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[2009] ZASCA 125
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Botha v S (425/08) [2009] ZASCA 125; [2010] 2 All SA 116 (SCA) (30 September 2009)
THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
Case no: 425/08
No precedential significance
JACOBUS
LOUIS BOTHA
Appellant
and
THE
STATE
Respondent
Neutral
citation:
Botha
v S
[2009] ZASCA 125
(29
September 2009)
CORAM:
NAVSA and LEWIS JJA and LEACH AJA
HEARD:
9 September 2009
DELIVERED:
30 September 2009
SUMMARY:
Minor inaccuracies in charge sheet not
sufficient to find that accused did not know what case he had to
meet: copies of documents
admissible as best evidence:
appellant convicted on 69 charges of fraud, one of forgery and one of
uttering: appeal upheld
only to extent of changing one conviction to
convictions on all charges: sentence of 12 years’ imprisonment
confirmed.
ORDER
On
appeal from: North Gauteng High Court (Preller and Motata JJ sitting
as a full bench on appeal).
1 The appeal is successful only to the
extent that the substitution by the high court of convictions on 69
charges of fraud with
a conviction on one charge of fraud is set
aside.
2 The order of the high court is
altered to read as follows:
‘
(a)
Save that the conviction on charge 72 is set aside, the appeal is
dismissed.
(b) The appeal against sentence is
upheld. The sentence is set aside and replaced with a sentence of
twelve years’ imprisonment.
This sentence is deemed to have
commenced on 15 November 2001.’
JUDGMENT
LEWIS
JA (NAVSA JA AND LEACH AJA CONCURRING)
[1] The
appellant, Mr J L Botha, practised as an attorney in Potgietersrus
(now Mokopane). On 8 November
2001 he was convicted in the Regional
Court, Pietersburg (now Polokwane), on 69 counts of fraud, two counts
of forgery and one
count of uttering. He was sentenced in November
2001 to a total period of 29 years’ imprisonment, several
sentences to run
concurrently such that the effective sentence
amounted to 18 years’ imprisonment. Botha had pleaded not
guilty to all the
charges. He appealed against all the convictions
and sentences to the North Gauteng High Court.
[2] The
appeal was heard by the full bench (Preller and Motata JJ) on 29
November 2004 and was effectively
dismissed on 7 March 2007, save
that the high court substituted for the 69 counts of fraud only one
charge of fraud, apparently
assuming it could do so; upheld the
appeal against one charge of forgery and dismissed the appeal in
respect of one charge of forgery
and one of uttering. The effective
period of imprisonment was reduced to 12 years. Leave to appeal
against conviction and sentence
was given by this court. This is
effectively an appeal against the conviction on charges 1 to 71.
[3] Both
Botha and the State agree that the combination of 69 counts by the
high court into one was
impermissible and that an accused is entitled
to be either acquitted or convicted in respect of every charge laid
against him or
her.
Section 106(4)
of the
Criminal Procedure Act 51
of 1977
provides that an accused who pleads to a charge is entitled
to ‘demand that he be acquitted or convicted’.
[4]
Botha was not granted bail pending appeal and by the time this appeal
was heard he had been released
from prison on parole.
[5] The
69 charges of fraud were alleged in the charge sheet to have been
committed over a period
from October 1996 to May 1999. In respect of
counts 1 to 63, the charges were that on the dates set out in a
schedule to the charge
sheet, and at Pietersburg, Botha, in the name
of various business entities also set out in the schedule,
wrongfully, falsely and
with the intention to defraud, presented
returns to the South African Revenue Service (SARS) claiming
repayment of Value Added
Tax paid to suppliers, also listed in the
schedule, based on false invoices. The amounts claimed were also set
out in the schedule.
In misrepresenting that the VAT returns were
true, the State alleged, Botha had prejudiced SARS which had accepted
the returns
as correct and paid the amounts set out in the schedule,
for the benefit of Botha.
[6]
Counts 64 to 69 were of the same nature save that it was alleged that
the offences were committed
in Klerksdorp. All the charges of fraud
were brought on the basis that Botha was instrumental in the creation
of false invoices
for goods or materials supplied to one of the
entities over which he had control; that he had drafted tax returns
claiming VAT
refunds which would be signed by a member of his staff
in the legal practice as the ‘bookkeeper’ (though in fact
not
one of those who signed was a bookkeeper or knew anything about
the books); that he would ensure the submission of the returns to
SARS; and that SARS would make the refunds to the entity claiming, to
its prejudice. A number of entities and suppliers were involved.
None
of the VAT 201 returns was signed by Botha himself.
[7] No
purpose would be served in describing each charge and the entities
involved. Suffice it to
say that there were some eight businesses
that allegedly made the claims for VAT refunds over the two year
period and five suppliers
whose tax invoices were involved. An
example suffices. The first charge was that on 31 October 1996,
in the tax period October
1996, a return was submitted by ‘L
Botha Praktyk’ (Botha’s legal practice) claiming two
amounts – R22 000
and R20 844.47 – in respect of VAT
payments that had been made to ‘Primaforce’. (The
invoices used in support
of the claims were those of Bosveld
Automotive Centre trading as ‘Primaforce Exhausts
Potgietersrus’, and reflected
work done on ‘swaar
voertuie’ (heavy vehicles such as trucks). ) The other charges
follow the same pattern.
[8] The
evidence of the State before the trial court comprised the testimony
of a tax inspector from
SARS, Mr A J Vogel, former business
associates of Botha and several former employees in his practice, all
of whom gave evidence
on their role, at the instance of Botha, in the
submission of the VAT returns or the creation of false invoices. The
State produced
either the original returns (VAT 201 forms) or copies,
VAT input lists, and invoices or copies of them. Botha did not give
evidence
in his own defence.
[9] The
defences before the trial court and the arguments on appeal are that
the charge sheet was
defective in that the correct name of every
entity which made claims is not given; that Botha’s share or
involvement in it
is not correctly stated; that the evidence is
largely circumstantial (this is, however, really an attack on the
authenticity and
admissibility of the documentary evidence, to which
I shall return); and that some of the witnesses were not credible,
especially
since two of them had been convicted of fraud for some of
the offences with which Botha was charged, and were warned against
self-incrimination
as witnesses in terms of
s 204
of the
Criminal
Procedure Act, as
was one other witness who had not been prosecuted.
[10] Much was made
also about the fact that several documents on which the State relied
had been found by Vogel
on his desk, and that he did not know who had
put them there (a matter to which I shall return). The gravamen of
the defence was,
however, that Botha did not know what case he had to
meet since the charge sheet was inaccurate in many respects. It was
argued
thus that he had not had a fair trial.
[11] It is of course
true that an accused is entitled to know exactly what charges he or
she has to meet, and
that a conviction on the basis of a different
charge that has not been made, either initially or through an
amendment during the
course of the trial, would be unfair:
S v
Rosenthal
1980 (1) SA 65
(A) at 89D-H. In this case,
however, the State did not seek or gain a conviction on any charge
not set out in the charge sheet,
including the schedules, itself.
Botha’s argument that the schedule was inaccurate in certain
respects does not go to the
substance of the charges. It goes to the
information in the charge sheet which was not actually necessary
(such as the membership
of some of the entities that made the VAT
returns). Moreover the charge sheet, including the schedules, can in
my view be easily
read and understood. Thus the contention that he
did not know what case he had to meet cannot be accepted.
[12] It should be
stated also that during the course of the trial, which extended over
a lengthy period, Botha’s
legal representative did not ever
assert that Botha did not know what case he had to meet. The
witnesses were all cross examined
at length and it is apparent that
Botha knew exactly what the charges were. He and his legal
representative had access to all the
documents that underlay the
charges. The defence had also requested, and been given, further
particulars for the purpose of pleading
and preparing for trial.
[13] Because of the
use of many documents and the related oral evidence, not generally
led in any particular order,
the appeal record is not a model of
clarity. Before the hearing this court requested counsel for Botha
and the State to provide
schedules indicating which documents in the
record were used as evidence in respect of each charge, whether they
were original
or copies, and whether they were regarded as admissible
or were contested. A postponement of the hearing was granted to allow
counsel
the required time to provide the schedules requested. The
State provided a schedule timeously. Botha’s counsel produced
three
volumes on the morning of the hearing. We have worked thus on
the schedule provided by the State which has been checked against
the
record. The schedule demonstrates that there was both documentary and
oral evidence in respect of every charge. I shall
revert to the
issue whether copies of documents suffice.
[14] I shall not
deal with the oral evidence in any detail, nor even mention all the
witnesses: no oral evidence
was led for the defence, and the
extensive cross-examination of each witness by Botha’s legal
representative did not reveal
any substantive flaw in the State’s
evidence. The trial court found that the witnesses were credible and
those who were warned
in terms of
s 204
of the Act had given
satisfactory evidence. There was no argument on appeal that the
evidence was not credible – only that
it was circumstantial.
That in itself is hardly a flaw. But in any event, as the ensuing
discussion will show, it is untrue that
the evidence was mainly
circumstantial. A host of witnesses testified and identified
documents which they said they had signed
or completed on Botha’s
instructions. These documents are referred to in the charge sheet.
[15] The evidence
led at the trial tells the story of how the alleged frauds were
perpetrated. Vogel, who gave
evidence first, was a tax inspector in
SARS. While doing random checks on VAT returns he chanced on a return
from an entity known
as Olbo (Pty) Ltd, which seemed to him to be
suspicious. He arranged a tax inspection with Botha who was
registered as the representative
of Olbo. Vogel and a colleague met
Botha at a hotel in Potgietersrus. He also went to the premises of
Olbo but could not establish
what sort of business it ran. He
subsequently arranged with members of the South African Police
Services to do further inspections
at Botha’s offices and at
his home.
[16] Vogel and
police working with him found several copies of VAT returns and of
tax invoices on these inspections,
and he requested Botha to send him
other documents relating to the VAT claims of a number of businesses
in which Botha had some
involvement. Shortly after that, on returning
to the SARS offices one day, he found a pile of documents on his desk
which related
to the businesses in which Botha was involved,
including his legal practice, and he and the police pursued their
investigation
of the VAT claims and payments made. Botha has
questioned the provenance of the documents that Vogel found on his
desk. Vogel’s
response to questioning in this regard was that
he did not know how they had got there and by whom they were
delivered. But one
cannot escape the compelling inference that they
came from Botha himself since he had been asked to provide further
documents to
Vogel, and since, as I have said, witnesses testified
about their roles in the creation of all the documents in question on
Botha’s
instructions.
[17] Vogel also
testified about meetings that he had with a Mr K H Dauth and a Mr S
Louwrens, both of whom also
gave evidence. Vogel obtained statements
from them as to their complicity with Botha in making false invoices.
Dauth and Louwrens
were also charged with fraud and forgery
respectively, and both had pleaded guilty and been convicted and
sentenced. (They were
warned in terms of
s 204
of the Act.) The
essence of the evidence was that Louwrens and Dauth, among others,
had been requested to invoice other businesses
by Botha. Louwrens
asserted that he had believed that the invoices were genuine and that
he had been misled by Botha. Botha had
in fact arranged for a
business in Louwrens’s name to be registered as a VAT vendor.
For his part in creating false tax invoices
Louwrens was charged with
six counts of forgery. He pleaded guilty and was sentenced to five
years’ imprisonment followed
by correctional supervision in
terms of
s 276(1)(i)
of the Act.
[18] Dauth
acknowledged that he knew that what he was doing was wrong, but said
that he had, at the time in question,
been an alcoholic and was
dependent on Botha. His business, Prima Force, had ceased to trade;
he was in dire financial straits
and he had been willing to create
false invoices for work done to vehicles, and for other purposes, at
the request of Botha. The
invoices underpinning the first charge,
described above, were written by Dauth, who knew that they were
false, but was willing
to assist Botha in what he was told were
bookkeeping arrangements. For his role, Dauth was charged with 74
counts of forgery. He
pleaded guilty and was sentenced to seven
years’ imprisonment which was suspended for four years.
[19] The other
witness warned in terms of
s 204
was Ms C F Peuckert, who was
employed in Botha’s practice. She too had given a statement to
Vogel about the false returns
she had signed on Botha’s
instructions. She had spent several days, after Vogel first began
investigating Botha, sorting
out papers, compiling files of invoices,
and typing ‘input lists’ for VAT refunds, all from
material that had been
given to her by Botha. Peuckert testified that
she had been instructed by Botha to take the computer on which she
worked home and
to destroy the data on it. She had, however, copied
files from the computer to stiffie disks and handed them to the
police.
[20] Peuckert also
testified that Botha had gone to Namibia, apparently with the
intention of evading a trial,
and had summoned her to meet him there
on the pretext that she too might be charged and should leave the
country. She had indeed
gone to Namibia but returned to South Africa
when she realized that Botha’s reason for summoning her was to
continue a sexual
relationship with her and not to protect her from
prosecution.
[21] Another
employee in the practice, Mrs Smith (Engelbrecht when she gave
evidence) testified that she had filled
out tax invoices on Botha’s
instructions (all on the same day) in respect of a business known as
Basson and Sons, and had
also signed VAT returns in the capacity as
bookkeeper although she was not one.
[22] Charges 70 and
71 (the trial court did not convict Botha in respect of charge 73,
and the high court upheld
Botha’s appeal on charge 72) are for
forgery and uttering respectively. They relate to an attorney, whose
tax invoice book
Botha allegedly took when on a visit to Van
Niekerk’s offices. Van Niekerk’s testimony and
documents adduced
by the State showed that invoice pages were removed
from the book, and filled in by Botha, reflecting payments payable to
him for
work done for a number of clients, none of which was genuine.
The invoices were found in Botha’s offices. Only one invoice
was sent to SARS, however, hence the one conviction for uttering and
two for forgery.
[23] Botha’s
signature did not appear on any of the documents adduced by the
State, although some had been
partially completed by him. But in my
view, the evidence that he instructed other people to fill in false
tax invoices and submit
signed VAT returns to SARS, to its prejudice
and for his benefit, is overwhelming. There are documents that
support each charge,
and the State witnesses testified as to who
filled in tax invoices, completed VAT 201 returns, and the reasons
for doing so: Botha
had instructed them so to do.
[24] Moreover, the
documents speak for themselves in so far as falsity is concerned. No
explanation was proffered
as to why Prima Force, for example, would
do extensive and costly work on trucks for an attorney’s
practice. Nor was
there an explanation why a furniture dealer
(Basson and Sons) sold wild animals to a farm on land that could not
be traced. These
are random examples of the kinds of claims that were
made on Botha’s instructions.
[25] The input tax
statements generated in Botha’s office also tell a story.
Again, a random example illustrates
this: for the period December
1996 to January 1997, the claims for repayment of VAT in respect of
Botha’s practice each amounted
to less than R30 (some for just
98 cents) except for two – claims in respect of moneys paid to
Bosveld Automotive Centre
(Prima Force), one for repayment of R23 000
(the charge for the work being R187 285.71) and the other for R24
179.33 (the charge
for the work by Bosveld Automotive Centre being
R196 888.83).
[26] And as the
trial court said, Botha chose his people well: he ensured that those
whom he requested to fill
in tax invoices or sign VAT returns were in
some way dependent on him: friends who were in dire economic straits
like Dauth, and
employees who would obey his instructions
without demur. Another significant aspect is that all the businesses
dealt with each
other, rendering or receiving goods and services. And
several individuals, like Louwrens, were involved in different
capacities
in several of the transactions that facilitated the
frauds. The pattern repeated itself with different friends and
different employees,
but in every case it was Botha who orchestrated
the making of false representations to SARS with intent to defraud,
to their prejudice
and to his benefit.
[27] For each charge
the State adduced documentary proof, sometimes the original documents
and sometimes copies.
Botha’s legal representative in the trial
argued at length that no reliance could be placed on copies. But no
evidence was
adduced by him to show that they were not authentic
copies. And since many of the documents were computer-generated it
cannot be
said that the documents were not the originals. While
clearly it is preferable for original documents to be produced as
evidence,
where this is not possible or practicable, there is no
reason, in the absence of countervailing evidence as to its lack of
authenticity,
not to accept it as the best evidence available.
Moreover, several witnesses testified as to the handwriting on
various documents
– whether their own or Botha’s –
and none of this evidence was countered. I see no reason not to
accept the authenticity
of the copies of tax returns or invoices
introduced in evidence by the State.
[28] The argument
for Botha on appeal was thus reduced to one that he did not know what
case he had to meet at
the trial. As I have said, that is plainly not
the case. He would have known from the charge sheet exactly when and
where each
fraud was allegedly committed, which entities were
involved and the sums involved. He had provided many of the documents
himself
and had filled in parts of some. The oral evidence of those
who had been instrumental in committing the frauds also came as no
surprise to him for they had made statements to the police at the
outset of the investigation and all this evidence was disclosed
to
him. That the State made inaccurate statements as to the nature of a
business entity (whether it was a close corporation or
a company, for
example) or as to the interests in the various entities, is
irrelevant. All the elements of the frauds committed
by Botha –
unlawfully making false representations with the intent to deceive,
to the prejudice of SARS – were alleged
and proved beyond
reasonable doubt.
[29] In my view
Botha was correctly convicted on 71 charges by the trial court.
The high court’s judgment
on appeal must thus be set aside.
That leaves the question of sentence. Botha does not appeal against
the sentence imposed by the
high court, effectively twelve years’
imprisonment, and the State has not argued strenuously that the
reduction to 12 years’
imprisonment was unjustified.
[30] In the
circumstances it is not improper to impose only one sentence in
respect of all the convictions, and
since there is no appeal against
it, it should be left as it stands.
[31]
1 The appeal is successful only to the
extent that the substitution by the high court of convictions on 69
charges of fraud with
a conviction on one charge of fraud is set
aside.
2 The order of the high court is
altered to read as follows:
‘
(a)
Save that the conviction on charge 72 is set aside, the appeal is
dismissed.
(b) The appeal against sentence is
upheld. The sentence is set aside and replaced with a sentence of
twelve years’ imprisonment.
(c) This sentence is deemed to have
commenced on 15 November 2001.’
C H Lewis
Judge of Appeal
APPEARANCES:
For Appellant:
D Bisschoff
Instructed by:
J L Botha
Mokopane
Saffy &
Associates
Bloemfontein
For Respondent:
J H T Schutte
Instructed
by:
Director
of Public Prosecutions
Pretoria
Director
of Public Prosecutions
Bloemfontein