
Mudau had his practice.
4.2
The appellant had
testified in her own defence. She explained that, although she
generally prepared claims for Gauteng practitioners,
she from time to
time prepared claims for practitioners form other provinces,
depending on what invoices the supervisor allocates
to her.
Insofar as she may have “prepared” invoices incorrectly
when she compared them to the data on the system,
she conceded that
she may have done so erroneously. This was done as a result of
the high workload in order to try to accommodate
the Fund’s
backlog of claims.
4.3
In
all other instances or claims which formed the subject matter of the
charges, accused no 2 had been the preparer. In respect
of all
the claims, whether prepared by accused no 2 or the appellant,
accused no 1 (who had left the employ of the Compensation
Fund by the
time Beukes had completed his investigations), was the “approver”.
It was accused no 1’s “approval”
in each instance
which led to payment of the amounts in question to Mr Mudau.
4.4
Was the appellant an
innocent cog in the other accused’s fraudulent machinery?
Mr Mudau had never even met her and made
no reference to her in his
plea of guilty, although he expressly implicated the other two
accused. When cross-examined about
this aspect, he confirmed
that he could not and did not implicate the appellant.
4.5
The learned magistrate
has meticulously summed up the evidence, including that of Beukes and
Merrington and a friend of accused
no 1, who operated a driving
school in conjunction with him into which school’s bank account
accused no 1’s “split”
was paid in as well as a
nursing sister who was employed by the Compensation Fund and who
explained and confirmed the claims processes
and the allocated codes
for certain medical procedures. This summary by the magistrate
covered evidence which would have
been contained in the missing parts
of the record. In none of these summaries were the appellant
implicated other than her
role as preparer of some of the claims as
already referred to above.
4.6
A most telling point in
favour of the appellant, was the absence of any evidence that she had
shared in any of the spoils of the
fraudulent scheme. The
magistrate therefore found her not guilty on charges 4 – 9,
being money-laundering charges in
respect of which the other accused
(and Mr Mudau) had been found guilty of.
4.7
It is difficult to
appreciate exactly on what basis the learned magistrate, having found
that the appellant had played no part in
the sharing of the money
obtained by way of the submission of fraudulent claims and did not
benefit thereby, then found that the
appellant had acted in common
purpose with the other perpetrators.
[5]
Conclusion
In our view, it has not been proven beyond reasonable
doubt that the appellant had been part of the fraudulent scheme.
The
appeal should therefore succeed.
[6]
Order:
I propose that the following order be made:
1.
The appeal is upheld.
2.
The appellant’s
convictions on charges 1, 2 and 3 and the sentences imposed in
respect thereof, are set aside.
N
DAVIS
Judge
of the High Court
Gauteng Division, Pretoria
I agree and it
is so ordered.
S.
A. M BAQWA
Judge
of the High Court
Gauteng Division, Pretoria
Date of
Hearing: 26 January 2021
Judgment
delivered: 25 February 2021
APPEARANCES:
For
the Appellant:
Adv. M Bouwer
Attorney
for Appellant:
Du Toit Attorney
,
Pretoria
For
the Respondent:
Adv J P Krause
Attorney
for Respondent
:
Director
of Public Prosecution
,
Pretoria