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[2021] ZAGPPHC 222
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Madisha v S (A403/2018) [2021] ZAGPPHC 222 (17 March 2021)
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
(GAUTENG
DIVISION, PRETORIA DIVISION)
APPEAL
CASE NO
:
A403/2018
COURT
A QUO
CASE NO
:
14/1579/2011
DATE
:
25 February 2021
REPORTABLE:
NO
OF INTEREST TO OTHER JUDGES:
NO
REVISED:
Yes
DATE: 17/3/2021
In
the matter between:
MADISHA,
THABO
Appellant
-
and -
THE
STATE
Respondent
Coram:
Sardiwalla J
et
Millar AJ
Heard on
:
25 February 2021 – This appeal was, by consent between the
parties, disposed of without an oral
hearing in terms of
s 19(a)
of
the
Superior Courts Act 10 of 2013
.
Delivered:
17 March 2021 – This judgment was handed down
electronically by circulation to the parties' representatives by
email, by being
uploaded to the
CaseLines
system of the GLD
and by release to SAFLII. The date and time for hand-down is deemed
to be 14H00 on 17 March 2021.
Summary:
Criminal law and procedure – conviction
– appellant convicted on uncorroborated evidence of co-accused
– application
of cautionary rules in evaluation of evidence
- Magistrate incorrectly accepted evidence of co-accused
uncritically
and disregarded relevant contradictory evidence –
appeal upheld and conviction and sentence set aside. .
ORDER
On
appeal from:
The
District Court of Tshwane Central (Magistrate Patterson sitting as
Court of first instance):
(1)
The appellant’s appeal against his
conviction and sentence is upheld.
(2)
The appellant’s conviction and
sentence by the District Court of Tshwane Central be and is hereby
set aside.
JUDGMENT
MILLAR, A J
1.
This Appeal is
against a conviction on charges of contravening
Sections 6(b)
and (c)
of the
Prevention of Organized Crime Act 121 of 1998
. The
Appellant was charged together with 13 other parties of this and
various other offences and appeared in Court for the
first time on 31
August 2011. The trial was protracted and on 20 October 2016,
some five years later, the Appellant was convicted.
Thereafter
and on 10 May 2017 he was sentenced to five years imprisonment. This
Appeal is brought with leave having been granted
by the Court a
quo.
2.
The charges
brought against the Appellant and 12 other parties stemmed from an
attempt to defraud the South African Revenue Services
of the sum of
R9.2 million. It was not disputed that the personal records of
a provisional taxpayer were accessed and amended
so that a
significant refund which became due to that taxpayer was then paid
into a third-party bank account – Botlhatlogo
Business
Enterprise CC (“Botlhatlogo”).
3.
A portion of
the proceeds were dissipated from the third-party bank account, some
of which were paid into the bank account of Lebsa
Business Enterprise
CC (“Lebsa”), a close corporation of which the Appellant
was not a member but on whose bank account
he had authority to sign.
It is the transactions on that bank account commencing on 4 August
2011 up to and including 5
August
2011 and involving the dissipation of R133 544.50 that formed the
basis of the charges against the Appellant and his subsequent
conviction.
4.
The Appellant
did not testify at the trial but after having pleaded not guilty the
following explanation in respect of the plea
was placed on record.
The Appellant was at the time employed by a finance company called
Afro Oracle Financial Services.
Persons approached this company
for finance from time to time. The practice of the company was
that when persons approached
them for finance and finance was given,
a condition of such finance was that one of the employees of Afro
Oracle Financial Services
would be given signing powers on the bank
account of the party seeking finance.
5.
This was done
ostensibly so that when the time came for repayment of what had been
advanced by way of finance, Afro Oracle Financial
Services would have
no delay or difficulty in obtaining payment of what was due to it.
However, no such funding was granted
to Lebsa. It was also
placed on record that no funding was in fact ever granted by Afro
Oracle Financial Services to Lebsa.
The plea explanation went
no further than this.
6.
None of the
evidence led by the state from either the South African Revenue
Services Investigator, Mr. Klopper (“Klopper”)
or the
South African Police Service Investigator, Lieutenant Molekwa
(“Molekwa”) implicated the appellant. The high-water
mark
of their respective evidence at least insofar as the appellant is
concerned was that he was a signatory on Lebsa’s bank
account,
and importantly that the appellants signature did not appear on any
of the documents from the bank relating to any of
the transactions
referred to in paragraph 2 above.
7.
Further
evidence led on behalf of other co-accused in the trial and pertinent
to the appellant was that of Thabo Ramose(“Ramose”),
his
employer at Afro Oracle and a co-accused
[1]
,
Lebogang John Thamaga (“Thamaga”) who was also the sole
member of Lebsa.
8.
No evidence
was led by either Klopper or Molekwa that the appellant actually ever
shared in the proceeds that were withdrawn from
the Lebsa bank
account. There was in fact no evidence led by the State at all
to either implicate or connect the appellant
to the fraudulent
transactions. At the conclusion of the State’s case, the
only evidence upon which it could be said
that the appellant was
implicated in the crime for which he was charged was that he was a
“signatory” on the bank account
of Lebsa.
9.
The evidence
of Ramose established that his business did indeed provide bridging
and other financial assistance to smaller companies
that were awarded
tenders, and which required capital in order to perform their
obligations in terms of those tenders. He
also testified that
one of the conditions of his business was that when finance was
given, he would require that he would usually
either himself or
occasionally an employee, be appointed as a signatory on the bank
account of the company to which he provided
finance so that his
business would have some security and would be able to retrieve
payment of what was due to it more easily.
10.
Ramose also
testified that his business received many applications and that often
these applications were made orally. He
did not keep records of
all the applications that had been made and also did not keep records
of transactions that did not proceed.
He was unable to testify
positively whether Lebsa had or had not ever made an application or
whether his business had an incomplete
transaction with Lebsa.
He was however able to testify positively that no transaction was
entered into as he had records
for those transactions that were
entered into.
11.
Thamaga
testified that he was an entrepreneur who had established Lebsa while
living in Polokwane. He had then moved to Tshwane
and began
conducting business there. Besides the business of Lebsa, he
was also a pastor and it was through this and a fellow
pastor that he
had come to meet the appellant. The appellant had told him that
he was able to procure business and so they
had decided that the
appellant would become a “co-signatory” on the bank
account of Lebsa. The evidence of Thamaga
was that he
understood that once the appellant became entitled to sign on the
bank account of Lebsa, they were ostensibly business
partners even
though the appellant was never registered as a member of Lebsa.
The date on which the appellant became the
“co-signatory”
was 16 February 2011.
12.
No business
eventuated between 16 February 2011 until some stage in July 2011
when the appellant had approached him and informed
him that there was
a business opportunity and that they had to quote for the removal of
rubble. Thamaga testified that he
had discussed this
opportunity with the appellant and that he had prepared a written
quote. He was not able to produce a
copy of the written quote
in court and testified that a copy was in the possession of the
attorney who had appeared for him at
his bail application and could
be obtained from him if required.
13.
He
testified that he did not know with whom the contract for the removal
of the rubble would be entered into with, did not know
how much
rubble was to be removed or from where or to where it was to be
removed. Notwithstanding this, he testified that
the appellant
had conducted all the negotiations for this contract and knew the
details.
14.
On 5 August
2011, he had been in Johannesburg when he had received a call from
the appellant. The appellant informed him that the
persons for whom
the rubble was to be removed had made an advance payment to Lebsa but
that they had overpaid by some R115 000.00
and required a refund
immediately. The appellant asked that he travel immediately to
Tshwane and meet him at the bank which
he did.
15.
When he
arrived at the bank, he met the appellant. He initially
testified that he had gone into the bank on his own and the
appellant
had waited outside but then changed this to say that both he and the
appellant had gone into the bank together.
He testified that
the reason that they had gone into the bank together was that the
appellant was a “co-signatory”
on the bank account and
that it was necessary for him to be present in order for the refund
to be authorized.
16.
He testified
that he had suggested that the refund be effected by way of a
transfer but that the appellant who was in regular telephonic
contact
with the customer had said that the customer insisted on a cash
refund. The bank manager had indicated that the branch
did not
carry sufficient cash to make R115 000.00 immediately available and
had proposed the issue of a bank cheque for R100 000.00
which could
be cashed at another branch and that the R15 000.00 be withdrawn
“outside” (presumably meaning from an
automated teller
machine). He testified that they had both signed documents
authorizing the issue of the bank cheque and
that they had gone
“outside” and drawn the R15 000.00. He testified
that the bank manager would be called to
testify and corroborate his
evidence.
17.
They had then
driven corner Church and […] Streets in Tshwane where unknown
persons were met and the R115 000.00 which was
in a parcel, was
handed by Thamaga through the passenger window to a third person who
then left. In his evidence he identified
another co accused as
the person to whom the money had been handed.
18.
In cross
examination he testified that in respect of a specific deposit or R25
678.00 which was made into the bank account of Lebsa
on 5 June 2011,
he had on the same day the deposit was made, gone and transferred the
full amount to another account in payment
to a third party. He
testified that the appellant had had nothing to do with this
particular transaction and that he had
gone to the bank with the
people who had given him the business and the transfer had been
effected. The appellant was not
present on that day and did not
co-sign for the transfer at the bank on that day.
19.
Thamaga was
cross examined at some length in regard to the events at the bank.
He persisted in testifying that the appellant
was present with him
when he had seen the bank manager. He testified that the bank
manager could be called, or the CCTV footage
would verify this.
20.
The
documentary evidence before the Court establishes that the appellant
was indeed appointed as a signatory on the bank account
of Lebsa on
16 February 2011. The document which confirms the appointment
specifically provides that insofar as the operation
of the bank
account was concerned, that “both signatories to sign”
(page 708)
.
/// On a plain reading of this document, it is apparent that Thamaga
ought not to have been in a position to sign for any withdrawal
alone
and yet the documents evidencing the requisition of the bank cheque
bare only the signature of Thamaga.
(page
824).
////
There were no documents entered into evidence in regard to the
counter withdrawal.
21.
The bank
statements of Lebsa were also entered into evidence and these
established that between 16 February 2011 and 5 August 2011,
the
Lebsa account had a maximum balance of R1 345.05 but on the day
before the fraudulent deposit of R389 654.78 had a balance
of
R11.49. It also establishes that on 5 August 2011, besides the
bank cheque of R100 000.00, a counter withdrawal of R10
000.00 was
made. Besides the documents relating to the issue of the bank
cheque, which was signed only by Thamaga, no evidence
relating to the
counter withdrawal was placed before the Court.
22.
Notwithstanding
that Thamaga testified that his former attorney could or would be
called to produce the “quotation”
or that the bank
manager would testify regarding the presence of the appellant at the
bank on 5 August 2011, no such evidence was
ever led.
23.
The appellant,
aside the plea explanation, elected not to testify. It is well
established in circumstances such as this that
:
“
The
accused admits nothing by choosing to exercise his right not to deny
the charge on oath
”
[2]
and
that no adverse inference can be drawn against the appellant in
consequence of this.
[3]
24.
In summary,
the case against the appellant was based, in the first instance by
the State on the fact that he was a “co-signatory”
on the
Lebsa bank account without any other evidence whatsoever. In
fact, the State’s evidence was that even though
the appellant
was a co-signatory on the account his signature did not appear on any
of the documents that were tendered into evidence.
The evidence
of Ramose was consistent with the version put forward by the
appellant in explanation of his plea. The entire
case against
the appellant is to be found in the evidence of Thamaga.
25.
It is trite
that the evidence of a co accused given in his own defence is
admissible against other co accused and that when determining
the
weight to be attached to such evidence, it is necessary to do so with
some circumspection.
26.
The
cautionary rule as it applies to accomplice evidence was set out by
Holmes JA in S v Hlapezula and Others
[4]
as follows:
“
It
is well settled that the testimony of an accomplice requires
particular scrutiny because of the cumulative effect of the following
factors. First, he is a self-confessed criminal. Second,
various considerations may lead him falsely to implicate the
accused,
for example, a desire to shield a culprit or, particularly where he
has not been sentenced, the hope of clemency.
Third, by reason
of his inside knowledge, he has a deceptive facility for convincing
description – his only fiction being
the substitution of the
accused for the culprit. Accordingly……there has
grown up a cautionary rule of practice
requiring (a) recognition by
the trial Court of the foregoing dangers, and (b) the safeguard of
some factor reducing the risk of
a wrong conviction, such as
corroboration implicating the accused in the commission of the
offence, or the absence of gainsaying
evidence from him, or his
mendacity as a witness or the implication of an accomplice by someone
near and dear to him; see in particular
R v Ncana
1948 (4) SA 399
(A)
at 405 – 406; R v Gumede
1949 (3) SA 749(A)
at 758; R v
Mqantwani and another
1959 (1) SA 894
(A) at 897G to 898D.
Satisfaction of the cautionary rule does not necessarily warrant a
conviction, for the ultimate requirement
is proof beyond a reasonable
doubt, and this depends upon an appraisal of all the evidence and the
degree of the safeguard aforementioned.”
27.
The learned Magistrate in his judgment,
seems to have accepted the evidence of Thamaga uncritically and had
regard only to those
parts of the evidence of Klopper, Molekwa and
Ramose that corroborated Thamaga’s version. The fact
remains that there
was no evidence before the Court other than the
version of Thamaga that the appellant was present at the bank with
Thamaga on 5
August 2011.
28.
Significantly, the evidence of
Thamaga was that notwithstanding that the appellant was a
“co-signatory” on the Lebsa
bank account, Thamaga had on
a prior occasion without either the knowledge or the presence of the
appellant transacted on the bank
account on his own. None of
the documentary evidence placed before the Court corroborates the
version of Thamaga that the
appellant was indeed present. The
evidence establishes rather that it was Thamaga alone who attended at
the bank to make
the withdrawals. It is also noteworthy that
even on Thamaga’s own version, the appellant did not know, nor
had he ever
had sight of the alleged “quotation” for
rubble removal and so even on this version, the appellant had no
knowledge
of how much was to have been paid.
29.
The entire case against the appellant is
founded upon the fact that he was appointed as a “co-signatory”
on a bank account
6 months before the transaction in question and in
circumstances where after having been so appointed, he was not party
to any
transaction until the impugned transaction.
30.
The only evidence that the appellant was in
any way connected with the impugned transaction is the attempt to
incriminate him by
Thamaga and having regard to the fact that the
documents signed in the bank on the day in question do not reflect
the appellant
as having signed, leads to the ineluctable conclusion
that the evidence of Thamaga incriminating the appellant is a
fabrication
and to be disbelieved and rejected.
31.
In the circumstances, I propose the
following order:
31.1
The appeal against conviction and
sentence is upheld.
31.2
The appellant’s conviction and
sentence by the Tshwane District Court be and is hereby set aside.
A MILLAR
ACTING JUDGE OF
THE HIGH COURT
I AGREE AND IT IS
SO ORDERED
C SARDIWALLA
JUDGE
OF THE HIGH COURT
HEARD
ON:
25 FEBRUARY 2021
JUDGMENT DELIVERED
ON:
17 MARCH
2021
COUNSEL FOR THE APPELLANT:
ADV S DLALI
INSTRUCTED
BY:
NKOME ATTORNEYS
REFERENCE:
MR AK NKOME
COUNSEL FOR THE RESPONDENT:
ADV H NXUMALO
INSTRUCTED
BY:
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
- PRETORIA
REFERENCE:
PA47/2018
[1]
Accused
11 in the trial
[2]
Tumahole
Bereng v R
[1949] AC 253
(PC) at 270
[3]
See
Sections 35(1) and 35(3)(h) of the Constitution of the Republic of
South Africa 1996 which provides for the right to remain
silent and
the right to refrain from testifying during criminal proceedings.
These rights fall within the Bill of Rights
in the Constitution.
[4]
1965
(4) SA 439
(A) at 440D-H; see also the South African Law of
Evidence, 2
nd
Edition, Zeffertt & Paizes, Lexisnexis 2009 Chapter 25.