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[2018] ZAGPJHC 604
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Nkosi v S (A276/2015) [2018] ZAGPJHC 604; 2019 (1) SACR 570 (GJ) (2 November 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: A 276/2015
DPP
Ref no : 10/2/5/2-(2015/238)
In
the matter between:
SIBUSISO
ISAAC
NKOSI APPELLANT
And
THE
STATE RESPONDENT
JUDGMENT
WINDELL,
J:
INTRODUCTION
[1]
The appellant, a 76 year old man, was convicted in the
Boksburg Regional Court on 29 May 2015 of one count of fraud and two
counts
of theft.
[2]
He was sentenced to 10 years imprisonment on the fraud charge (Count
1), five years imprisonment on the one theft charge (Count
2), and
three years’ imprisonment on the other theft charge (Count 3).
The terms of imprisonment were wholly suspended for
a period of five
years on condition that he refunds the respective complainants.
[2]
He failed to comply with the suspensive conditions and the State
applied for the putting into operation of the suspended sentences.
The appellant then applied for leave to appeal his conviction and the
court
a quo
subsequently granted the appellant leave to appeal
his conviction. The appellant is currently on bail pending the
appeal.
[3]
The appellant’s main contention during the trial and during the
hearing of the appeal was that this was a civil matter
and that he
still intended on delivering on his promises as soon as other third
parties had performed their obligations.
COUNT
1
[4]
Mrs Constance Malatjie
is
the complainant in Count 1 (the fraud charge). In 2009 she received a
contract to transport coal to and from the mines and she
needed
trucks. She was not creditworthy and could therefore not approach a
financial institution for credit. She got word that
the appellant
would be able to assist. They met and the appellant represented to
her that he would be able to provide her with
trucks. He told her
that he was in a partnership with Mr Jurgens from a business by the
name of Truck Den, and he would be able
to supply her with 20 trucks
if she paid a deposit of R 700 000 (it was initially R 1,5
million but Ms Malatje only had (R
700 000). Mr Sicelo Nkosi was
present when the appellant made the representation and confirmed Ms.
Malatji’s evidence.
Ms Malatji wanted to see the trucks
before she made the deposit and they subsequently met at Truck Den
where she was introduced
to Mr Jurgens who told her that he and the
appellant were partners. She was shown the trucks and was told that
the trucks would
be ready for delivery within two weeks as the
hydraulics needed to be fitted. She was also given a spreadsheet
which contained
all the particulars of the trucks she was buying
(chassis number, registration number, type of truck and trailer
registration numbers).
As a result of the representation she
deposited R 700 000 in the appellant’s son’s
account. Mr Sicelo Nkosi and
Mr Babajide accompanied her to Truck Den
and were present when the trucks were shown to Ms Malatji and the
promise of delivery
within two weeks was made. Ms Malatji testified
that
she only paid the deposit because she
trusted the appellant and believed that he would deliver the trucks.
[5]
After two weeks the trucks were not delivered and appellant told Ms
Malatji that they were still busy with the fitting of the
hydraulics.
Three months later and the trucks had still not been delivered.
When she demanded back her money the appellant
told Ms Malatji that
Mr Jurgens sold her trucks to a third party without informing him but
that she should not worry as he would
be able to get other trucks. Ms
Malatji insisted on some sort of proof that she paid the R700 000
and as a result a written
“Vehicle Lease Agreement” was
provided wherein it was specifically noted that she has paid an
amount of R 700 000
as deposit for 20 trucks with 20 trailers.
The so called lease agreement did not materialise and in February
2010 the appellant
signed a “Debt Settlement Agreement”
in terms of which he had to pay Ms Malatji R 750 000 on or
before February
2011. For the next four years Ms Malatje attempted to
get back her money but despite many efforts and all sorts of schemes
involving
the appellant and third parties, the money was not paid
back. In 2014 Ms Malatje laid a criminal charge against the
appellant.
COUNT
3
[6]
During February 2010 the complainants in Count 3,
Mr
Thebe Mzansi met with the appellant and Mr Jurgens at Truck Den. They
were interested in buying two trucks and after discussions
with the
appellant they paid an amount of R130 000 into the account of
Mannel Enterprises (an account which the appellant
had access to) as
a deposit.
The trucks were never delivered
to them.
COUNT
4
[7]
The complainant in Count 4, Mr Emmanuel Makhubela also met with the
appellant during September 2009 and paid an amount of R75 000.00
into the account of Mr Jurgens as a deposit to buy a truck. Mr
Jurgens then transferred the money to the appellants account. He
was
told that the truck would be delivered within 48 hours of the deposit
being paid, otherwise he would be refunded. He never
received the
truck. The money was used by the appellant for personal expenses.
[8]
The appellant testified and denied that he
told any of the State witnesses that he is in partnership with Mr
Jurgens. He explained
that he was only a scout for Mr Jurgens and as
Ms Malatji wanted trucks and Mr Jurgens sold trucks, he only brought
the parties
together. He admitted receiving the money from the
respective complainants and admitted that the trucks were never
delivered.
He further gave the court drawn out explanations of
letters of credit, which were never put to the complainants during
cross examination.
EVALUATION
[9]
The court
a
quo
found that the State witnesses were honest and reliable and they
corroborated one another on all material aspects. The trial court
had
the advantage of observing, hearing and appraising the witnesses and
was impressed by their evidence. In
S
v Hadebe
[1]
it was held that the credibility findings and findings of fact of the
trial Court cannot be disturbed unless the recorded evidence
shows
them to be clearly wrong. In analysing the judgment of the magistrate
and the conclusions reached by him, I can find no reason
to interfere
with the court a quo’s factual and credibility findings.
[10]
The appellant was an extremely poor witness and contradicted himself
on several material issues.
He also deviated materially from
the version that was put to the State witness. The version that he
gave during cross examination
and the version given under oath are
irreconcilable.
During cross examination he again
changed his version and introduced a completely new defence namely
that he was entitled to keep
the money that he received from the
complainants as it was his fee for obtaining a letter of credit.
[11]
It is trite that the State must prove its case beyond reasonable
doubt and if the appellant’s version is reasonable possibly
true he is entitled to an acquittal. The court must apply its mind
not only to the merits and demerits of the State and defence
witnesses, but also to the probabilities of the case. The court
a
quo
evaluated all the evidence and
rejected the appellant’s version as false. In
my
view, the magistrate was correct in rejecting the appellant’s
version as false as his
evidence was found
wanting in several respects.
[12]
According to Snyman
[2]
, ‘fraud’
is ‘
the
unlawful and intentional making of a misrepresentation which causes
actual prejudice or which is potentially prejudicial to
another
’.
In order to secure a conviction on fraud the State had to prove (i) a
misrepresentation; (ii) prejudice or potential
prejudice; (iii)
unlawfulness and (iv) intention. The appellant misrepresented to Ms
Malatji that if she paid R 700 000 she
will receive trucks
within two weeks of her making the payment. She was even provided
with a list of the trucks she supposedly
bought. As a result of the
misrepresentation she was induced to pay the amount of R 700 000.
The representation was clearly
false as the trucks were not delivered
as promised and she suffered prejudice as a result.
[13] A person commits
theft by false pretences if he or she unlawfully and intentionally
obtains moveable, corporeal property belonging
to another with the
consent of the person from whom he or she obtains it, such consent
being given as a result of a misrepresentation
by the person
committing the crime, and appropriates it.
All
cases of theft by false pretences are at the same time also fraud
[3]
.
As
far as the theft charges are concerned
the
onus rests on the State to prove an intention to steal (
animus
furtiva
)
beyond reasonable doubt.
[4]
In
S
v Boesak
[5]
it was held as follows:
‘
Theft,
in substance, consists of the unlawful and intentional appropriation
of the property of another (S v Visagie
[1990] ZASCA 124
;
1991 (1) SA 177
(A) at 181I).
The intent to steal (animus furandi) is present where a person (1)
intentionally effects an appropriation (2) intending
to deprive the
owner permanently of his property or control over his property, (3)
knowing that the property is capable of being
stolen, and (4) knowing
that he is acting unlawfully in taking it (Milton South African
Criminal Law and Procedure vol II 3rd ed
at 616).’
[14]
The court
a
quo
did not deal with the essential
elements of theft in his judgment. It should have been clear to the
magistrate after hearing the
evidence that the intention to steal and
the element of wrongfulness (“wederegtelikheidsbewussyn”)
were in dispute.
It is common cause that the appellant used the money
that was paid into his account as a deposit for trucks to pay
personal expenses.
The question the court
a
quo
should have asked in the
circumstances was the following: Did the appellant know that he was
acting unlawfully in using the money
that was paid into his account?
It is clear from the evidence that the
appellant had no permission to keep the money of the complainant
after he failed to deliver
the trucks. The agreement was that the
money would be paid back to the complainants if the trucks were not
delivered within a specified
time. By utilizing the money and by
failing to pay it back after he failed to deliver the trucks, the
appellant effectively excluded the complainant’s
control over it. The appellant’s conduct was clearly unlawful
and the
only reasonable conclusion that can
be made in the circumstances is that the appellant had the intention
to permanently deprive
them of their money.
[14]
In the result the following order is made:
1. The appeal against
conviction is dismissed.
2. The appellant bail is
revoked and is ordered to report to the clerk of the court Boksburg
within 72 hours of this order.
_____________________________
L. WINDELL
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
I agree.
_____________________________
A.
P. BEZUIDENHOUT
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Counsel
for the appellant: Mr Nkuna
Instructed
by: Nkuna Attorneys
Counsel
for the respondent: Advocate H.H.P. Mkhari
Instructed
by: Office of the State Attorney, Johannesburg
Date
of hearing: 29 October 2018
Date
of judgment: 2 November 2018
[1]
1997
(2) SACR 641
(SCA) at 645 G – H.
[2]
Snyman CR
Criminal
Law
5ed (Durban: Lexis Nexis 2008) at 531
[3]
Davies
1928 AD 165
[4]
S v
Luther
1962 (3) SA 506
A;
S
v Qumbella
1966(4) SA 356 A;
S
v Hartyani
1980(3) SA 613 T.
[5]
[2000] ZASCA 112
;
2000
(3) SA 381
(SCA) at para.[97].