Singh v S (367/09) [2009] ZASCA 164; [2010] 2 All SA 189 (SCA) (30 November 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2009
>>
[2009] ZASCA 164
|

|

Singh v S (367/09) [2009] ZASCA 164; [2010] 2 All SA 189 (SCA) (30 November 2009)

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 367/09
In
the matter between:
VERONICA SINGH
APPELLANT
v
THE STATE
RESPONDENT
Neutral citation:
Singh
v The State
(367/2009)
[2009] ZASCA 164
(
30
November 2009).
Coram: Nugent, Mlambo JJA et Tshiqi
AJA
Heard: 10 November 2009
Delivered: 30 November 2009
Summary: Fraud – factual findings – no reason to
interfere.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
KwaZulu-Natal
High Court, (Jappie J, Kruger AJ sitting as court of appeal).
The following order is made:
The appeal is dismissed.
________________________________________________________________
JUDGMENT
________________________________________________________________
MLAMBO JA
(Nugent JA, Tshiqi
AJA concurring)
[1] The appellant appeared in the Pinetown Regional
Court facing 13 counts of fraud. She was convicted on eight of those
counts
and sentenced to three years’ imprisonment on four of them
(counts 3, 4, 6 and 8) taken together for sentence purposes. On the

other four counts (counts 9, 10, 11 and 13), also taken as one for
sentence purposes, she was sentenced to three years imprisonment,
two
of which were suspended for five years on condition that she was not
convicted for fraud or theft committed during the suspension
period.
In an appeal to the KwaZulu-Natal High Court (Jappie J and Kruger AJ)
she was successful in having her conviction on four
of those counts
reversed (counts 3, 9, 10 and 11). The high court also set aside her
sentence and in its stead imposed a sentence
of three years’
imprisonment, which was wholly suspended on condition that she was
not convicted of an offence of which dishonesty
is an element,
committed during the period of suspension. She now appeals to this
court with leave of the high court against her
conviction on the
remaining four counts (counts 4, 6, 8 and 13).
[2] The appellant is alleged to have committed the
offences between May and August 1999 when she was the prosecutor of
the Pinetown
traffic court also referred to as Court D. The charge
sheet alleged that she took money from accused persons appearing in
Court
D as payment towards fines imposed against them and that she
failed to pay the money over to the state which she appropriated for

herself.
[3] I set out briefly the background circumstances of
each of the remaining counts on which she is appealing. I refer to
the counts
as they were in the trial. The first one, count 4, relates
to an alleged meeting between the complainant, Mr Bala Govender

and the appellant on 28 June 1999 at the Pinetown Magistrates Court.
Mr Govender testified that he had met the appellant in Court
D on
that day which was his trial date for a traffic infraction for which
he was liable to a R100 fine. He testified that he informed
the
appellant that he wished to pay a reduced fine as he was unemployed.
To this end he offered an amount of R50 as payment of
that fine which
the appellant accepted. When he asked her for a receipt she wrote
‘withdrawn’ on the summons in his possession.
The appellant’s
version on this count is a bare denial of receiving any money from
Mr Govender.
[4] The first issue is to consider whether the meeting
alleged by Mr Govender did in fact take place. The striking feature
of Mr
Govender’s testimony is that he was certain that he was in
Court D when the appellant introduced herself to him and others
sitting
in that court and invited those who wanted to pay their fines
to come to her office and that this is what led him to her office.
Mr
Govender’s testimony was criticized for his failure to mention that
she was heavily pregnant when they met. It was also asserted
that
Mr Govender’s identification of the appellant as an Indian
woman should be discounted because she was one of four Indian

prosecutors working at Pinetown Magistrates Court.
[5] In this regard the appellant denied that she had
ever met Mr Govender and said that she saw him for the first time in
court
when he testified. This was a strange development in her case
as earlier in the cross-examination of Mr Govender the
appellant’s
counsel had put it to this witness that when he met the
appellant she endorsed his summons as withdrawn because the control
documents
that had to go with the docket were not found. The
significance of this cross-examination is that it put beyond doubt
that the
appellant did indeed meet with Mr Govender, and that she did
in fact endorse his summons as stated by him. In my view, the
appellant
cannot extricate herself from having met Mr Govender. In
this regard it is significant that his summons was, as an objective
fact,
endorsed as withdrawn. The appellant was the prosecutor of
Court D at the material time and nothing was advanced from her side
to suggest that she is not the person who endorsed the summons.
[6] It is correct that Mr Govender was a single witness
on this count. This, however, does not mean he should be disbelieved.
In
my view, other than the appellant’s criticism of his failure to
note her advanced pregnancy, she could only advance a bare denial

against his charge that she took money from him. His expectation and
request for a receipt is very plausible. He had just given
money to a
state official and clearly a receipt had to be issued, in his mind
that is. In my view, the objective fact of the meeting
between the
two and the endorsement of Mr Govender’s summons show that he was
an honest and truthful witness and that there can
be no doubt that
the appellant is the person who took the money from him.
[7] In relation to count six, the version of the state
was that the complainant, Mr Govindsamy Naidu, had met the appellant
on 12
July 1999 seeking the reduction of a fine imposed on his
employer, Mr Desai, as well as one, Mr Basnath. Mr Naidu
testified
that the appellant refused to reduce the fines but
requested him to pay the money that he had in his possession. He
testified that
she informed him to return the next day for the
receipts of the money and that when he returned the next day he
waited for her
from about eight in the morning till about eleven when
he left after failing to locate her. The issue regarding this count
is whether
the meeting between Mr Naidu and the appellant took place
on the 12
th
or on
the 13
th
of July
1999 and whether indeed she also accepted money from him.
[8] The appellant’s version was to admit meeting Mr
Naidu but deny that she could have met him on the 12
th
of July 1999 apparently because that was the trial date of the
Basnath matter. She further stated that the fine regarding Mr Desai

had already been paid by that time. She testified that on the 13
th
of July 1999 she was sick which was wont to happen because she was
having a problematic pregnancy. Her version is that she only
arrived
at work at about lunchtime. On this version, therefore, there could
never have been a meeting between her and Mr Naidu
on that day.
This being the case it appears that the only conclusion as to when
the two could have met is the 12
th
of July 1999. I say this in view of the fact that the appellant does
not deny meeting and discussing the issue of the fines with
Mr Naidu.
The fact that he returned the next day and waited for her for close
on to three hours goes a long way towards showing
that he is truthful
and honest when he said that after he handed over money to her, she
told him to return the next day for his
receipts. Her version that
she came to work at lunch time corroborates his version that she was
not there earlier on the 13
th
July.
Naidu’s version of having met her a day before when he made the
payment is fortified by his return on the 13
th
(the next day) for his receipts.
[9] Whilst it is correct that his allegation of paying
the Desai fine was disproved the same cannot be said about the
Basnath’s
R100 Naidu alleges to have paid her on the 12
th
July. The sequence of events is in his favour objectively viewed. As
a matter of logic Mr Naidu could never have known, when he
testified
about waiting for her on the 13
th
,
that she would in fact confirm not being there at that time on that
day. On this count too the singular feature that stands out
in the
appellant’s version is her bare denial of taking money from him. In
my view, the criticism levelled at Mr Naidu does nothing
to displace
his version of returning on the 13
th
July for his promised receipts and leaving after a three hour wait in
vain for her. That being the case it appears clear that the
state on
this count too proved beyond reasonable doubt that the appellant had
received the money from the complainant, Mr Naidu.
[10] Count eight relates to the complainant, Mr Rafik
Dzanibe, who testified that he paid an amount of R200 to the
appellant
as payment for two traffic fines. He testified that he
asked her for a receipt and she endorsed both his traffic summonses
as withdrawn.
When he testified in court and when he was asked to
identify the person whom he dealt with he stated, looking at the
appellant,
that she appeared to be that person. This has been latched
onto in this appeal as an indication that he was unsure of his
identification
of the appellant as the person to whom he handed over
the money. Mr Dzanibe testified that when he tried to gain entrance
to her
office on the day he alleges he paid the fines, he was told to
wait outside. He testified, and this was not disputed, that whilst

waiting, a gentleman left the office of the prosecutor and that is
when he went in. He identified a man sitting in court, when
he was
testifying, as the person who left the office the day he met her and
made the payments. It turned out that the person he
identified in
court was in fact the appellant’s husband. It is also common cause
that the appellant’s husband regularly visited
her at work because
of her problematic pregnancy. This fact is critical in collaborating
Mr Dzanibe’s version that the prosecutor
he went to discuss the
matter with was the appellant. Who else, one asks, would her husband
have visited other than her. This,
in my view, corroborated his
identification of her as the prosecutor he dealt with.
[11] Much has been made of the fact that he mentioned
that there was a photocopier in the prosecutor’s office that he
went into.
This was on the basis that there were no photocopier
machines in any of the prosecutors’ offices in the Pinetown Court.
To me,
that is a neutral fact and the critical issue was to determine
whether the appellant and Mr Dzanibe had met and whether she had

taken money from him. Other than the criticism levelled at him for
mentioning a photocopier in her office and failing to notice
her
pregnancy, there is nothing other than a bare denial once more, to
gainsay his assertion of paying her. He was by all accounts
an honest
and truthful witness and his identification of the appellant’s
husband was by no means fortuitous. In my view, the
state on this
count, too, proved beyond reasonable doubt that the appellant was the
person that dealt with Mr Dzanibe and who accepted
money from him.
[12] This leads me to count 13. The complainant, Mr
Poobalan Naidoo, testified that he met the appellant as the
prosecutor of Court
D and paid an amount of R100 to her as a reduced
fine on 29 July 1999. The appellant’s version is that she could not
have met
him on the 29
th
July as she had already been replaced at that time. She, however, did
not dispute having a conversation with this complainant but
disputed
taking money from him. The strange feature of this part of her case
though is that despite this admitted discussion between
her and
Mr Naidoo, being put to him under cross-examination, she
disavowed ever meeting him when she testified. Furthermore,
her
version that she could not have met him on the 29
th
July because she had been replaced does not assist her. Ms van der
Bergh, who took over from her, testified that the appellant
was
around for two more days from the 28
th
July, handing over to her and showing her around. Here, as with the
other counts, the identification of the appellant as the Court
D
prosecutor proves to be her Achilles heel. Mr Naidoo was unshaken
that she is the person he paid the money to and in my view
he, like
the other complainants, had no reason falsely to implicate her. He
was clearly an honest and truthful witness. The appellant’s

version, also reliant largely on a bare denial, must similarly be
rejected.
[13] Clearly therefore, on the assessment of the
evidence led on each individual count it is in my view clear that the
state succeeded
in proving the guilt of the appellant beyond
reasonable doubt. The trial court, in particular, which went into
elaborate detail
on each of the counts on appeal, was correct in
convicting the appellant.
[14] Ordinarily this would be the end of the matter. I,
however, think that it is prudent even though not strictly necessary
to
consider a separate but related aspect in this case. This relates
to the fact that on the four counts that came on appeal to this
court
the appellant denied receiving money from the complainants. It is
true, however, that she did accept money from accused persons
in the
course of her work as prosecutor of Court D. This much she
attested to when she testified, as part of how she went
about doing
her work. Other court personnel also confirmed this. In this regard,
if one considers all the evidence led even in
respect of the counts
on which her appeal was successful in the high court it was clear
that she had received money in all those
counts. This shows in no
uncertain terms that the practice of receiving money from the public
was a practice that the appellant
had been involved in. I mention
this for the simple reason that viewed within this context it was no
accident that the complainants
in the counts before us implicated her
as the person who took money from them.
[15] The appeal is dismissed.
________________
D MLAMBO
JUDGE OF APPEAL
APPEARANCES:
COUNSEL FOR APPELLANTS: K J Kemp SC
INSTRUCTED BY: Prakash Kusial Attorneys,
Durban
CORRESPONDENT: Honey Attorneys, Bloemfontein
COUNSEL FOR RESPONDENT: S Ramouthar
INSTRUCTED BY: National Director of Public Prosecutions,
Pietermaritzburg
CORRESPONDENT: National Director of Public Prosecutions,
Bloemfontein