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Loate v S (A561/2015) [2017] ZAGPPHC 132 (9 March 2017)

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Criminal Law
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Brief Summary

Criminal Law — Fraud — Conviction and appeal — Appellant convicted of fraud for allegedly instructing a co-worker to register the false death of his grandmother — Evidence presented by the State relied heavily on a witness who later testified that he acted independently and fabricated documents without Appellant's instructions — Appeal Court found that the State failed to prove its case beyond a reasonable doubt, leading to the conclusion that the conviction was based on insufficient evidence — Conviction set aside and Appellant found not guilty.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were a criminal appeal to the High Court of South Africa, Gauteng Division, Pretoria, against a conviction in the Regional Court, Oberholzer. The appellant was Stephen Strike Loate, and the respondent was the State.


The procedural history was that the appellant was tried in the Regional Court on 22 September 2014. On 21 May 2015 he was convicted of one count of fraud and acquitted on one count of intimidation. He was sentenced to a fine of R5 000.00 or two years’ imprisonment, wholly suspended for three years on condition that he was not convicted of a similar offence during the period of suspension. On 12 June 2015 the appellant applied for leave to appeal against the conviction, and leave was granted. The matter then served before the High Court as an appeal against conviction.


The general subject-matter of the dispute concerned an alleged fraudulent registration of a death with the Department of Home Affairs, involving a form identified as DHA1663. The State’s case, as formulated in the charge sheet, was that the appellant had caused false information to be submitted to Home Affairs in relation to the death of his grandmother, Mrs Masena, including the alleged use of fingerprints of an unknown person and an alleged misstatement concerning where she died.


2. Material Facts


The charge sheet alleged that on or about 22 March 2011, at or near Home Affairs, the appellant unlawfully and falsely, with intent to defraud and prejudice or potential prejudice Home Affairs, represented that the information on form DHA1663 was correct while knowing (as alleged) that he had instructed Fred Kotwane to obtain fingerprints of an unknown person and that Mrs Masena did not die within the district of Oberholzer but died in Lesotho.


The State led evidence from several witnesses, including co-workers at the Department of Home Affairs. A key feature of the State’s case was the evidence of Fred Kotwane, who testified as a section 204 witness (under a promise of indemnity). Kotwane’s evidence, in substance, was that the appellant requested him to register the death of the appellant’s grandmother, and that Kotwane then took steps to procure and submit a DHA1663 form for death registration. Kotwane said that the appellant promised to pay him an unspecified amount after the proceeds of a policy were received. Kotwane further testified that the form required completion by a doctor who examined the corpse and other participants in the process, and that he went to a doctor to complete the form.


Certain aspects of the evidence were undisputed to the extent that Kotwane did in fact handle the DHA1663 process and engaged with Home Affairs officials in attempting to submit the form. It was also common cause on the record that Kotwane was the person who physically pursued the submission of documentation to Home Affairs.


However, the court identified material disputes and contradictions within the State’s case and between the State’s case and the charge sheet. There was a material contradiction between the evidence of Mosala (a Home Affairs official) and Kotwane on whether Kotwane came twice with an improperly completed form and whether Kotwane had money and sought to “buy” forms. Kotwane denied having money or intending to buy forms, though he accepted that he was sent back at least once because the relative’s particulars were missing.


A central factual feature relied on by the appeal court was Kotwane’s evidence that when he obtained fingerprints from a corpse that was not the deceased, and when he approached the doctor to complete the form without the doctor having seen the corpse, he did so without instructions from the appellant. Kotwane’s testimony was that the appellant had instructed him to register the death, but did not instruct him to falsify fingerprints or manufacture false supporting steps. The court also recorded that Kotwane said he did not see the corpse of the appellant’s grandmother, and that the only content he specifically sourced from the appellant was the address of the deceased.


The appellant’s version was that, after being informed of his grandmother’s death, he arranged for Kotwane to collect the corpse for storage pending funeral arrangements, and that he paid Kotwane R500.00 for storage. According to the appellant, two days later the appellant’s uncle collected the corpse because the family decided the funeral would take place in Lesotho, and the deceased was transported to Lesotho for burial.


The State advanced a contention (both at trial and on appeal) that the appellant fabricated the death and that there was no evidence of the grandmother’s body. The appeal court noted that this contention sat uneasily with the charge sheet, which itself alleged as a fact that the grandmother died in Lesotho, and the record contained no supporting evidence proving death in Lesotho. The police investigation did not include checking border or immigration records to confirm whether the body crossed from South Africa to Lesotho, a gap the appeal court regarded as weakening the State’s “no body” theory.


The court relied on further evidence from Mrs Venter, owner of the funeral parlour where Kotwane worked. Under cross-examination she conceded that Kotwane might have stored a body at another undertaker rather than at her parlour. This concession was treated as undermining the State’s argument that there was no corpse.


The court also relied on its assessment of Caiphus, a State witness who testified about workplace conflict with the appellant and purported investigations into unrelated matters such as alleged falsification of overtime records. The appeal court treated this evidence as irrelevant to the charge and as reflecting bias. It further noted that Caiphus’s testimony was substantially inferential and based on what he heard in court rather than direct observation.


3. Legal Issues


The central legal questions were whether the State proved beyond reasonable doubt that the appellant committed fraud by making (or causing to be made) a false representation to the Department of Home Affairs in relation to the DHA1663 death registration, and in particular whether it proved the specific allegations in the charge sheet that the appellant instructed Kotwane to obtain fingerprints of an unknown person and to submit false information.


A connected question was whether, on the totality of the evidence, the appellant’s version was reasonably possibly true, in which event he was entitled to an acquittal even if the court did not positively accept his version as true.


The dispute required the appeal court to evaluate the application of the criminal standard of proof to the facts, including credibility and reliability assessments, the probative value of a section 204 witness’s evidence, and whether the trial court misdirected itself in its factual findings and evaluative conclusions.


4. Court’s Reasoning


The appeal court approached the matter on the basis that the State bore the onus to prove guilt beyond reasonable doubt, and that an accused must be acquitted where the State fails to discharge that onus and where the accused’s version is not shown to be false beyond reasonable doubt and remains reasonably possibly true. The court referred to S v Shackell 2001 (4) SA 1 (SCA) in this regard.


On the evidence, the appeal court considered the charge sheet’s formulation to be materially at odds with what Kotwane actually testified. The State’s case, as charged, depended on proving that the appellant instructed Kotwane to obtain fingerprints of an unknown person and thereby submit false information. Yet Kotwane’s evidence, which the State relied upon, was that the falsification concerning fingerprints and the doctor’s completion of the form without seeing the corpse were steps taken by Kotwane on his own volition, motivated by his expectation of payment, and not at the appellant’s direction. The court treated this as a fundamental deficiency because it meant that the specific fraudulent conduct alleged against the appellant in the charge sheet was not proved on the State’s own evidence.


The court further reasoned that Kotwane’s evidence, properly understood, implicated Kotwane as the person who fabricated the misrepresentation and simultaneously tended to exonerate the appellant from directing or being privy to the manufacturing of falsified information. The court accepted that Kotwane may have been asked to register a death, but found no evidential basis showing that the appellant instructed or knew of the falsification that actually occurred.


The appeal court also evaluated the State’s alternative contention that the death was fabricated and that no corpse existed. It identified weaknesses in that theory, including that the police did not undertake investigative steps to verify whether the body crossed into Lesotho, and that the charge sheet’s own allegation that the grandmother died in Lesotho was unsupported by evidence. The concession by Venter that a body might have been stored elsewhere was treated as further undermining the State’s “no body” narrative.


In relation to Caiphus, the appeal court held that his evidence reflected bias and included irrelevant matters (such as overtime record allegations) that should not have been admitted or pursued as they had no bearing on the fraud charge. The court criticised the reliance placed on Caiphus’s conclusions and inferences drawn from other witnesses’ testimony rather than direct knowledge, and considered the State’s case to have been poorly investigated and overly dependent on a witness who “had an axe to grind” with the appellant.


Taking these considerations together, the appeal court concluded that the magistrate misdirected himself in finding that there was sufficient evidence to convict for fraud. On the appeal court’s assessment, the evidence pointed to Kotwane as the person who fabricated the misrepresentation to Home Affairs, and the State failed to prove beyond reasonable doubt that the appellant committed the offence charged or that the appellant’s version could be rejected as not reasonably possibly true.


5. Outcome and Relief


The appeal was upheld. The High Court set aside the appellant’s conviction on the fraud count and substituted it with a verdict that the accused was found not guilty and discharged.


The judgment, as recorded, did not make a separate order as to costs, and the operative relief was confined to setting aside the conviction and substituting an acquittal.


Cases Cited


S v Shackell 2001 (4) SA 1 (SCA).


Legislation Cited


Criminal Procedure Act 51 of 1977, section 204.


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The State did not prove beyond reasonable doubt that the appellant committed fraud as charged, particularly because the evidence of the State’s principal witness (a section 204 witness) indicated that the falsification of fingerprints and associated misrepresentations were undertaken by that witness independently and not on the appellant’s instructions. The trial court’s conviction was set aside and replaced with a finding of not guilty and a discharge.


LEGAL PRINCIPLES


The State bears the burden of proving an accused’s guilt beyond reasonable doubt. Where the State fails to discharge that onus, and where the accused’s version is not shown to be false beyond reasonable doubt and remains reasonably possibly true, the accused is entitled to an acquittal, as applied with reference to S v Shackell 2001 (4) SA 1 (SCA).


Where the prosecution case is formulated on specific alleged conduct in the charge sheet, a conviction cannot stand if the State’s own evidence does not establish those allegations. Evidence that the fraudulent acts were undertaken by another person acting independently, without proof of the accused’s instruction, knowledge, or participation in the falsification, undermines proof of the accused’s guilt on the charge as framed.


The assessment of evidence includes attention to investigative gaps, internal contradictions, and the probative value of testimony from potentially biased witnesses. Irrelevant collateral allegations unconnected to the charge may improperly influence fact-finding and, where relied upon, may contribute to misdirection.

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[2017] ZAGPPHC 132
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Loate v S (A561/2015) [2017] ZAGPPHC 132 (9 March 2017)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
D
I
VISION, PRETORIA
DATE:
9/3/2017
CASE
NUMBER:
A58
1
/20
1
5
In
the matter between:
STEPHEN
STRIKE
L
OATE
Appellant
and
THE
STATE
Respondent
JUDGMENT
M
OTHLE
J
1.
On 22 September 2014, Appellant was tried in the Regional Court
Oberholzer where on 21 May 2015 he was convicted on one count
of
fraud and acquitted on the other count of intimidation. He was
sentenced to a R5,000.00 fine or 2 years imprisonment which was

wholly suspended for 3 years on condition that he is not convicted of
the same offence committed during the period of suspension.
2.
On 12 June 2015, Appellant brought an application for leave to appeal
his conviction which application was granted. He now comes
before the
Appeal Court of this division.
3.
According to the charge sheet, Appellant's offence is described as
follows:
“
That
the
accused is
guilty of
the
crime
of
fraud.
In
that
on
or
about
22
March
2011
and
at
or
near
Home
Affairs, in the Regional Division of Gauteng, the accused to wit
Stephen Strike Loate did unlawfully and falsely and with the
intent
to defraud and to
prejudice or
potential
prejudice of Home Affairs give out and pretend to DHA1663 was correct
whereas in truth and in fact when the accused gave out and
pretended
as
aforesaid
he
knew
that:
HE
HAD INSTRUCTED FRED KOTWANE TO OBTAIN FINGERPRINTS OF AN UNKNOWN
PERSON AND THAT MRS MASENA DID NOT DIE WITHIN THE DISTRICT OF

OBERHOLZER BUT DIED IN LESOTHO."
4.
The State called several witnesses, some of whom were Appellant's
co-workers at the Department of Home Affairs. In essence the
State's
case is that Appellant. instructed one Fred Kotwane to fraudulently
cause to be registered, the death of Appellant’s
grandmother,
Mrs Masena.
5.
The State's
case rests main
l
y
on the evidence of, Fred Kotwane
("Kotwane")
who was
a Section
204 witness
[1]
and who testified
under a
promise
of
indemnity
from
prosecution
as
follows:
5.1
He met Appellant when the latter had invited him to a meeting at Home
Affairs together
with other people. At the end of that meeting
Appellant then requested him to register the death of his grandmother
with the promise
that he will pay him an unspecified amount of money
after he has received proceeds from a policy, presumably on the life
of the
grandmother;
5.2
He then obtained the Home Affairs form known as DHA1663 which needs
to be completed
in order to register the death of a person. He
obtained a fingerprint of a body from his funeral undertaker and took
the form to
the doctor who completed it.
According
to the evidence by one of the State witnesses Venter, the form has to
be completed by the doctor who had examined the
corpse, the driver
who transports the corpse from the hospital with his or her
fingerprint on the form as well as a relative who
can claim the
identity of the deceased;
5.3
Kotwane then attended to Home Affairs where he met Mosala who
testified that he sent
him (Kotwane) back to complete the form on two
occasions. There is a material contradiction between the version of
Mosala and that
of Kotwane. Mosala testified that Kotwane came twice
to him and on each occasion he sent him back with a form that was not
properly
completed. Mosala further testified that Kotwane had money
with him and wanted to buy the forms from him. Kotwane denied that he

had any money in his possession or intended to buy the forms from
Mosala. However, he confirmed that he had to go back on the first

occasion because the form did not have the particulars of the
deceased's relative;
5.4
Kotwane further testified that he went to the Appellant to complete
the portion for
the relative and submitted the form which was finally
accepted and the information included on the data base of Home
Affairs.
6.
Of significance in his evidence, Kotwane testified that when he went
to take the fingerprints of the corpse that was not the
deceased, he
was not acting under the instructions of Appellant. Further, when he
went to see the doctor to complete the form
again
he was not acting on instructions of the Appellant. All that
Appellant had told him was to register the death of his grandmother.

There is dispute between the Appellant and Kotwane in regard to the
allegation that Kotwane will be paid some money after the policy
has
paid out. Kotwane testified that Appellant never gave him any money.
7.
From the evidence on the record, it appears that Kotwane, being under
the impression that he was making money, took steps, acting
on his
own volition, to falsify information on the forms, thinking that he
will be paid. This misrepresentation on the form, on
his own
testimony, was of his own doing. The one exception concerning the
content of the form is that he testified that he obtained
the address
of the deceased from Appellant. He further testified that he did not
see the corpse of  Appellant’s
grandmother.
8.
The charge sheet as stated above is that Appellant had instructed
Kotwane to obtain false fingerprints from a corpse and submit
such
false information to the Department of Home Affairs. On the evidence
of Kotwane, this charge was not proved. Kotwane, contrary
to what is
alleged in the charge sheet, testified that he falsified and
misrepresented the fingerprint of the grandmother and completed
the
form with the doctor who had not seen the corpse. He effected this
misrepresentation on his own, thinking that he will be paid.
Nowhere
is there any evidence that indicates that the Appellant had
instructed Kotwane to falsify information or was privy to his

activities in manufacturing falsified information that is on the
registration form.
9.
Appellant’s version is that upon being informed that his
grandmother has died, he arranged with Kotwane to collect the
corpse
to store it until they would inform him as to the funeral
arrangements.   To this end, Kotwane came to the house
to
collect the corpse and he was given R500.00 for storage.  Two
days thereafter Appellant's uncle came and fetched the corpse
as the
family had decided that the funeral would be in Lesotho.
The
deceased was, according to the Appellant, transported to Lesotho for
burial.
10.
The State's contention during the trial and even on appeal is that
the Appellant fabricated the death of his grandmother and
that there
was no evidence of a body of his grandmother. This version is also
contrary to what is contained in the charge sheet,
namely, that
according to the prosecution, Appellant’s grandmother died in
Lesotho. This allegation is stated as a fact in
the charge sheet.
This theory of the non-existence of a corpse appears to be based on
the evidence of one Caiphus who testified
for the State. Caiphus
testified how there had been bad blood between him and Appellant
relating to employment matters and that
he investigated what he
alleged to be fraudulent conduct on the part of Appellant including
falsifying overtime records.
11.
The Appeal Court is unable to understand why the Magistrate allowed
the evidence concerning overtime records in Home Affairs
to go on the
record when it had absolutely nothing to do with the charge that
Appellant was facing. Further, the record reflects
that Caiphus made
a startling allegation that because Appellant did not ask for leave
on account of his grandmother's passing,
implies that he was
fabricating her death! He was biased against the Appellant in his
testimony and based his evidence purely on
what he heard other
witnesses testify in Court. His evidence was based on the
interpretation and conclusions he arrived at after
hearing the
evidence of others in Court. For example he concluded, even before
the doctor testified, that the doctor had not seen·
the corpse
of the deceased. When questioned whether he was with the doctor all
the time to attest to this assertion, he started
first being evasive
and rude to Appellant's counsel, then referred the Court to the
evidence of Kotwane, from which he drew inference
to form that view.
12.
Du
ring the hearing of this appeal, the Court asked the State
counsel whether the police investigator took any means to enquire
from
the immigration authorities with reference to the records at the
border of South Africa and Lesotho, whether the body of the deceased

exited South Africa en route to Lesotho for burial at any time. This
the police did not do. The failure to conduct this investigation

weakens the State's allegation that there was no evidence of a corpse
of the grandmother. In the charge sheet it is alleged that
"Mrs
Masena
did
not
die in
the district of Oberholtzer but
died in
Lesotho.”
There is no evidence to support this
allegation of Mrs Masena's death in Lesotho.
13.
What is fatal to the State's case is that one of the State witnesses,
Mrs Venter, who was the owner of the funeral parlour where
Kotwane
was employed, conceded under cross examination that Kotwane might
have stored the body at another funeral undertaker and
not at her
parlour where he was employed.
14.
It seems to me that the Magistrate misdirected himself by concluding
that there was sufficient evidence to convict the Appellant
on the
crime of fraud. On the contrary, the evidence of the State points at
Kotwane as the person who fabricated documents to misrepresent
facts
and thereby defraud the Department of Home Affairs.
15.
Kotwane's own evidence implicates him and exonerates the Appellant.
On his own evidence, he fabricated the misrepresentation
himself
without any instructions from Appellant.
16.
I
n
my
view,
the State
has
failed
to prove
i
ts
case
against
Appellant
beyond
reasonable
doubt.
See
i
n
this
regard
S
v
Shacke
ll
[2]
.
I
n
addition,
there
i
s
nothing
i
n
the
evidence
of
the state
to
gainsay
the
version
of
Appellant
as
not
being
reasonably
possib
l
y
true.
17.
If anything, the case was poorly investigated and the conviction
seems to rest on the evidence of Caiphus who, by his own admission,

had an axe to grind with Appellant. The Magistrate should have found
the Appellant not guilty and discharged him. There is therefore
a
basis for this Court to intervene.
18.
In the premises I make the following order:
1.
The conviction of Appellant on one count of fraud by the Magistrate
Oberholzer is hereby
set aside and substituted by the following:
“
The
accused is found not
guilty and
is
discharged.”
_______________________
S
P MOTHLE
Judge
of
the
high
Court
Gauteng
D
i
vision,
Pretoria.
I
concur
_______________________
T
THOBANE
Acting
Judge of the High court
Gauteng
Division, Pretoria.
For
Appellant:
Adv. Riaan Gissing
Instructed
by:
Danie
Van Zyl Attorneys
Cartetonville
For
the
State
Adv. Amo J Rossouw
Instructed
by:
The
Director
of
Public
Prosecutions,
Pretoria
[1]
Section
204
of
the.
Criminal
Procedure
Act
51
of
1977
,
where
would-be
accused
i
s
requested by
the State
to testify against
the other
accused on promise of being
discharged
from
prosecution
If
he/she
testifies
honestly and
satisfactorily.
[2]
2001
(4)
SA 1
(SCA)
at
1
21
to
1
38
paragraph
30.

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