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[2008] ZASCA 117
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S v Mia and Another (344/07) [2008] ZASCA 117; 2009 (1) SACR 330 (SCA) ; [2009] 1 All SA 447 (SCA) (26 September 2008)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No: 344/07
In the matter between:
MOHAMED JOONAID MIA
FIRST APPELLANT
RAYMOND HOWELL
SECOND APPELLANT
v
THE STATE
RESPONDENT
Neutral citation:
Mia v
The State
(344/2007)
[2008] ZASCA 117
(26 September 2008).
Coram: Heher, Mlambo, Maya JJA
Heard: 19 August 2008
Delivered: 26 September 2008
Summary: Criminal law – theft – competent
verdict on robbery charge – theft generic offence encompassing
theft
by false pretences.
Evidence – discredited evidence of accused –
irrelevant regarding guilt or innocence of another accused –
where
state had produced no inculpating evidence against that
accused.
_______________________________________________________________
ORDER
_______________________________________________________________
On appeal from:
High Court,
Witwatersrand (Joffe J and Kekana AJ sitting as Full Court).
1. The first appellant’s appeal against his
conviction for theft succeeds and the order of the Johannesburg High
Court is
set aside.
2. In its place the following order is substituted:
‘The first appellant’s appeal against his
conviction is upheld and a finding of ‘not guilty and
discharged’
is substituted therefor.’
3. The second appellant’s appeal against his
conviction for theft is dismissed.
______________________________________________________________
JUDGMENT
______________________________________________________________
MLAMBO JA (HEHER, MAYA JJA concurring):
[1] The appellants were convicted on one count of theft
and sentenced to six years’ imprisonment by the Johannesburg
Regional
Court. Their appeal to the Johannesburg High Court (Joffe J
and Kekana AJ) failed but they were granted leave by that court to
appeal to this court against their convictions.
[2] The facts are that on 31 October 1990 the first
appellant (Mia) had facilitated a meeting between the second
appellant (Howell)
and a certain Mr Ebrahim to conclude a
foreign exchange transaction involving an amount of R1,1m. At that
time Mia was an
estate agent conducting his business with attorneys
Lachporia and Osman with whom he shared premises in Fordsburg. The
meeting
was at Mia’s office and the transaction was in
contravention of foreign exchange regulations. That meeting was
preceded by
one on the same day at which Howell had to check the
money tendered by Ebrahim to satisfy himself that it was genuine and
all there.
Even though Ebrahim was involved in the transaction, the
money he was using was not his but belonged to the Carrim family
represented
by Enver Carrim. At the meeting in Mia’s office
Howell masqueraded as Peter Lehman, a German investor, whose interest
was
to conclude a foreign exchange transaction involving the South
African and British currencies. This was Ebrahim’s
understanding
of what was happening when he put the money, in
containers, on Mia’s desk in the expectation that Howell would
then call
his contacts in London to effect the transfer of an amount
of £200 000 into an agreed bank account which would result in a
profit in the region of 30 per cent.
[3] After Ebrahim had put the money on Mia’s
table, Howell suddenly produced a business card, stating at the same
time that
he was a policeman from the Commercial Branch of John
Vorster Square police station. Ebrahim, thinking he had become
entangled
in a police sting operation, bolted out of Mia’s
office and retreated to his warehouse from where he advised Enver
Carrim
of what had transpired. After Ebrahim’s departure Howell
spoke into a two way radio, and another man walked into Mia’s
office and assisted Howell to remove the containers with the money.
As Howell was leaving the premises he told the office staff
that a
police officer from John Vorster Square Police Station would call to
take charge of the case.
[4] Later that afternoon after a meeting involving Mia,
Ebrahim, the Carrim brothers, Lachporia and certain lawyers who had
been
consulted, Mia and Ebrahim went to John Vorster Square Police
Station to lay a charge of robbery, stating that Howell had robbed
Ebrahim of emeralds valued at R1,1m at gunpoint. Mia provided a
statement to the police and cooperated with them as a witness in
the
ensuing investigation and efforts to trace Howell who had vanished
without trace.
Just over
a
year later and on a routine visit to a police
station Mia saw Howell. This chance encounter prompted Mia to change
his version
to the police about what had happened on 31 October 1990.
He stated that what was robbed was actually an amount of R1,1m and
not
emeralds as he had initially reported.
[5] The police charged Howell with robbery but the
charge was withdrawn. After representations from the Carrim family to
the Commissioner
of Police a decision was taken to charge both
appellants with that offence. The charge sheet alleged that ‘on
31 October
1990 both assaulted Ebrahim, whilst pointing a firearm at
him, and removed from his possession, with violence an amount of
R1,1m
being his property and/or the property of Enver Carrim and
thereby took the money’. The ensuing trial spanning some seven
years culminated in the appellants being convicted of theft of the
amount of R1,1m.
[6] The version presented by Mia during the trial was
almost identical to that of Ebrahim especially with regard to the
incident
in Mia’s office on 31 October 1990. This version was
that he had facilitated the meeting on that day at Howell’s
instance,
whom he had met for the first time a few days before and
who had been referred to him by certain persons he knew from
Kwazulu-Natal.
He stated that his contacts had assured him of
Howell’s bona fides. As a result he had believed that Howell
was Peter Lehman,
a German investor, and had in good faith
facilitated the meeting with Ebrahim for purposes of the foreign
exchange transaction
just like others he had facilitated in the past.
He stated that he was taken aback when, at the meeting in his office,
Howell suddenly
announced that he was a policeman and produced a
card. Because he had believed Howell’s utterance, he had not
tried to prevent
him and his accomplice leaving with the money.
[7] On the other hand, Howell’s version was that,
from inception, the whole incident was a plan hatched by Mia, who was
owed
commission from past deals by Ebrahim and/or the Carrim family.
He testified that Mia knew his true identity and that he simply
played along because he had been promised a share of the spoils.
After he removed the money from Mia’s office following
Ebrahim’s precipitate departure he met Mia at the Carlton
Centre in Johannesburg during the afternoon of the same day. There
Mia paid him an amount of R55 000 and took the rest of the money away
with him.
[8] The trial court concluded that on the evidence
before it the illegal transaction involved a foreign exchange deal
and not emeralds.
In so doing it rejected the evidence of Ebrahim,
who had testified that the subject of the transaction was emeralds.
The trial
court also disbelieved Ebrahim regarding the production of
a firearm by Howell at the meeting in the office. The court’s
conclusion that theft and not robbery was committed was informed by
this finding. The trial court further found that ‘the
three
versions [of the state and the two accused] are mutually destructive
and cannot all be the truth. The true version is probably
to be found
in a combination of the three versions or possibly in a fourth
version which no one deposed to’. The court, however,
was
specific in labelling Howell as evasive, not credible and unreliable
but made no similar finding regarding Mia save that there
were
improbabilities in his version and that in certain respects his
witnesses contradicted his version.
[9] The trial court concluded that the offence of
robbery had not been proved but that instead the appellants were
guilty of theft
1
in that they had conspired to steal the money from Ebrahim through
false pretences. The trial court stated:
‘
I find that the only
reasonable inference which I can come to on the objectively proven
facts, is that the two accused have formed
the common purpose to
trick the witness Ebrahim into believing that the money was genuinely
going to be transferred into a foreign
account.’
[10] The issue therefore is whether the trial court was
correct in concluding that the two appellants had acted in cahoots to
hoodwink
Ebrahim. This, it will be remembered, was Howell’s
version, that he took part in the deal simply to assist Mia who was
recovering
unpaid commission from the Carrims arising from past
deals. The court’s conclusion that Mia was as guilty as Howell
was based
on its finding that Mia, who was no small man, did nothing
to come to Ebrahim’s aid when Howell performed his theatrics in
his office and that he could have prevented the unarmed Howell from
leaving with the money. The trial court was further of the
view that
Mia had ample opportunity during the afternoon to leave his office
and meet Howell at the Carlton Centre to take his
share of the spoils
– and return to his office.
[11] Before us, counsel for Mia submitted that the trial
court had erred in convicting Mia as no evidence had been adduced by
the
state incriminating him. Counsel for Howell was content to argue
that the trial court had erred in convicting his client of theft
as,
at most, the evidence disclosed the commission of the offence of
fraud. Counsel submitted that as fraud is not a competent
verdict of
robbery the court should have acquitted Howell. Counsel for Howell
further submitted, in the alternative that Howell
could not be
convicted of theft by false pretences unless the charge sheet had
specifically mentioned this which was not the case
here.
[12] The proper approach in a criminal case, is that
evidence must be considered in its totality.
2
It is only in doing so that a court can determine if the guilt of an
accused person has been proved beyond reasonable doubt. Should
the
trial court, in the course of assessing the evidence before it, find
that a particular witness is unreliable and reject his
version for
that reason, that evidence plays no further part in the determination
of the guilt or innocence of the accused in the
absence of
satisfactory corroboration. Even more so does this apply to evidence
tendered by a co-accused incriminating another,
especially where the
state has not adduced any evidence proving the guilt of that other
accused.
[13] The trial court, in convicting Mia, relied on
Howell’s evidence that they met at the Carlton Centre to share
the spoils.
That evidence was entirely uncorroborated. Significantly,
a reading of all the evidence renders it improbable that Mia left his
office that afternoon before going to the police station. The
evidence of the state established that Mia co-operated with Ebrahim
and the Carrim family in trying to locate Howell. He also accompanied
Ebrahim when they went to lay charges against Howell on the
same day.
If anything, this evidence did not incriminate Mia but tended to
support his version that he was as flummoxed by Howell’s
trick
as was Ebrahim. The state’s evidence fell short of establishing
even a prima facie case of robbery or theft by Mia.
Reliance on
Howell’s suspect testimony, uncorroborated as it was, carried
the case no further.
[14] Furthermore the trial court ignored Mia’s
denial of a subsequent meeting with Howell without good reason. It
must also
be pointed out that the evidence of Howell’s massive
spending spree involving a residential property and a motor vehicle,
for example, a few days after 31 October 1990 (which Howell
dishonestly attempted to explain away) without similar evidence
against Mia should at least have raised serious question about the
credibility of any evidence by him which inculpated Mia particularly
the paltry amount he alleged was his share of the spoils.
[15] The conviction of Mia cannot stand in the light of
all the aforegoing considerations. It is correct as submitted by
Howell’s
counsel that fraud is not a competent verdict on a
charge of robbery. Fraud is described as ‘the unlawful and
intentional
making of a misrepresentation which causes actual or
potential prejudice . . .’.
3
It is correct that in Ebrahim’s mind he was to part with R1,1m
and to receive £200 000 by way of a deposit into an
account in
London. In his mind he expected Howell to finalise the transaction by
calling his contacts in London to do the transfer.
Had Howell
pretended to do that and had Ebrahim walked out thereafter believing
that the deposit had been effected, fraud would
have indeed been
committed.
[16] That is not what happened here. No sooner had
Ebrahim voluntarily put the money on the table than the unexpected
happened.
The transformation of Peter Lehman, the German investor,
into a policeman was not what Ebrahim had bargained for and he
immediately
made good his escape. He was not induced to hand over the
money by the representation; rather he abandoned control of it when
the
representation was made and thus enabled Howell to take it at his
leisure, knowing that he had not yet received the consent of Ebrahim
to do so. That the trap was not a genuine police trap did not turn
Howell’s conduct into fraud. It is also incorrect to suggest,
as Howell’s counsel attempted to do, that there can be no
conviction for theft by false pretences where the charge sheet
does
not specifically mention this offence. Counsel referred in this
regard to an unreported judgment of Stafford J (in which
Strydom
J concurred)
4
in which it was found that ‘fraud in the form of theft by false
pretences was not the type of theft contemplated by the legislator
as
a competent verdict in s 260(d)’ [on a robbery charge]. I
disagree. No such distinction is implicit in the section. Clearly
it
is competent for a court to convict on the competent verdict of theft
where the charge is one of robbery. Theft is a generic
offence that
encompasses theft by false pretences. See
Ex
parte
Minister of
Justice: In Re R v Gesa;
R
v De Jongh
1959 (1) SA 234
(A) at 239F-H
where it was stated:
‘
If
there was deception so fundamental that the will of the victim did
not go with the act, there could be a taking and therefore
larceny,
called larceny by a trick. But if the deception was not so
fundamental as wholly to nullify the voluntariness of the act,
there
was no room for larceny. Yet the deceiver's conduct had to be
punished and so the crime of obtaining goods by false pretences
was
devised. As was pointed out by Ramsbottom J, in
Dalrymple,
Frank and Feinstein v Friedman and Another
,
1954
(4) SA 649 (W)
at
p 664, it is not correct to say that our law's treatment of both
types of fraudulent acquisition of another's goods – the
larceny by a trick type and the obtaining by false pretences type –
as theft by false pretences owes its origin to English
practice. On
the contrary in 1895 in
R
v Swart
12 SC 421
, De Villiers CJ stated that our law differs from the
English law and has always treated facts covered by the English crime
of obtaining by false pretences as theft. Ten years later in
Rex
v Collins
19
EDC 163
, Kotze JP, said that theft in our law has a much wider scope
than the corresponding term in English law and that our crime of
theft
is wide enough to include the obtaining of goods by false
pretences. The belief that our law of theft incorporated theft by
false
pretences under the influence of English law, a belief
expressed, for instance, in
Rex
v Mofoking
1939
OPD 117
, may have been encouraged by the mistaken notion that there
is in English law a crime of theft by false pretences (
cf
Rex v Hyland
1924
TPD 336).
It is true that the name of the English crime of obtaining
by false pretences may well have suggested the use of the expression
“theft by false pretences” (cf Transkeian Penal Code ss
191 to 193), but our law successfully resisted any tendency
that
there may have been to confine theft within the narrow limits of
larceny.’
Howell was in my view correctly convicted of theft and
his appeal must fail.
[17] I should express my disquiet at the delay implicit
in this matter. The offence was committed in October 1990 and it took
nearly
three years for the trial to start, against both appellants in
May 1993. That trial was concluded in January 1999 nearly seven years
later. The subsequent appeal to the Johannesburg High Court was
concluded on 22 June 2007, eight years later. The matter has to
date
taken some 18 years to finalise. This is an indictment on the
criminal justice system and the two appellants must take a lions’
share of the blame for this state of affairs. They have, as would be
expected, not been prejudiced by the delay as they have been
on bail
since the inception of the trial which was extended when they were
convicted in 1999. One hopes that the dilatory manner
in which this
matter has been handled will not be repeated in other matters.
[18] In the circumstances the following order is
granted:
1. The first appellant’s appeal against his
conviction for theft succeeds and the order of the Johannesburg High
Court is
set aside.
2. In its place the following order is substituted:
‘The first appellant’s appeal against his
conviction is upheld and a finding of ‘not guilty and
discharged’
is substituted therefor.’
3. The second appellant’s appeal against his
conviction for theft is dismissed.
__________________
D MLAMBO
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: 1
st
APPELLANT – B ROUX SC;
2
nd
APPELLANT – M R HELLENS SC
INSTRUCTED BY: MAHMOOD MIA ATTORNEYS; FORDSBURG
ROSSOUWS; BLOEMFONTEIN
FOR RESPONDENT: M T NTLAKAZA
INSTRUCTED BY: THE DIRECTOR OF PUBLIC PROSECUTIONS;
JOHANNESBURG
1
Section 260
of the
Criminal Procedure Act 51 of 1977
provides: ‘
If
the evidence on a charge of robbery or attempted robbery does not
prove the offence of robbery or, as the case may be, attempted
robbery, but- . . .
(d)
the
offence of theft; . . . the accused may be found guilty of the
offence so proved, or, where the offence of assault with intent
to
do grievous bodily harm or the offence of common assault and the
offence of theft are proved, of both such offences.’
2
S v M
2006 (1) SACR 135
(SCA) at 183h-i and
S v Gentle
2005 (1) SACR 420
(SCA) at 433h-i.
3
C R Snyman
Criminal Law
5 ed (2008) p 531.
4
William Boeck v The State
Case No A273/91 (Transvaal
Provincial Division) delivered on 13 May 1991.