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[2020] ZALMPPHC 25
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Mphanama v S (AA15/2017) [2020] ZALMPPHC 25 (6 May 2020)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
PROVINCIAL DIVISION, POLOKWANE)
CASE NO:
AA15/2017
In the matter between:
AZWIFANELI
GEORGE MPHANAMA
: APPELLANT
And
THE
STATE
: RESPONDENT
JUDGMENT
SEMENYA
J:
[1]
The issue in this appeal is whether the evidence tendered by the
State during the trial was sufficient to establish the guilt
of the
appellant beyond reasonable doubt. The appellant was indicted
together with three others before the trial court on 21 counts.
He
was cited as accused No.1. He was acquitted on all counts except on
count 15 to 18 and on count 21. Counts 15 to 18 were taken
together
for sentence purposes. On these counts the appellant was sentenced to
eighteen months’ imprisonment which was wholly
suspended for 3
years on condition, firstly, that he repays the amount of R3 638.95,
and, secondly, that he is not convicted
of an offence of which
dishonesty is an element and in respect of which he is sentenced to
imprisonment without an option of a
fine. On count 21 the appellant
was sentenced to twelve thousand rand (R12000.00) or six months’
imprisonment. Payment of
the said fine was to be made in specified
instalments. The appeal is against conviction in respect of counts
15, 16, 17, and 21
only.
[2]
In count 15 to 18 the appellant was charged with fraud wherein it is
alleged that he defrauded the Department of Justice and
Correctional
Services by misrepresenting to the said Department that he is
entitled to be compensated for using his motor vehicle
to undertake
official journeys calculated on the basis that he had travelled in a
RAV4 SUV when he had actually travelled in a
Cadillac 2 litre sedan.
In count 21 the appellant was charged with defeating or obstructing
the course of justice in that he had
reduced a traffic fine before
the case was not yet placed before him. The appellant pleaded not
guilty on all charges and elected
not to make any statement during
proceedings in terms of section 115(2) of the Criminal Procedure Act
51 of 1977 (the CPA). It
was further placed on record that the
appellant will not answer any questions that the trial court may put
to him at that stage.
The appellant furthermore did not testify in
his defence. The matter was therefore solely decided on the evidence
as tendered by
the State.
[3]
The common cause and/or otherwise undisputed facts in this matter are
that the appellant was a senior magistrate as well as
the judicial
head of Dzanani Magistrates Court as at the dates of the commission
of the offences he was convicted of. As a magistrate,
the appellant
belonged to a motor finance scheme in terms of which he was entitled
to be compensated for the expenses he shall
have incurred for using
his own motor vehicle to undertake official journeys. The appellant
owned two motor vehicles, a Toyota
RAV 4 and a Cadillac, and had used
both vehicles to undertake official trips but was compensated on the
tariffs that were applicable
for the journeys undertaken in a RAV.
With regard to count 21, the allegations that the appellant had
reduced a traffic fine was
not disputed.
[4]
Three magistrates namely Nditsheni Baldwin Makamela (Makamela), Kwena
Moses Molokomme (Molokomme) and Luxon Ramavhale (Ramavhale),
who were
stationed within the same Sub-Region (cluster) of Thohoyandou as the
appellant, testified with regard to the manner in
which magistrates
motor vehicle finance scheme operates. Their version is to the effect
that in terms of a circular issued
by
the Magistrates Commission, any magistrate who was desirous to
participate in the scheme was required to inform the Sub-Regional
Head about the motor vehicle that he/she intends to use for purposes
of official journeys. This was done by submitting the registration
certificate of the said motor vehicle to the Sub-Regional Head, who
will in turn forward same to the office of the Chief Magistrate.
A
magistrate may use another motor vehicle only on application and
approval by the Sub-Regional Head. This version contradicts
that of
Senior Magistrate Stapelberg who was attached to the Magistrates
Commission as it shall appear clearer later in this judgment.
However, what is common cause in the evidence of all magistrates is
that a magistrate is required to submit claims for compensation
only
on the basis of the actual motor vehicle that he had travelled in.
[5]
The grounds for appeal rests mainly on the following statement as it
appears in the trial court’s judgment:
“
The
evidence in my view calls for an answer from the accused. However,
accepting that each of the counts 9 to 18 is composite claim
of
various trips undertaken the sum of which were on the accused’s
version undertaken with the Cadillac and some with the
RAV 4 it is
impossible on the evidence presented or the evidence of the witnesses
who testified, the magistrate, to determine on
which occasion he used
the RAV 4. I am not prepared to convict the accused on speculation.
However, from December 2008 until March
2009 the accused claimed as
if he used the RAV 4 when he was no longer the owner of the RAV 4 and
of which the vehicle was in the
possession of accused 3.”
[6]
Fraud is defined as the unlawful and intentional making of a
misrepresentation which causes actual prejudice or which is
potentially
prejudicial to another-
see C R Snyman, Criminal Law
sixth edition at page 524 and J R L Milton South African criminal law
and Procedure, 3
rd
volume 2 at 702
. It
was submitted on behalf of the appellant that the paragraph cited in
paragraph 5 above seems to suggest that the trial court
convicted the
appellant solely on the admission that he made in a letter addressed
to the Magistrates Commission. It was argued
that the said admission
alone could not constitute prove of the allegations levelled against
the appellant beyond a reasonable
doubt as is required in a criminal
case. The appellant, however, did not dispute, either by way of
cross-examination or evidence
under oath, the version of Makamela and
other State witnesses that he was driving the Cadillac at all
relevant times, that he had
sold the RAV4 to the 3
rd
accused and that he was no longer in possession thereof during the
period referred to in count 15, 16, 17 and 18. The version put
to
Makamela during cross-examination was that the appellant’s
version was that he had borrowed the RAV4 from the 3
rd
accused and used it in each and every instance because he had not yet
submitted the particulars of the Cadillac to the Sub- regional
Head.
The appellant deemed it not necessary to repeat this version under
oath despite the fact that it was vehemently denied by
Makamela. He
had thereby denied the State the opportunity to test it by way of
cross-examination. This version further contradicts
the admissions
that he had made to the Magistrates Commission.
[7]
With regard to prejudice, Senior Magistrate Stapelberg testified that
in terms of paragraph 8.4101.3.2 of the Departmental Finance
Instruction of the Department of Justice, a magistrate is obliged to
maintain a reliable vehicle to be used for official journeys.
A
magistrate is allowed to utilise another private vehicle if for one
reason or another he cannot use his own vehicle. In that
case the
department is obliged to compensate the magistrate according to the
engine capacity of the vehicle used. The evidence
proved that the
engine capacity of a 200CC Cadillac was lower than that of a RAV4
which is a 1800CC multipurpose vehicle. It further
proved that the
appellant was paid more than what he was entitled to on that basis.
It is for this reason that the trial court
ordered him to repay the
difference. Counsel for the respondent correctly argued that this
difference constituted prejudice on
the part of the Department. In
R
v Heyne and Others
1956 (3) SA 604
(AD)
, it was held that in
order to satisfy the requirement of prejudice, the false statement
must be such as to involve some risk of
harm, which need not be
financial or proprietary but must not be too remote or fanciful to
some person, not necessarily the person
to whom it was addressed. It
cannot be denied that the Department paid more than it was supposed
to due to the misrepresentation
contained in the claim form that were
submitted to it by the appellant. It is for this reason that I find
the appellant’s
argument that the trial court’s finding
that fraud was committed is incredulous and defiant of logic to be
without merit.
[8]
On the count of defeating or obstructing the course of justice, the
appellant contended that the State failed to produce evidence
that
proves that the appellant’s conduct was actually or potentially
detrimental to the administration of justice. According
to C R
Snyman, above on page 327, the elements of the offence are ‘
(a)
conduct, (b) which amounts to defeating or obstructing (c) the course
or administration of justice and which takes place (d)
unlawfully and
(e) intentionally.
’ The uncontested evidence of Herman
Rauvhona Mudau (Mudau) was that he was issued with a written notice
to appear in court
for committing a traffic offence. He was fined
R1000. He took the written notice to the prosecutor with a request
for the reduction
of the said fine. The prosecutor refused to reduce
the amount and wrote the words ‘rejected” across the
written notice
and put his stamp on it. He took the written notice to
the appellant and the latter reduced the fine to R700.00. In
S v
Bazzard
1992 (1) SACR 303
(NC)
it was held that it suffices that
the perpetrator subjectively foresaw the possibility that his
conduct, in the ordinary cause
of events, will lead to obstruction of
the prosecution of the case or the investigation thereof by the
police. It was further held
that the course or administration of
justice which must be obstructed in order to constitute this crime
refers to the process which
is destined to eventuate in a court case
between parties or between the state and its subject-see Snyman at
page 330 paragraphs
7 and 8.
[9]
As a point of departure, it can be safely assumed that the appellant,
as a Senior Magistrate and the judicial head of Magistrate
Dzanani,
was fully conversant with the procedure laid in section 57 of the CPA
which is are follows:
Section
57 - Admission of guilt and payment of fine without appearance in
court
…
(3)
Where-
(a)
a summons is issued against an accused under section 54 and the
public prosecutor of the court concerned, in accordance with
the
directives issued by the National Director of Public Prosecutions
provided for in subsection (11), endorses the summons to
the effect
that the accused may admit his or her guilt in respect of the offence
in question and that he or she may pay a fine
stipulated on the
summons in respect of that offence without appearing in court; or
(b)
a written
notice under section 56 is handed to the accused and the endorsement
in terms of subsection (1) (c) of that section purports
to have been
made by a peace officer, the accused may, without appearing in court,
admit his or her guilt in respect of the offence
in question by
paying the fine stipulated (in this section referred to as the
admission of guilt fine)
either to the clerk of the magistrate's
court which has jurisdiction or at any police station within the area
of jurisdiction of
that court or, if the summons or written notice in
question is endorsed to the effect that the fine may be paid at a
specified
local authority, at that local authority.
(4)
(a)
The summons or the written notice may stipulate that the admission of
guilt fine shall be paid before a date specified in the
summons or
written notice, as the case may be.
(b) An admission of
guilt fine may be accepted by the clerk of the court concerned
notwithstanding that the date referred to in
paragraph (a) or the
date on which the accused should have appeared in court has expired.
(5)
(a)
(i)
Subject to the provisions of subparagraphs (ii) and (iii), an accused
who intends to pay an admission of guilt fine in terms
of subsection
(1), shall surrender the summons or the written notice, as the case
may be, at the time of the payment of the fine.
(ii)
…
(6)
No provision of this section shall be construed as preventing a
public prosecutor attached to the court concerned from reducing
an
admission of guilt fine on good cause shown in writing.
(7)
An admission of guilt fine stipulated in respect of a summons or a
written notice shall be in accordance with the determination
made by
the Minister from time to time in respect of the offence in question,
as provided for in subsection (2).
(8)
An admission of guilt fine paid at a police station or a local
authority in terms of subsection (3) and the summons or, as the
case
may be, the written notice surrendered under subsection (5), shall,
as soon as is expedient, be forwarded to the clerk of
the
magistrate's court which has jurisdiction, and that clerk of the
court shall thereafter, as soon as is expedient, enter the
essential
particulars of that summons or, as the case may be, that written
notice and of any summons or written notice surrendered
to the clerk
of the court under subsection (5), in the criminal record book for
admissions of guilt,
whereupon the accused concerned shall,
subject to the provisions of subsection (9), be deemed to have been
convicted and sentenced
by the court in respect of the offence in
question.
(9)
The judicial officer presiding at the court in question shall examine
the documents and if it appears to him or her that a conviction
or
sentence under subsection (8) is not in accordance with justice or,
except as provided in subsection (6), is not in accordance
with a
determination made by the Minister under subsection (2) or does not
comply with a directive issued by the National Director
of Public
Prosecutions as provided for in subsection (11) that judicial officer
may set aside the conviction and sentence and direct
that the accused
be prosecuted in the ordinary course, whereupon the accused may be
summoned to answer that charge as the public
prosecutor may deem fit
to prefer: Provided that where the admission of guilt fine which has
been paid exceeds the amount determined
by the Minister under
subsection (2), the judicial officer may, in lieu of setting aside
the conviction and sentence in question,
direct that the amount by
which the admission of guilt fine exceeds the said determination be
refunded to the accused concerned.
…
(my
own emphasis)
[10]
It follows from the provisions of section 57(6) and (9) of the CPA
that a magistrate has no powers to reduce a traffic fine
as the
appellant in this case did. Such powers rest solely with the
prosecutor. A judicial officer’s powers in respect of
written
notices are limited to those provided for in sub- section (9) only.
The trial court’s finding that the conduct of
the appellant was
irregular can therefore not be faulted. The respondent submitted that
the appellant was aware, by virtue of his
position as a magistrate,
that his conduct in reducing and endorsing the admission of guilt
will result in finalisation of the
matter. This argument stems from
sub-section (8) which provides that the accused shall be deemed to
have been convicted and sentenced.
The respondent further argued, in
line with the decision in
S v Burger
1975 (2) SA 601
(C)
, that
in so doing, the appellant foresaw the possibility that his conduct
might defeat the administration of justice. I am in agreement
with
the argument proffered by the respondent in this regard. The
appellant was fully aware that the prosecutor has rejected Mudau’s
plea to have the fine fixed by the peace officer reduced. A
reasonable conclusion that can be arrived at is that the prosecutor,
as the
dominis litis
, desired that Mudau should pay the whole
amount or go to court to argue the matter. This is common practice
and the appellant cannot
argue that he was not aware of this fact. It
is for this reason that I agree with counsel for the respondent’s
contention
that the appellant subjectively intended to obstruct the
process which was destined to eventuate in a court case between the
State
and Mudau-see Bazzard above.
[11]
The appellant contended that the possibility that a fine which would
have been lesser than the amount paid by Mudau and/or
that a
suspended sentence would have been imposed had the prosecution
proceeded with the trial cannot be ruled out. I am of the
view that
this argument cannot stand. This aspect was not raised during the
trial of the matter and cannot be raised at this stage.
In any event,
the nature of the offence the appellant was convicted of in count 21
is aimed at punishing an unlawful and intentional
conduct that has
the effect of preventing the prosecution from proceeding with the
trial. What the outcome of the trial would have
been, had it
proceeded, is therefore irrelevant. The trial court has correctly
stated that the State was precluded from recharging
Mudau as he was
deemed to be convicted and sentenced as envisaged in sub-section (8)
above.
[12]
With regard to the contention that the State failed to prove the
offences beyond reasonable doubt, the respondent argued that
the
trial court has correctly found that there was a
prima facie
case that called for an answer from the appellant as at the close of
the State’s case. The cases of
S v Boesak
2001 (1) SACR 633
(SCA), S v Osman and Another v Attorney-General Transvaal
1998 (4) SA
1224
(C) and S v Hlongwa
2002 (2) SACR 37
(T)
settled the issue
with regard to whether the court may to convict the accused person in
circumstances where the accused has failed
to testify at the close of
the case for the State in the face of a
prima facie
case. In
the instant matter, the trial court’s findings that the
evidence of the State alone proved the guilt of the appellant
on
count 15 to 18 and on count 21 is correct. There is no reason to
interfere with the finding. A conclusion that the accused was
no
longer in possession of the RAV4 at relevant times cannot be faulted.
The same applies to the evidence that proved that he intended
to
obstruct the course of justice.
[13]
In the result I make the following order:
The
appeal against the conviction in count 15, 16, 17, 18 and 21 is
dismissed.
M V SEMENYA
JUDGE OF THE HIGH
COURT;
LIMPOPO DIVISION
E MAKGOBA
JUDGE PRESIDENT
LIMPOPO DIVISION
M F KGANYAGO
JUDGE OF THE HIGH
COURT
LIMPOPO DIVISION
APPEARANCES:
FOR
THE APPELLANT
: ADV M S MONENE
INSTRUCTED
BY
:T N RAMASHIA ATTORNEYS
FOR
THE RESPONDENT
: ADV N F DOUBADA
(SPECIALISED
COMMERCIAL CRIME UNIT.)
RESERVED
ON
:
13 MARCH 2020
JUDGMENT
DELIVERED : 06 MAY 2020