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[2018] ZAFSHC 36
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Nakedi v S (A173/2016) [2018] ZAFSHC 36 (29 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: YES
Appeal
Case No:
A173/2016
In
the matter between:
LEHLOHONOLO
MOTSOASELE PERCIVAL
NAKEDI
Appellant
and
THE
STATE
Respondent
JUDGMENT
CORAM:
DAFFUE J
et
NAIDOO J
HEARD
ON:
7 &
8 AUGUST 2017
DELIVERED
ON:
29
MARCH 2018
JUDGMENT
BY: S NAIDOO, J
INTRODUCTION
[1]
The appellant was charged in the Regional Court, Bloemfontein as
follows:
1.1
Count 1 – Fraud;
1.2
Count 2 – Corruption in contravention of section 1(1)(b) read
with sections 2 and 3 of the Corruption
Act 94 of 1992;
1.3
Corruption in contravention of section 3(a)(ii), read with
sections
1
,
2
,
20
,
24
,
25
and
26
of the
Prevention and Combating of Corrupt
Activities Act 12 of 2004
, alternatively, receiving an unauthorised
gratification by a person who is party to an employment
relationship, in contravention
of
section 10(a)
, read with 1, 2, 20,
21, 25 and 26 of the
Prevention and Combating of Corrupt Activities
Act 12 of 2004
;
1.4
Money Laundering in contravention of the provisions of section 4 of
the Prevention of Organised Crime Act
121 of 1998 (POCA).
The
accused pleaded not guilty to all counts and after a lengthy trial,
was convicted on counts 1, 2 and 4. He was found guilty
on Count 3
and not guilty in respect of the alternative thereto. He was,
sentenced as follows:
Count
1 - Ten (10) years’
imprisonment
Count
2 - Eight (8)
years’ imprisonment
Count
3 - Eight (8)
years’ imprisonment
Count 4 -
Seven (7) years’ imprisonment,
suspended
for
three years on condition that the appellant is not convicted of
contravening section 4(b) of the POCA, fraud, theft or attempted
theft, within the period of suspension. The sentences in
respect of counts 2 and 3 were ordered to run concurrently with
that
in respect of count 1.
The matter came before
us, with the leave of the court
a quo,
on appeal against the
convictions and sentences. The appellant was represented by Adv GI
Hulley SC, with Adv CJ Smith, while the
respondent was represented by
Adv J De Nysschen.
BACKGROUND
[2]
The appellant started his tenure with the Mangaung Local Municipality
(MLM) in March 2003, when he was appointed its General
Manager:
Mechanical Services. A few years prior to this, MLM had put in place
a vehicle monitoring and tracking system. A
call was made to
the public for monitoring systems and several companies responded.
Ultimately three companies were shortlisted
and invited to
participate in live demonstrations of their products, which took
place from 1999 to 2001. These were SMS Technologies,
Taco-log and
Electro-tech. As part of his duties, when he took up his position as
General Manager, the appellant was tasked with
finalising the
monitoring system.
[3]
A company called Sitech Systems (Pty) Ltd (Sitech) made contact with
MLM in 2003, shortly after the appellant’s appointment,
regarding management of their fleet of vehicles, and offered a
vehicle tracking/monitoring product. A contract was concluded with
Sitech and their tracking devices were fitted into motor vehicles
belonging to MLM. Sitech, which was not one of the original three
companies mentioned in paragraph 2, is a Gauteng-based company and,
as such, apparently required a local partner in order to implement
the contract in the Free State. For this purpose, an entity called
Sinako Property Solutions CC (Sinako) was appointed.
[4]
The appellant requested Willem Pretorius (Pretorius), a manager in
the Mechanical Services Division of MLM, to prepare and submit
a
report to him regarding the vehicle monitoring system. Pretorius
prepared the report and submitted it to the appellant, and such
report did not include Sitech. The report was addressed to the
Executive Director, Mr Mohlokoane. The appellant did not submit
the
report to the Executive Director.
It
is common cause between the parties that Ms Brigette Silwana (Mrs
Silwana) was at that stage the sole member of Sinako and she
is the
wife of Mzwandile Silwana (Mr Silwana), who was the Executive
Director of Strategy and Transformation at MLM. It is also
common
cause that Mr Silwana was the sole member of an entity known as
Sinani Management Solutions CC (Sinani).
[5]
The basis of the state’s case against the appellant is that he
and Mr Silwane formed a corrupt relationship and acted
in furtherance
of the common purpose of liaising with Sitech and being instrumental
in appointing Sitech and Sinako as service
providers to MLM, for the
installation and maintenance of motor vehicle tracking devices in
respect of motor vehicles belonging
to MLM. This resulted in MLM to
suffering actual or potential prejudice by awarding a tender to
Sitech, resulting in the conclusion
of a contract or contracts with
Sitech and paying to it an amount of at least R5 347 056.57. The
state also alleges that the appellant
and Mr Zwandile Silwane
unlawfully and corruptly benefitted from such contracts, as Sitech
paid an amount R532 624.00 to Sinako.
The appellant did not dispute
receiving large amounts of money from Sinako and Sinani. I will
return to this later.
[6]
The state called a large number of witnesses and it is not
necessary to traverse the evidence of each of them. At the beginning
of the trial, particularly, during the testimony of Mr Fourie, the
forensic auditor, the prosecutor indicated that he will be leading
hearsay evidence, as Fourie’s report was based on documents
gathered and collated by other people. The state did not apply
at the
end of its case to have the hearsay evidence admitted, but did so at
the end of the case. The accused, who was represented
by a Mr Johnson
at the trial, testified in his defence, without making an application
for his discharge at the end of the state
case. It is also noteworthy
that the authenticity of the documents relied upon by the state was
not placed in issue by the defence.
[7]
Mr Hulley raised a number of points in support of the appeal against
the convictions and sentences of the appellant. I will
deal with the
most pertinent of those. He argued that the appellant’s right
to a fair trial was infringed by the admission
of the hearsay
evidence, without such evidence having been properly dealt with. His
argument was that the court committed a gross
irregularity by not
making a ruling on the admissibility of such evidence at the end of
the state case, as the state failed to
make application for the
admission of such evidence. He argued further that if the court had
properly considered and disallowed
such evidence, as it should have
done, there would have been insufficient evidence upon which the
court could convict the appellant
and he ought to have been granted a
discharge in terms of section 174 of the Criminal Procedure Act 51 of
1977 (the CPA).
[8]
The other point raised by Mr Hulley is that the handing up of a large
number of documents by the state, without calling witnesses
to prove
their authenticity and then leaving it to the defence to challenge
the authenticity of such documents, offends against
the right to a
fair trial enshrined in section 35(3)(h) of the Constitution. The
state should seek the consent of the defence for
the handing up of
such documents, failing which, the state must prove the authenticity
of same. The court must be left in no doubt
that the documents have
been admitted.
[9]
Regarding the hearsay evidence, the state, indeed, did not make
application at the end of its case for the admission of such
evidence
and the court did not consider this aspect at the end of the state
case. Mr Fourie compiled an extensive report based
on some 900 000
documents seized by the National Prosecuting Authority (NPA) in the
course of its investigation of this and other
matters. Mr Fourie
explained in detail the manner in which the documents were scanned,
collated, categorised and numbered. He was
not involved in the
scanning and compiling of the exhibits, which was done by the
auditing firm KPMG. I should perhaps mention
that at the end of Mr
Fourie’s evidence, Mr Johnson asked for a postponement to
consider the voluminous documents handed
in and the extensive
evidence presented by Mr Fourie, before he could cross examine him.
The matter was postponed for six months
after which Mr Fourie was
cross-examined. Mr Johnson said nothing about the authenticity of the
documents during or after cross-examining
Mr Fourie, nor did he raise
the issue of the inadmissibility of the hearsay evidence. The
appellant then testified, approximately
one year after the state
closed its case. There was no application for a discharge in terms of
section 174 of the CPA, before the
appellant testified. One can only
conclude that there was a conscious decision by the appellant, duly
advised by Mr Johnson, not
to make such an application
[10]
When faced with hearsay evidence, a court is obliged to carefully
scrutinise such evidence to ensure that its admission does
not
infringe on the accused’s constitutionally protected rights,
rendering the trial unfair. Both the state and defence referred
to a
number of cases with regard to how hearsay evidence should be
approached by a court and the admissibility thereof. The provisions
of section 3 of the Law of Evidence Amendment Act 45 of 1988 (the
Evidence Act), also prescribe the trial court’s approach
in
this regard. The matter of
S
v Ndhlovu and Others 2002(2) SACR 325 (SCA)
sets
out useful guidelines on how to deal with hearsay evidence. At para
18, the court held that the accused should not “
be
ambushed by the late or unheralded admission of hearsay evidence
”.
The court emphasised that the prosecution must, before closing its
case request the court to rule on the admissibility
of the hearsay
evidence “
so
that the accused can appreciate the full evidentiary ambit he or she
faces”.
[11]
In the present matter, the prosecutor did not request the court to
make a ruling on the hearsay evidence led and the court
did not deal
with this issue, at the end of the state’s case. This does
amount to an irregularity, but it is also well established
in our law
that not every irregularity or misdirection necessarily renders a
trial unfair. Fairness of the trial does not mean
fairness only to
the accused. It means fairness to the public who is represented by
the prosecution. Therefore a determination
of fairness involves a
consideration of the totality of evidence, including the effect of an
irregularity on the fairness of the
trial.
[12]
The introduction of section 3 of the Evidence Act was to mitigate the
rigidity and inflexibility of the common law principles
relating to
hearsay evidence, hence section 3(1)(c) allows the court to consider
a number of factors to determine if the interests
of justice will be
served by the admission of hearsay evidence. In my view this applies
in a large measure to this matter and the
trial court clearly adopted
the approach of evaluating the totality of evidence. Mr Fourie’s
evidence, as I indicated earlier,
was a summary of the findings that
emerged from hundreds of thousands of documents. His evidence was in
fact corroborated by a
number of the other state witnesses such as
Mohlokoane, Pretorius and Killops.
[13]
During his oral address to court Mr Hulley, on being asked which of
the documents referred to by Fourie were being disputed,
indicated
that he had no quarrel with those aspects of Fourie’s evidence
which were corroborated by the other state witnesses
who testified.
It would appear therefore, that the dispute relates largely the bank
statements relating to the various bank accounts
relevant to this
matter, that were investigated, (such as those of MLM, Sitech, Sinako
and Sinani) as well as the registration
documents relating to Sinako
and Sinani.
[14]
The trial court placed little or no reliance on these documents and
focused on the
viva
voce
evidence of the other state witness in arriving at the conclusions it
did. In my view this approach cannot be faulted as the appellant
did
not dispute or seriously place in issue the documentary hearsay
evidence. There was also no attack on the authenticity of the
documents. In my view, where evidence by one party is allowed
provisionally, the opposing party cannot simply adopt a supine
approach,
by saying and doing nothing, and then expect or even hope
that the court will leave such evidence out of account. This is
particularly
so in view of the appellant being represented by a
seasoned and competent legal practitioner in the form of Mr Johnson,
who did
a very good job of presenting the appellant’s case. The
court clearly concluded that such hearsay and documentary evidence
was not disputed by the appellant.
[15]
I return to the reports written by Pretorius and the appellant,
mentioned in paragraph [4] above. As indicated, Pretorius prepared
a
report on the progress and outcome of the Vehicle Monitoring System,
at the behest of the appellant, who was his superior officer.
This
report was dated September 2003 and was addressed to Mr George
Mohlokoane, the Executive Director, Infrastructure and Mechanical
Services and who was the appellant’s senior. The report was
given to the appellant, but he did not forward it to Mohlokoane.
I
should mention that Sitech was not included as one of the service
providers in Pretorius’ report. It seems that Mohlokoane
went
on leave about three months later, and the appellant then amended
Pretorius’ report without the latter’s knowledge,
in
January 2004. He was by then acting as Executive Director in
Mohlokoane’s place, and signed the report on behalf of
Mohlokoane.
The report was addressed to the Municipal Manager, Mr
Matlole.
[16]
The appellant, prior to submission of the report, addressed a letter
to Mr Matlole, which he also signed on behalf of Mohlokoane
during
the latter’s absence, in which he indicated that the
Municipality has approved implementation of a project and negotiated
a contract with an approved service provider. He was referring to
Sitech. He did not mention, in the letter or the report, the
three
service providers who were previously shortlisted. Mr Matlole was,
however, on leave at the time and Mr Mzwandile Silwana
was acting as
Municipal Manager. Mr Silwana accepted the report and approved the
submission in his capacity as acting Municipal
Manager.
[17]
It is common cause that Sitech was not awarded the contract as a
result of following a tender process, nor was the contract
concluded
in accordance with MLM’s other methods of procurement.
Mohlokoane explained the process involved if a situation
required a
deviation from the normal procurement procedures (usually in the case
of urgent matters or emergencies), and the Sitech
contract did not
qualify as a deviation from normal procurement methods. The almost
indecent haste with which the approval of the
project, and the
appointment of Sitech as the approved service provider, was pushed
through the various departments of MLM gave
rise to justifiable
suspicion that there was something irregular afoot.
[18]
It is perhaps worth mentioning in this regard that Pretorius’
report (which was never forwarded to Mohlokoane) was dated
8
September 2003. Almost four months later, the appellant sent a letter
dated 3 January 2004 to the Municipal Manager advising
that Sitech
was the approved service provider. This was followed by the report he
compiled, based obviously on Pretorius’
earlier report, and
dated 6 January 2004. Mr Silwana approved the submission and report
on 8 January 2004. The unease that there
was something suspicious
going on was borne out by the appellant’s secretary’s
evidence that the municipal officials
were instructed to refer all
Sitech-related matters to the appellant. In addition, the evidence of
Pretorius and Mohlokoane was
that they knew nothing of the manner in
which the submission and report regarding the appointment of Sitech
were tabled or approved.
They were also unaware of an entity called
Sinako. Save for a matter which falls to be dealt with as a
deviation, it is highly
improbable that a routine submission or
report, which followed the normal procurement process would be
approved in a matter of
5 days.
[19]
Although the handing up of bank statements of MLM, Sitech, Sinako and
Sinani as evidence was ultimately placed in dispute,
the appellant
admitted that he received large amounts of money from Sinako and
Sinani, which he alleged was from Mr Silwana for
work done in respect
of other municipalities, one of which was the Gariep Municipality. He
alleged that he did not pay much attention
to the source from where
the money came because he was expecting money from Silwana and is not
sure which bank accounts such monies
were paid from. In addition to
the bank statements, the registration documents of Sinani and Sinako
were also placed in dispute,
and Mr Hulley argued that the membership
of Sinani and Sinako were not proved, and consequently the paper
trail regarding the flow
of monies from MLM to Sitech to Sinako and
Sinani had no evidential value and ought to have been disregarded.
[20].
Mr Hulley’s submissions regarding the discharge of the
appellant at the end of the state’s case, therefore, must
be
seen in the light of what I have set out above. The only documents in
dispute are the documents I have mentioned in paragraph
[19] above.
When consideration is given to the rest of the evidence led by the
state, my view is that there was definitely enough
evidence to put
the appellant on his defence to answer the case put forth by the
state. It seems that this may well be why Mr Johnson
made the
decision not to apply for the discharge of the appellant in terms of
section 174 of the CPA. This must also have been
uppermost in the
mind of the trial court, who on the strength of the state’s
case, expected the appellant to answer such
a case. In that regard,
my view is that there was no misdirection committed by the trial
court.
[21]
I made the point earlier that if a party does not challenge evidence
that was provisionally admitted, the court may accept
that such
evidence is not in dispute. Mr De Nysschen referred to the case of
S
v Boesak 2000(1) SACR 633 (SCA),
where the Supreme Court of
Appeal said the following:
“
The cross-examiner must put his
defence on each and every aspect which he wishes to put in issue,
explicitly and unambiguously,
to the witness implicating his client.
A criminal trial is not a game of catch-as catch can, nor should it
be turned into a forensic
ambush”.
The
defence embarked on extensive cross-examination on the very documents
they placed in dispute. Mr De Nysschen correctly pointed
out that the
defence must make an election in specific terms whether they are
disputing the documents or admitting them. In the
present
circumstances the conduct of the defence is indicative of their
admitting the documentary evidence.
[22]
It is so that the prosecutor and the court were remiss in not dealing
with the issue of hearsay evidence at the end of the
state’s
case, and this amounts to an irregularity. As I alluded to earlier,
not every misdirection or irregularity vitiates
the proceedings or
renders the trial unfair. A fair trial includes the notion of
fairness to both parties and the end result, in
my view, is that the
accused did not have an unfair trial. The trial court is in a far
better position to observe witnesses and
is intrinsically a part of
the atmosphere of the trial, and as such is better able to make
credibility and other pertinent findings
in support of the order it
finally makes.
[23]
An appeal court has been enjoined in a long line of cases emanating
from our courts to be alive to this fact. The judgement
of the trial
court is very extensive. The court undertook a thorough analysis of
the evidence, and paid due regard to the material
parts of the
evidence upon which its judgment was based. It is so that not every
aspect was covered in the judgment, but this in
itself does not
warrant the interference of this court, as I am unable to find that
such aspects as were not covered were ignored
or not considered by
the trial court. It is evident that, save for Radebe, the court was
impressed by the state witnesses, particularly
with regard to the
manner in which they testified and the content of their testimony. In
my view, not every aspect of Radebe’s
evidence can be rejected,
as portions of his evidence were corroborated by other state
witnesses. One does gain the impression,
though, that his
interactions with the appellant went far deeper than he chose to
disclose. By contrast, the appellant did not
fare well in the witness
box. He was evasive, arrogant at times and feigned ignorance of
certain matters which were well within
his knowledge and
contemplation. The trial court’s overall impression of him and
its assessment of his evidence was correct,
leading to a rejection of
his version as so improbable that it was false.
[24]
I turn now to deal with the specific charges preferred against the
appellant. In my view, this court cannot interfere with
the
convictions in counts 1 and 2, as it is clear from what I have set
out above that the trial court’s reasoning in respect
of those
two counts is sound, in spite of omissions or mistakes, which are not
material.
[25]
In respect of count 3, the appellant was charged with a contravention
of section 3(a)(ii) of the Prevention and Combating of
Corrupt
Activities Act 12 of 2004 (Corrupt Activities Act). This Act came
into operation on 27 April 2004. The Corrupt Activities
Act repealed
the Corruption Act 94 of 1992. The conduct which forms the subject of
this charge occurred before the Corrupt Activities
Act came into
operation, ie during the period 4 March 2003 to 22 April 2004. The
gratification of R130 000.00 referred to in count
3 was received on
16 October 2004, after the Act came into operation. The elements of
the offence were present before the Act came
into operation,
therefore the offence was committed prior to the Act coming into
operation. The receipt of the monies took place
after the Act came
into operation. The absence of transitional provisions in the Corrupt
Activities Act, creates a lacuna in the
Act, and I am of the view
that no offence took place under the Corrupt Activities Act. Count 3
is therefore not competent, and
the appellant should be given the
benefit of the lacuna in the Act.
[26]
In count 4, the appellant was charged with contravening section 4(a)
and/or (b) of the Prevention of Organised Crime Act 121
of 1998
(POCA). The trial court dealt with the relevant facts extensively and
I do not intend repeating them here. Section 4 of
POCA reads as
follows:
“
Any
person who knows or ought reasonably to have known that the property
is or forms part of the proceeds of unlawful activities
and –
(a)
enters
into any agreement or engages in any arrangement or transaction with
anyone in connection with that property, whether such
agreement,
arrangement or transaction is legally enforceable or not; or
(b)
performs
any other act in connection with such property, whether it is
performed independently or in concert with any other person,
which
has or is likely to have the effect –
(i)
of
concealing or disguising the nature, source, location, disposition or
movement of the said property or the ownership thereof
or ant
interest which anyone may have in respect thereof; or
(ii)
of enabling
or assisting any person who has committed or commits an offence,
whether in the Republic or elsewhere –
(aa)
to avoid prosecution; or
(bb)
to remove or diminish any property acquired directly, or indirectly,
as a result of the commission of an offence,
shall
be guilty of an offence.”
[27]
Mr Hulley argued that the trial court did not indicate whether the
appellant was guilty of contravening section 4 or section
6 of POCA.
This is erroneous, as the appellant was not charged with contravening
section 6. The correct argument would have been
that the trial court
did not clearly indicate whether the appellant was convicted of a
contravention of section 4(a) or section
4(b) of POCA. The
reasoning of the trial court in respect of this count was somewhat
circuitous, without determining whether
an offence was committed in
respect of subsection (a) or (b) of section 4. Mr Hulley referred to
the case of
S
v De Vries and Others 2012(1) SACR 186 (SCA),
which
gives greater clarity on the import of section 4 of POCA. This matter
involved robbing trucks carrying cigarettes and thereafter
selling
the cigarettes to a third person (the appellant), who owned a
wholesale business at which the cigarettes were sold to the
public.
The appellant was not involved in the robberies but the Supreme Court
of Appeal held that by receiving the cigarettes,
he made himself
guilty of theft which is a continuing crime. The court held
further that “By proceeding to use the
cigarettes as part of
his stock or concealing the source, movement and ownership of
the cigarettes and enabling and assisting
the robbers to either avoid
prosecution or to remove property acquired in the robberies, the
appellant clearly made himself guilty
of a contravention of s 4”.
The appellant in this matter played a leading role in committing
fraud and contravening the Corruption
Act, but there is no evidence
that he laundered the money which he received from Sinako and Sitech,
in order to disguise the source,
movement or ownership of the money.
There is equally nothing in the evidence to suggest that he acted in
a way which assisted Sitech,
Sinako or Sinani, knowing they committed
offences, to avoid prosecution. [See also
S
v Dos Santos and Others
2012 (2) SACR 382
(SCA) and S v Prinsloo
2016
(2) SACR 25
(SCA)
].
[28]
With regard to the sentence, it is well settled in our law that an
appeal court should interfere with the sentence imposed
by a trial
court only if the trial court has misdirected itself in the
imposition of sentence, resulting in a sentence which is
so
inappropriate that it induces a sense of shock. The enquiry is not
whether the sentence is right or wrong but whether the court
exercised its discretion properly and judicially. If it is apparent
that the court did not exercise its discretion at all or exercised
it
improperly or unreasonably, then this would be a misdirection that
vitiates the court’s decision on sentence. [See in
this regard
S
v Pillay
1977
(4) SA 531
(A) at p 535 E-F,
S
v Rabie
1975
(4) SA 855
(A),
S
v Giannoulis
1975
(4) SA 867 (A) and
Director
of Public Prosecutions KwaZulu Natal v P
2006(1)
SACR 243 (SCA)].
[29]
In casu,
the
magistrate took account of the personal circumstances of the
appellant, and undertook a detailed examination of the circumstances
in which the offences were committed in deciding on an appropriate
sentence. She examined the dicta in various cases, dealing with
theft
from an employer as well as the need to impose stringent sentences in
matters involving white collar crimes. The court was
of the view that
given the seriousness of the offences, that the appellant was a
senior official in a position of trust, and in
spite of his being a
first offender, a custodial sentence would be the only appropriate
sentence. I cannot fault the reasoning
of the court in respect of the
sentencing in this matter. I pause to point out that given the order
which will follow, I refer
to the sentences in respect of counts 1
and 2. There is indeed a need to deal stringently with people in the
position of the appellant
due to the alarming increase in crimes such
as those committed by the appellant. The courts do indeed need to
send a strong and
clear message that corruption is intolerable and
that severe sanctions will be a necessary consequence of convictions
in such cases.
I therefore, cannot find that the court misdirected
itself in respect of the sentences relating to counts 1 and 2 in this
matter.
[30]
In the circumstances, I make the following order:
30.1
The appeal against the convictions and sentences in respect of
counts
1 and 2
is dismissed.
30.2
The conviction and sentence in respect of
count 3
are set
aside and replaced with the following order – The accused is
found Not Guilty.
30.3
The conviction and sentence in respect of
count 4
are set
aside and replaced with the following order – The accused is
found Not Guilty.
30.4 The order of the
court
a
quo
that the sentence in count 2 run concurrently with that in count 1,
is confirmed.
________________
S
NAIDOO, J
I concur
________________
J P DAFFUE, J
JUDGMENT
BY: J P DAFFUE, J
[31]
I agree with the reasoning and conclusions of my learned colleague,
Naidoo J, but need to point out that I approached the appeal
somewhat
differently.
[32]
Appellant not only attacked the convictions and sentences on the
merits, but raised certain points
in
limine.
I
shall firstly consider the points
in
limine
and
thereafter the submissions on the merits.
POINTS
IN LIMINE: RIGHT TO A FAIR TRIAL
[33]
Adv G I Hulley SC, appearing with Adv C J Smith for the
appellant, raised two pertinent issues,
i.e.
that the court
a
quo
committed serious and gross irregularities which vitiated the trial
as a fair trial in that (a) in the absence of an application
by the
State for admission of hearsay and documentary evidence at the end of
the State’s case, such evidence should have
been disallowed;
(b) if the court
a
quo
disallowed
the evidence as it should have done, the admissible evidence would be
insufficient to such an extent that the court
a
quo
ought to have granted appellant a discharge in terms of s 174 of the
Criminal Procedure Act, 51 of 1977 (“the Act”).
[34]
Thus, he submitted further, the conviction of the appellant infringed
several of the appellant’s constitutional rights
amongst which
s 35(3) of the Constitution of the Republic of South Africa, 1996,
which guarantee an accused person the right to
a fair trial.
Adv J M de Nysschen submitted on behalf of the State that no
irregularities occurred, but in any event, appellant
who was
represented by an experienced attorney, did not attack the veracity
of the hearsay or documentary evidence relied upon
and made an
informed decision not to apply for discharge at the end of the
State’s case. So, we were told, the appellant
was in the
final analysis not prejudiced.
[35]
The State led hearsay and documentary evidence and the evidence was
provisionally allowed on the basis that the court
a
quo
would
be formally requested prior to the closure of the State’s case
to finally allow the evidence. This did not happen,
but closing
arguments were submitted to the court
a
quo
at
the end of the case and the court
a
quo
then
dealt with the issue in her judgment.
[36]
Mr Hulley argued with a measure of conviction that the prosecutor
could not merely hand in documents from the bar without proof
of its
authenticity, its origin and without evidence regarding the
protection and integrity of the chain of evidence. No
doubt,
voluminous documents were presented in this fashion, but the crux of
the matter is really which of the documents were material
to
convictions
in
casu
.
By far the majority of documents handed in or referred to in the
testimony of the forensic auditor, Fourie, were nor
relied upon by
the court
a
quo
and
do not have to be relied upon to adjudicate this appeal. Mr
Hulley was invited in his oral address to indicate precisely
which
documents having a bearing on appellant’s convictions should
have been disallowed, instead of relying on generalisations.
In
my view he limited the complaint to the bank statements of the
Municipality, Sinani Management Solutions CC (“Sinani”),
Sitech Systems (Pty) Ltd (“Sitech”) and Sinako Property
Solutions CC (“Sinako”) as well as company registration
documents of Sinako and Sinani.
[37]
The protection of an accused person lies in the right to a fair trial
entrenched in s 35(3) of the Constitution.
Some
irregularities do result in a failure of justice as mentioned in s
322(1) of the Act. However, not every irregularity
has as its
consequence an unfair trial as understood in s 35(3) of the
Constitution. See:
S
v Jaipal
[2005] ZACC 1
;
2005
(4) SA 581
(CC) at paras [38] to [51]. Obviously, a failure of
justice that led to an unfair trial in accordance with notions of
basic
substantive fairness and justice should have the effect that
the proceedings be set aside, alternatively lead to the accused’s
acquittal.
[38]
It is acknowledged that the trial court, without compromising
objectivity, has a duty to manage a criminal trial within the
law
governing criminal procedure, has a duty to ensure that an accused is
properly defended and that his constitutional rights
are not
negatively affected either by commission or omission. The right to a
fair was described in
S
v Shaik
[2007] ZACC 19
;
2008
(2) SA 208
(CC) at para
[43]
in these terms:
“
The right to a fair trial
requires a substantive, rather than a formal or textual approach. It
is clear also that fairness is not
a one - way street conferring an
unlimited right on an accused to demand the most favourable possible
treatment. A fair trial also
requires ‘fairness to the public
as represented by the State. It has to instil confidence in the
criminal justice system
with the public, including those close to the
accused, as well as those distressed by the audacity and horror of
crime.’”
Admissibility
of hearsay and documentary evidence
[39]
As mentioned the State relied on hearsay and documentary evidence.
Much has been made of this in the appellant’s
heads of argument
and during oral argument. No doubt, the court should scrutinise
hearsay evidence closely, especially if it is
important evidence that
inter
alia
points
towards the guilt of an accused or is an important aspect in the
chain of evidence.
[40]
It is necessary to mention some authorities and how a court should
approach an application to allow hearsay evidence.
Cameron JA
(as he then was) found in
S
v Ndhlovu and others
2002 (2) SACR 325
(SCA) at para [26] that the
Law of Evidence
Amendment Act, 45 of 1988
“
provides
a constitutionally sound framework for the admission of hearsay
evidence,…”
The
right to challenge evidence entails the right to resist admission of
hearsay evidence and to scrutinise its probative value
and
reliability. This would mean that, once the evidence is allowed
provisionally, the cross-examiner has a duty to challenge
that
evidence. He cannot sit back and hope that the evidence will
not be allowed finally. In fact, if the evidence
is not
challenged, it may be a factor to be considered by the trial court
whether or not to allow the evidence.
It
was emphasized in
Ndhlovu
at para [18] that a determination shall be made before the close of
the State’s case about the admissibility of hearsay evidence
provisionally allowed. Failure to do so is a misdirection.
No doubt, the accused should not be ambushed; he should
be able to
appreciate the full evidentiary ambit he faces.
[41]
It was emphasised in
S v Molimi
[2008] ZACC 2
;
2008 (2) SACR 76
(CC) at paras
[35] and [36] that a court having to make a determination whether to
allow hearsay evidence in the interests of justice
must have regard
to every factor that should be taken into account, more specifically
those mentioned in
s 3(1)(c)
of Act 45 of 1988.
[42]
Brand JA considered the admissibility of hearsay evidence in
Giesecke
& Devrient SA v Minister of Safety and Security
2012 (2) SA 137
(SCA). At para [28] the learned judge of appeal
relied on Zeffert
et
al, The South African Law of Evidence
and
S v
Ndhlovu
supra,
and
quoted
with approval the following from
Ndhlovu,
para
[15]:
”…
.the
very purpose for the introduction of s 3(1)(c) was to ‘supersede
the excessive rigidity and inflexibility – and
occasional
absurdity – of the common-law position’ by creating
another avenue for the admission of hearsay evidence
which turns on
what the interests of justice require.”
He
proceeded as follows at para [31]:
“
The
section requires that the court should have regard to the collective
and interrelated effect of all the considerations in paras
(i) –
(iv) of the section and any other factor that should, in the opinion
of the court, be taken into account. This
section introduces a
high degree of flexibility to the admission of hearsay evidence with
the ultimate goal of doing what the interests
of justice require.”
[43]
I shall accept for purposes hereof that the documentary and hearsay
evidence were correctly allowed for the reasons provided
and bearing
in mind the authorities quoted
supra.
Therefore I shall not endeavour to scrutinise the court
a
quo’s
reasons
in any depth. The only issue to be considered is the failure to
make a ruling timeously and whether or not such failure
rendered the
trial to be unfair. In order to consider this I believe it is
required to consider the totality of the facts
eventually tendered,
but in particular the common cause facts as at the end of the State’s
case.
Common
cause facts and the election not to apply for discharge.
[44]
The following facts are either common cause or not seriously
disputed:
44.1
The documentary and hearsay evidence, after being allowed
provisionally, were never disputed by appellant,
with reference to
the evidence led by
inter
alia
Messrs
Fourie, Mohlokoana, Pretorius and Killops;
44.2
After Fourie, the forensic auditor’s evidence in chief, Mr
Johnson, who initially appeared for appellant,
asked for a
postponement to prepare for cross-examination due to the voluminous
nature of the documents referred to by Fourie and
relied upon by the
State which were provisionally allowed. The case was postponed
from 27 January 2009 to 5 November 2009,
a period of nine months, but
the case was again postponed and cross-examination of Fourie started
on 6 April 2010 only;
44.3
There was never any suggestion that scanned documents or copies of
documents were tampered with – the
authenticity of documents
was never placed in dispute;
44.4
Fourie’s version is to an extent a summary of the versions of
other State witnesses that eventually
testified under oath as well;
44.5
Appellant was appointed the Municipality’s General Manager from
1 March 2003 and it was part of his
duties to deal with the
Municipality’s Vehicle Monitoring System, a program which was
started already in 1997;
44.6
Pretorius initiated the system in 1997 and eventually three local
companies were shortlisted as suppliers
of tracking devices prior to
appellant’s employment with the Municipality;
44.7
The three shortlisted companies were SMS Technologies, Taco-log and
Electro-tech; Sitech not having been
on the scene by then;
44.8
Mr Radebe of Sitech came into contact with employees of the
Municipality shortly after appellant’s
appointment and met with
inter alia
Pretorius and appellant;
44.9
In September 2003 appellant, who was Pretorius’ senior,
instructed him to write a report about the
Vehicle Monitoring System,
which he did, addressing the report to Mohlokoana, the Executive
Director: Infrastructure Mechanical
Services and appellant’s
senior;
44.10
Appellant failed to submit the report to Mohlokoana, but when
Mohlokoana was on leave and appellant acting in his position,
appellant compiled his own report on 6 January 2004, without
informing Pretorius and/or directing him to amend his alleged wrong
report to include Sitech; in his report appellant recommended to the
acting Municipal Manager at the time, Mr Mzwandile Silwana,
the
husband of Mrs Briggette Silwana, that Sitech be appointed as
supplier and in so doing provided incorrect and misleading
information
in a document which he kept away from important and
relevant role players like Pretorius and Mohlokoana;
44.11
As mentioned, Sitech was never shortlisted and also not included in
Pretorius’ report, but appellant did not mention
that three
entities were shortlisted, merely that Sitech’s product was
found to be more effective and advanced;
44.12
In a letter addressed to the Municipal Manager, Mr Matlole dated 3
January 2004, signed by appellant on behalf of Mohlokoana
(whilst he
was on leave), appellant recorded that the Municipality
“
has
approved the implementation of the project and has negotiated
contractual terms with the approved service provider”
which turned out to be
Sitech; Matlole was on leave at the time and Mzwandile Silwana
approved the submission and report as
acting Municipal Manager on 8
January 2004;
44.13
A contract was eventually concluded between the Municipality and
Sitech, a Gauteng company, whilst the three shortlisted companies
were local businesses; the process for approval was undertaken with
tremendous haste as appellant regarded the matter as extremely
urgent, although he did not do anything for a period of several
months from receipt of Pretorius’ report;
44.14
When Killops of Sitech came to Bloemfontein after the main contract
was entered into, he was told that they could not start
with
operations until a local representative company was appointed as
subcontractor and after negotiations by Radebe from Sitech,
Sinako
was appointed as subcontractor;
44.15
Sitech subcontracted with Sinako, an entity fully owned by Briggette
Silwana, the wife of Mzwandile Silwana – an aspect
that Mr
Hulley put in dispute, but it is common cause that she signed the
subcontract on behalf of Sinako;
44.16
Neither Pretorius, nor Mohlokoana knew anything at the time of the
recommendation of Sitech as supplier, its appointment as
main
contractor, as well as the existence of Sinako, the subcontractor and
as Pretorius testified, appellant instructed staff to
leave all
dealings with Sitech to him;
44.17
Appellant received two large payments, which according to his lawyer,
were received from Mzwandile Silwana for outside work
in which they
and others were involved;
44.18
During the period March 2004 to June 2005 Sitech received
R5 347 056.57 from the Municipality and Sitech paid to
Sinako an amount of R532 624 during that time which is
roughly 10% of the payments received from the Municipality;
44.19
Sitech terminated its contract with the Municipality after the facts
mentioned herein were discovered;
44.20
The contract could not have been awarded to Sitech insofar as no
proper tender processes were followed in terms of the Municipality’s
Supply Chain Management Policy and no deviation from the applicable
tender process was required and/or sought;
44.21
Killops met Mzwandile Silwana at the Bloemfontein Airport when
problems pertaining to the contract had arisen – he believing
at the time that he was speaking to the member of Sinako, the
subcontractor – only to find out later that Mzwandile Silwana
was actually working for the Municipality and that his wife was the
member of Sinako;
44.22
Prior to the appointment of the subcontractor, Radebe met Briggette
Silwana at the Mall in Bloemfontein, he having been introduced
to her
by the appellant (it may be noted that appellant denied this in his
evidence, but Radebe’s version was never disputed
in
cross-examination);
44.23 Mzwandile Silwana,
a senior employee of the Municipality who acted as Municipal Manager
when appellant recommended Sitech
as the preferred supplier, which
recommendation he accepted, signed an undated Marketing Agency
Agreement on behalf of Sinako.
[45]
Appellant may regard himself fortunate that he employed the services
of Mr Johnson, an experienced attorney, who assisted him
with vigour
and who put up a commendable defence. The mere fact that
hearsay and documentary evidence by Fourie in particular
were not
attacked is easy to explain. It turned out later that appellant
did not deny the payments relied upon by the State,
although he tried
to deny the source thereof. The veracity of Fourie’s
version was also not attacked. The alleged
infringements of
constitutional rights could not, on their own, lead to an acquittal
of the appellant on the charges preferred
against him, but should be
judged having regard to the totality of the evidence presented.
[46]
Mr Hulley submitted that Fourie’s evidence should have been
found inadmissible in totality as hearsay. Clearly,
this is
incorrect insofar as Fourie’s version was corroborated by
several State witnesses that were called to testify.
[47]
Regarding the documentary evidence, he submitted that documents could
not simply be handed in from the bar. He accepted
that a
document need not be identified or authenticated by a witness if its
authenticity is admitted by the opponent. In
criminal
proceedings formal admissions may be made in terms of ss 220 and 213
of the Act and this was not the case
in
casu
.
Reliance was placed on
R
v De Meyer
1949
(3) SA 892
(OPD) for the submission that even if an accused fails to
cross-examine a witness providing secondary evidence in this regard,
such failure should not be seen as an admission of the correctness of
the evidence. In
De
Meyer
it was found that the complainant’s evidence that he was the
licensee of premises in respect of which a liquor licence was
issued,
was inadmissible in the absence of an admission by the accused.
The licence was not produced as evidential material.
In that
case the accused did not cross-examine the complainant at all in this
regard, but the court found on appeal at pp 896-7
that the failure to
attack inadmissible evidence in cross-examination did not result in
an admission of the facts. The case
is distinguishable in that
the court
a
quo
provisionally
allowed the evidence and it was for the appellant to put his version
to the witness as stated in
S
v Boesak
[2000] ZASCA 112
;
2000
(1) SACR 633
(SCA) at para
[50]
.
[48]
Mr Hulley also relied on
S
v King
2013 JDR 1514 (GSJ) for the submission that the documents handed in
as exhibits by the State should have been found to be inadmissible.
Victor J was severely critical of the approach adopted by the State
pertaining to numerous documents on which the State hoped to
rely.
He stated the following:
“
It emerged that the state
sought the admissibility of documents for the truth of their contents
knowing that the authors would never
be called……In
other words cross examination would ensure on at least 3000 pages of
documents and the result would
be a hit and miss scenario.”
Voluminous
documents were handed in
in
casu,
but
apparently to give some background of a much wider investigation
pertaining to criminal activities by employees and other officials
at
the Municipality. It is common cause that other offenders,
including the Silwana couple, were charged in the High Court
in
respect of misconduct committed and investigated by the forensic
auditor, Fourie, and his team. In the final analysis,
Mr
Hulley’s complaint is focused on the following documents only,
to wit the bank statements of the Municipality, Sinani,
Sitech and
Sinako as well as company registration documents of Sinako and
Sinani. Consequently, so it is alleged, the State
failed to
prove the membership of Sinako and Sinani and the money trail from
the Municipality to Sitech, from Sitech to Sinako
and from Sinako to
Sinani and appellant. We are not bound by the
King
judgment,
but in any event, the factual matrix and relief sought in
King
differ
completely from the circumstances
in
casu.
It
must also be pointed out that appellant and his legal representative
had ample time – from 27 January 2009 when Fourie’s
examination in chief was concluded, to 6 April 2010 when
cross-examination started, to study Fourie’s evidence and the
documents
relevant to the matter.
[49]
Mr Johnson on behalf of appellant made a deliberate election not to
apply for his discharge in terms of s 174 of the Act.
When the
State closed its case on 26 November 2010, the matter was postponed
to 16 May 2011 and the record was transcribed on the
directions of
the court
a
quo.
On 16 May 2011 the matter was again postponed for a further six
months to 14 November 2011. On this day appellant was
called to
testify in his defence. Notwithstanding the lapse of a year and
Mr Johnson and the appellant being in possession
of all relevant
documentation and the record of proceedings, no application for
discharge was made.
[50]
I accept that Nugent AJA (as he then was) held in
S
v Lubaxa
2001
(2) SACR 703
(SCA) that an accused person, excluding the situation
where there are more than one accused, is entitled to be discharged
at the
close of the State’s case if there is no possibility of
a conviction except if he gives evidence and incriminates himself.
This is the situation, whether or not the accused is legally
represented.
[51]
Recognition of the common cause facts known at the end of the State’s
case points in one direction only and that is that
appellant had a
case to answer. Thus, without taking into consideration the
alleged inadmissible evidence, it cannot be said
that there was no
evidence upon which a reasonable person, acting carefully, may
convict.
[52]
Criminal proceedings are not vitiated by any misdirection. The
materiality thereof must be considered in order to establish
whether
the accused had a fair trial as guaranteed in s 35(3) of the
Constitution. I again refer to the
Jaipal
and
Shaik
judgments
supra.
[53]
The Supreme Court of Appeal made the following quite clear in
S
v Boesak supra
at para [50], relying in para [51] on the well-known
Sarfu
judgment of the Constitutional Court:
“
The cross-examiner must put his
defence on each and every aspect which he wishes to put in issue,
explicitly and unambiguously,
to the witness implicating his client.
A criminal trial is not a game of catch-as catch-can, nor should it
be turned into
a forensic ambush.”
[54]
In the final analysis, although the conduct of the prosecution in not
seeking a ruling on admissibility prior to the closure
of the State’s
case and the court
a
quo’s
consequent
failure to make an appropriate ruling ought to be deprecated, this
did not amount to such gross misconduct by the prosecutor
and a
material misdirection by the court
a
quo
as
to vitiate the proceedings if the totality of the evidence and
fairness to both parties are considered. In the result
and on
that basis, the appellant was afforded a fair trial.
THE
MERITS OF THE CASE
Approach
on appeal
[55]
An appeal is a re-trial on the record although the ambit thereof is
limited to the issues raised by the appellant. There
is no
reason why this court may not reconsider the complete record of the
entire proceedings in the court
a
quo
.
See
S v
Zondi
2003 (2) SACR 277
(W) at 242h.
[56]
When an appeal is lodged against a court
a
quo
’s
findings of fact, the appeal court should take into account that the
court
a
quo
was
in a more favourable position than itself to form a judgment because
it was able to observe the witnesses during their questioning
and was
absorbed in the atmosphere of the trial. See Schmidt and
Rademeyer,
Law
of Evidence
3-40.
The appeal court will normally accept factual findings made by the
court
a
quo,
unless there is some indication that a mistake was made. See
R
v Dhlumayo
1948 (2) SA 677
(A) at 696 and 705. The Court of Appeal
summarised this issue as follows in
S
v Hadebe and Others
1997
(2) SACR 641
(SCA) at 645e - f:
“
Before
considering these submissions it would be as well to recall yet again
that there are well-established principles governing
the hearing of
appeals against findings of fact. In short, in the absence of
demonstrable and material misdirection by the
trial Court, its
findings of fact are presumed to be correct and will only be
disregarded if the recorded evidence shows them to
be clearly wrong.”
[57]
The presumption is that the trial court’s conclusion on the
facts is correct. The appeal court will only reverse it where
it is
convinced that such conclusion is wrong. In such a case, if the
appeal court is merely left in doubt as to the correctness
of the
conclusion, it will uphold it. The Supreme Court of Appeal in
S
v Naidoo and Others
2003 (1) SACR 347
(SCA) at para [26] reiterated this principle as
follows:
‘
In the final analysis, a court
of appeal does not overturn a trial court’s findings of fact
unless they are shown to be vitiated
by material misdirection or are
shown by the record to be wrong.’
[58]
The SCA emphasised that it could be useful for the understanding of
the evidence as a whole to break it down into components,
but the
appeal court should, in assessing the court
a
quo
’s
findings of fact, be careful not to focus too intently on the
separate parts and in doing so losing sight of the fact that
the
whole body of evidence might shed valuable light on the evidential
value of its components. See also
S
v Hadebe and Others
1998 (1) SACR 422
(SCA) at 426a – h and
S
v Ramulifho
2013
(1) SACR 388
(SCA) at 392g - h.
[59]
No judgment is perfect and the fact that certain issues were not
referred to does not necessarily mean that these were overlooked.
It is accepted that factual errors do appear from time to time, that
reasons provided by a court
a
quo
are
unsatisfactory or that certain facts or improbabilities are
overlooked. The appeal court should be hesitant to search
for
reasons that are in conflict with or adverse to the court
a
quo
’s
conclusions. See
Dhlumayo
loc cit
at
para [12] on 706. However, in order to prevent a convicted
person’s right of appeal to be illusionary, the appeal
court
has a duty to investigate the court
a
quo
’s
factual findings in order to ascertain their correctness and if a
mistake has been made to the extent that the conviction
cannot be
upheld, it must interfere. See
S
v M
2006 (1) SACR 135
(SCA) para [40] at 152a - c.
[60]
To secure a conviction the State had to prove all the elements of the
crimes beyond reasonable doubt. The test in a criminal
case has been
restated in
S
v V
2000
(1) SACR 453
(SCA) at para [3]. If there is a reasonable
possibility that the accused is not guilty, he should be acquitted.
The accused
should be convicted if the court finds not only that his
version is improbable, but also that it is false beyond reasonable
doubt.
It is not necessary for the court to believe an accused person
in order to acquit him.
Evidence
of single witness
[61]
It is trite that an accused may be convicted on the single evidence
of any competent witness if such evidence is clear and
satisfactory
in every material respect. Our courts have indicated that
evidence can be satisfactory, even if it is open to
a degree of
criticism. See
S
v Sauls
1981 (3) SA 172
(A) at 180G–H. Furthermore, the exercise
of caution should not be allowed to displace the exercise of common
sense.
See
S
v Artman
1968 (3) SA 339
(A) at 341C.
Probabilities
[62]
The State has to prove its case against an accused beyond reasonable
doubt, but in evaluating the evidence, the trial court
is entitled to
consider the probabilities and improbabilities. This issue was
considered in S v Chabalala
2003 (1) SACR 134
SCA at para [15] where
Heher AJA (as he then was) held:
“
The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative
of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused’s guilt.”
See
also:
S
v Trainor
2003
(1) SACR 35
(SCA) at 41b – c.
Circumstantial
evidence and test to be applied
[63]
The test has been authoritatively stated in
R v Blom
1939 AD
188
at 202 – 203. Firstly, the inference sought to be
drawn must be consistent with all the proved facts. If it is
not, the inference cannot be drawn. Secondly, the proved facts
should be such that it excludes every reasonable inference
from them,
save the one sought to be drawn. If they do not exclude other
reasonable inferences, then there must be doubt
whether the inference
sought to be drawn is correct. The two rules referred to above
are known as the cardinal rules of logic
to be applied when no direct
evidence of an offence is available. An example of the
cumulative effect of all the evidence
pointing to the guilt of the
accused is to be found in
S v Reddy
1996 (2) SACR 1
(A) at 8.
Rejection
of an accused’s version
[64]
An accused’s version cannot be rejected merely because it
appears to be improbable. It must be shown, in light
of the
totality of the facts, to be so untenable and/or improbable and/or
false that it cannot reasonably possibly be true.
See S v
Schackell
2001 (2) SACR 185
(SCA) at para [30] and
S
v V
supra
.
Failure to
cross-examine
[65]
I have referred to
S
v Boesak supra
and
the duty on a cross-examiner to put his defence properly on each and
every aspect which he wishes to place in issue to those
witnesses
implicating his client. A criminal trial should not be turned
into a forensic ambush.
Evaluation of the
evidence
[66]
I am of the view that too much was made of the court
a
quo’s
preference
of the evidence of Pretorius above that of Radebe. I accept
that the court
a
quo
was
not favourably impressed by Radebe as a witness and in my view he did
not play open cards with the court. There was clearly
interaction between him and appellant which was kept secret and
hidden from Pretorius and Mohlokoana. The introduction of
Radebe to Briggitte Silwana by appellant – which appellant did
not deny initially, but for the first time only when he testified
–
is suspicious and tends to favour a version that appellant nominated
Sinako, Briggette’s CC, which was actually run
by her husband
if Killops’ evidence is considered.
[67]
I accept that the witnesses, Pretorius included, might have made
mistakes in their testimony, bearing in mind the time lapse
of
several years. However, the golden thread running through the
evidence is that Radebe’s company, Sitech, arrived
on the scene
just after the appointment of appellant as the Municipality’s
General Manager, that Sitech was given an opportunity
to have its
system tested long after three other entities were shortlisted, that
appellant recommended Sitech as the preferred
supplier on an urgent
basis during the holiday season and when his direct head as well as
the Municipal Manager were on leave.
Co-incidentally, the
person acting as Municipal Manager at the time was none other than
the husband of Briggette, she being the
sole member of Sinako,
although her husband was possibly
de
facto
in
charge of this CC. It is true that appellant would not know at
the time he made the recommendation that the Municipality
would
eventually conclude a contract with Sitech, but he knew on all
probabilities that there was a real chance as his friend,
the acting
Municipal Manager and the head of the Municipality’s
administration at the time, would accept his recommendation.
I
refer to the wide-ranging powers of a municipal manager set out in
s
55
of the
Local Government: Municipal Systems Act, 32 of 2000
.
Appellant had reason to believe that the acting Municipal
manager’s signature would pave the way for a lucrative deal
that would benefit him in particular as well. Therefore Sitech,
although having been awarded the contract, was directed to
obtain the
services of a local subcontractor which came in the form of the
Silwanas’ entity, Sinako.
[68]
The State witnesses, excluding Radebe, impressed the court
a
quo
as
credible witnesses
.
This
cannot be criticized and has to be accepted based on the authorities
quoted, save for the comments
supra.
Contrary
to the State’s witnesses, appellant was a poor, arrogant and
argumentative witness. I do not deem it necessary
to mention
all shortcomings and contradictions, save to state that his version
changed in at least one material aspect. He
obviously decided
that, more than a year after Radebe’s testimony, he had to
position himself as far as possible from Radebe’s
introduction
to Briggette Silwana. He would have heard Radebe’s
evidence and if that was not true, he should have alerted
his
attorney to this vital issue. This was not done. His
version, denying the introduction, is so improbable that it
can
safely be accepted as false.
[69]
Appellant’s overall performance as a witness was correctly
criticized by the court
a
quo.
A
perusal of the record indicates in the same direction. Save
insofar as Pretorius might have made mistakes in respect of
his
introduction to Radebe and the testing of the Sitech product, his
evidence as a single witness should be accepted as sufficient
to
prove that appellant exploited the Municipality’s system to his
and others’ advantage. There is in any event
sufficient
corroboration for Pretorius’ version in the form of his and
appellant’s reports and the evidence of Mohlokoane
and
appellant’s secretary that he wanted to keep the details of
payments to Sitech away from her. Insofar as there
is no direct
evidence on certain issues, the matter may be considered based on the
test applicable to circumstantial evidence.
The
dicta
in
Reddy
supra
with
reference to the test laid down in
Blom
supra
are
apposite.
[70]
If the evidence is evaluated in its totality the probabilities are so
in favour of the State’s case that appellant’s
version
was correctly rejected by the court
a
quo
as
not only improbable, but false. The State has proven beyond
reasonable doubt that appellant’s version is not reasonably
possibly true and that the evidence presented by the State should be
accepted to be true beyond reasonable doubt.
[71]
Even if it is accepted that the court a quo made mistakes pertaining
to factual findings, these are not so material that this
court should
interfere and set aside the convictions in respect of counts 1 and
2. However, the findings in respect of the
law relating to
counts 3 and 4 must be reconsidered and this will be done in the next
paragraphs.
[72]
I shall deal with count 3 first. At the time when the agreement
was reached between appellant and his co-perpetrators,
the Corrupt
Activities Act was not yet promulgated. The Corruption Act
still applied. It was wrong to convict the appellant
in respect
of the Corrupt Activities Act as the
actus
reus
occurred
during the time the Corruption Act was still the law. The fact
that the one payment was received after promulgation
of the Corrupt
Activities Act is irrelevant. Section 3 is clear. The
payment must have been received in order to do
something or obtain an
unjustified result in future. No transitional arrangements have
been catered for in s 36 of the Corrupt
Activities Act to deal with a
situation as
in
casu
as
might have been expected. The issue to be considered is whether
appellant’s appeal should succeed in respect of count
3 and in
doing so, whether it would be possible and fair to appellant to amend
the conviction in respect of count 2 to include
the further payment
received. In the absence of transitional arrangements this
should not be done and appellant must receive
the benefit of a
loophole in the legislation.
[73]
The conviction in respect of count 4 – money laundering - must
be considered as well. It is again not necessary
to interfere
with the court
a
quo’s
assessment
of the facts, but it is a different matter whether the established
facts brought the case within the purview of the offence
of money
laundering. I do not think so for the following reasons.
[74]
Firstly, it does not appear clearly from the judgment whether the
court
a
quo
convicted appellant of contravention of s 4(a) or 4(b) of Poca.
Appellant’s counsel incorrectly argued that the court
a
quo
failed
to distinguish between the offences created in ss 4 and 6, but
appellant was not charged in respect of s 6 and the court
a
quo
did
not consider that section. It is necessary to reflect on the
authorities for clarity.
[75]
Mr De Nysschen relied on the Supreme Court of Appeal judgment in
S
v Shaik and others
[2006] ZASCA 105
;
2007 (1) SA 240
(SCA) in support for his
contention that the State has proven its case beyond reasonable
doubt. In my view the facts in
Shaik
are distinguishable
from those
in casu.
In
Shaik,
Mr Shaik was
convicted of transgression of s 1(1)(a) of the Corruption Act (count
3 of the particular counts put to him and others).
The court
found that fourth appellant who entered into the service agreement
and the fifth appellant who received payments made
in respect of the
service agreement assisted Mr Shaik and the company Thales to avoid
prosecution; therefore fourth and fifth appellants
were correctly
convicted of committing an offence in terms of s 4 of Poca, being an
alternative count to the main count 3. The
particular agreement was
found to be contrived and designed to conceal the true nature of the
payment.
In casu
appellant was, like Shaik convicted of
transgressing the Corruption Act, and also for fraud. He was the main
player, but he clearly
did not sanitise his illegal proceeds by
channelling same through either Sinako or Sinani. As part of
the scheme developed
by him and the Silwanas, he received relatively
small portions of the proceeds. It would be a totally different
scenario
if he was in the shoes of the fourth and fifth appellants in
Shaik;
however he found himself in the same position as the
first appellant, Mr Shaik.
[76]
Laundering or sanitation of illegal proceeds has occurred in
S
v De Vries and others
2012(1)
SA 186 (SCA). The SCA stated in para [56] that although
appellant was convicted of theft of cigarettes on the basis
that he
received the cigarettes knowing that they were stolen, he was also
correctly convicted of contravening s 4 of Poca, because
he proceeded
to take the stolen cigarettes in as part of his stock in trade as a
wholesaler and thereby giving the impression that
these were lawfully
acquired. The source, movement and ownership of the cigarettes
were disguised or concealed in the process;
thereby enabling the
robbers who had hijacked trucks of British American Tobacco to avoid
prosecution. Again, I am satisfied
that appellant could not
have been dealt with in similar vein. He had nothing to do with
the incorporation or management
of Sinako and eventually received
money without it being laundered in the first place.
[77]
The laundering of illegal proceeds has been explained in more detail
by Nicholls J in
S
v Van der Linde
2016
(2) SACR 377
GJ in paras [111] – [125] with reference to an
article by the well-known author, Prof Louis de Koker, as well as to
De Vries
supra
and
S v
Prinsloo
2016
(2) SA 25
(SCA). Appellant did not do as De Vries did and also
not as Prinsloo did. Prinsloo, in charge of a billion Rand
Ponzi
scheme, took investors’ money and
inter
alia
purchased
several immovable properties in the name of a trust. Clearly,
in doing so the proceeds of an illegal scheme were
concealed or
disguised. The same result applied to the accused in
S
v Moosagie and another
[2012]
ZAECPEHC 31 (ECP) CC 29/2010; 17 May 2012. In that matter the
accused defrauded SARS and deposited the VAT refund cheque
to which
he was not entitled into the trust account of an estate agent where
after he withdrew small amounts over a period of time
and deposited
these into various disparate bank accounts.
[78]
I agree with Nicholls J’s observation at para [124] that it is
apparent from these three cases that there must be an
intention to
hide or conceal what is often referred to as “
hot
money”
.
Therefore the conclusion arrived at by the learned judge in para
[125] that the accused should be acquitted in respect of
the money
laundering counts as there was no attempt at concealment is
supported.
Sentence
[79]
A
court of appeal will not alter a sentence imposed by the trial court,
unless it is found that no reasonable person ought to have
imposed
such a sentence, or that the sentence is totally out of proportion to
the gravity or magnitude of the offence, or that
the sentence evokes
a feeling of shock or outrage, or that the sentence is grossly
excessive or insufficient, or that the trial
court has not exercised
its discretion properly. See
S
v Fhetani
2007 (2) SACR 590
(SCA) at para [5];
Director
of Public Prosecutions KwaZulu Natal v P
2006 (1) SACR 243
(SCA) at 254c-f and
S
v Boogaards
2013 (1) SACR 1
(CC) at para [41].
[80]
Even first offenders are not entitled to escape sentences of
incarceration in the event of serious transgressions. I
agree
with the court
a
quo
that the seriousness of the offences did not warrant a non-custodial
sentence. The following
dicta
of Ponnan JA in
S
v Kekana
2013 (1) SACR 101
(SCA) at 105d – i are apposite:
“
It
is true that the appellant has an unblemished record and that he was
a useful member of society in gainful employment at the
relevant
time. Those circumstances, however, have to be weighed against the
nature and severity of the offence and the requirements
of society.
Notwithstanding those mitigating factors being present, the
seriousness of the offence makes it necessary to send out
a clear
message that behaviour of the kind encountered in this case cannot be
countenanced. The natural indignation that the community
would feel
at conduct of this kind warrants recognition in the determination of
an appropriate sentence…Moreover, as the
version of the
appellant was found by the trial court to be false and in effect
contrived, it is difficult to conclude in his favour
that he has
demonstrated any remorse or contrition. In all of the
circumstances of the case, therefore, the moral reprehensibility
of
the appellant’s conduct remains undiminished.”
[81]
In
Shaik
supra
the Supreme Court of Appeal reiterated at para [222] that the
“
seriousness of the offence of
corruption cannot be overemphasised. It offends against the
rule of law and the principles of
good governance…..Courts
must send out an unequivocal message that corruption will not be
tolerated and that punishment
will be appropriately severe…..
It is thus not an exaggeration to say that corruption of the kind in
question eats away
at the very fabric of our society and is the
scourge of modern democracies.”
In
my view the same applies to fraud in a situation as
in
casu.
Appellant,
a senior employee of the Municipality, was in a position of trust,
but he abused his position for personal gain.
[82]
Appellant is well educated, married with two children who were twelve
and eleven years old respectively when he was sentenced
in 2014. His
wife suffered from breast cancer at the time. He is a first
offender.
[83]
Over and above the seriousness of the offence, the appellant’s
moral blameworthiness in the circumstances must also be
taken into
account. Terblanche,
The
Guide to Sentencing in South Africa
2 ed (2007) at 150 writes:
“
The
modern view of the seriousness of crime generally also refers to
blameworthiness of the offender...[T]he seriousness of the
offence is
affected by the extent to which the offender can be blamed or held
accountable for the harm caused or risked by the
[offence]...”
[84]
I am not convinced that any misdirections have been committed or that
the sentences are so harsh that interference is warranted.
In
the result the appeal against the sentences cannot succeed.
_____________
J P DAFFUE, J
On
behalf of appellant:
Adv G I Hulley SC & C J Smith
Instructed
by:
Werksmans Attorneys
Johannesburg
On behalf of the
respondent: Adv J M de Nysschen
Instructed
by:
Director: Public
Prosecutions
BLOEMFONTEIN