About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 20
|
|
S v Moreroa and Others (A523/2015) [2016] ZAGPPHC 20 (22 January 2016)
IN THE GAUTENG DIVISION
THE HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
CASE NO: A523/2015
DATE: 22 JANUARY 2016
In the matter between
THE
STATE
...............................................................................................................................
Appellant
AND
HELLEN
MOREROA
.................................................................................................
First
Respondent
SELBY
MANTANTHA
............................................................................................
Second
Respondent
OCEANSIDE TRADING 777
CC
.............................................................................
Third
Respondent
JUDGMENT
JANSEN J
[1] This matter is an appeal in terms
of section 310 of the Criminal Procedure Act 51 of 1977against the
discharge of the appellants
at the end of the State’s case in
terms of section 174 of the Criminal Procedure Act 51 of 1977 (“CPA")
by the
regional magistrate of Mokopane.
[2] The counts against the appellants
were: —
[2.1.] One count of corruption; and
[2.2] Three counts of contravention of
section 6(a)
, (b) and (c) of the
Prevention of Organised Crime Act
121 of 1998
.
[3] It bears mention that initially the
three respondents were charged with several other people and entities
on these counts, namely
the erstwhile co-accused number 3, Mr
Makgetsi Manthata (from the trial against On-Point Engineers (Pty)
Ltd), Mr Lesiba Cuthbert
Gwangwa (the CEO of On-Point), Gwama
Properties (Pty) Ltd, Mr Julius Sello Malema and Mr Kagiso Dichaba.
[4] For unknown reasons the State
decided to conduct two separate trials, one against the current
respondents, and the other against
the persons and entities referred
to in the preceding paragraph.
[5] In the court a quo the respondents
pleaded not guilty and elected not to give a plea explanation.
[6] A certain Mr Trevor White compiled
a report in respect of all of the accused initially charged which he
sought to utilise in
this separate trial against the respondents. The
State sought to rely on this combined report in these proceedings but
did not
heed the warning by the respondents’ counsel that it
consisted, in the main, of hearsay evidence and pertained to other
entities
and people than the current respondents.
[7] The evidence led by the State was
that of three witnesses. Affidavit evidence by three further
witnesses was handed in by consent.
[8] Various admissions were made by the
respondents in terms of
section 220
of the CPA, the most important of
which was that Mr Ntau Letebele, in his capacity as Head of
Department of Roads and Transport,
Limpopo, awarded a tender under
bid number PUD 435 to the third respondent after recommendations were
made to him by the Bid Evaluation
Committee (“BEC”) and
the Bid Adjudication Committee (“BAC”).
[9] The respondents also admitted to
making a payment of an amount of R1000 000.00 to the entity On-Point
Engineering (Pty) Ltd
(“On-Point”) or Mr Lesiba Gwangwa
the CEO of On-Point, but denied that there was any corruption
involved. On their
version, the third respondent was part of a joint
agreement between it and On-Point.
[10] After the State’s evidence
had been led, the respondents sought an acquittal in terms of
section
174
which was opposed by the appellant but granted in an ex tempore
judgment by the magistrate. The magistrate supplemented his reasons
upon the request by the appellant and denied them leave to appeal to
the full court of this division. Leave to appeal was granted
by this
court on 11 May 2015, in terms of
section 310(2)
of the CPA.
Grounds of Appeal:
[11] It was argued on behalf of the
appellant that the magistrate had applied the wrong test for
acquittal in terms of
section 174
of the CPA. The correct test was
submitted to be whether a reasonable presiding officer may have
convicted on the evidence which
had been placed before him.
[12] Reference was made to the further
reasons furnished by the magistrate wherein it was stated: —
"The court after considering the
evidence (and for that matter not satisfied) beyond a reasonable
doubt that the only reasonable
inference
[13] The learned magistrate was
criticized for accepting as evidence the loan and joint venture
agreements which were tendered during
cross-examination of the
witnesses for the appellant. It was argued that these documents were
indicative of a justification for
the payment of R1 million to the
entity On-Point. Furthermore, the contents of a ledger of the third
respondent were effectively
argued from the bar - which the appellant
branded in its heads of argument as counsel for the respondents
effectively proffering
evidence.
[14] Thus, the appeal, in essence,
turns on two grounds.
[15] The appellant’s case, as
presented at the trial, was summarised in the respondents’
heads of argument as follows:
—
APPELLANT’S CASE
8. As appears from the charge sheet and
the evidence led at trial, the Appellant’s case seems to be
that: —
8.1 The Third Respondent (“Oceanside”)
was awarded a Tender by the Department of Roads and Transport,
Limpopo (“the
Department”) for the maintenance of road
D1656 from Mica to the Oaks in the Mopani District Limpopo (“the
Tender”);
8.2 There were a total of 18 bidders
for the Tender;
8.3 At the request of the Department, a
consulting firm by the name of Khuvutlu: Water, Consulting, Roads and
Services CC (“KWCRS”)
provided an independent Tender
technical evaluation report on the Tender, stating inter alia that a
National Qualification Framework
(NQF) certificate was a qualifying
requirement. KWCRS did not recommend Oceanside as being eligible for
the award of the said Tender;
8.4 On-Point Engineers (Pty) Ltd
(“On-Point”) was awarded a contract to be the Project
Management Unit for the Department.
The various services to be
rendered by On- Point to the Department included monitoring and
management of all planned and unplanned
maintenance activities;
8.5. Employees of On-Point, Mr Tshiamo
Dichabe and Mr E Leolo (which parties replaced Mr Lesiba Gwangwa, the
CEO of On-Point) sat
on the Bid Evaluation Committee (“BEC”)
and awarded identical high/maximum scores to Oceanside for Bid
Evaluation Functionality;
8.6. Oceanside’s bid allegedly
did not meet the NQF certificate and other qualifying requirements,
but was despite those shortcomings
not disqualified by the BEC;
8.7 Other bidders were disqualified by
the BEC for not meeting the NQF certificate as a qualifying
requirement;
8.8. Oceanside was allegedly given an
opportunity to submit the outstanding NQF certificate whilst other
bidders were not given
the same opportunity to submit the said NQF
certificate;
8.9 Oceanside was awarded the Tender on
the recommendations of the BEC;
8.10. The Department at the
recommendation of On-Point as the Project Management Unit, made three
payments to Oceanside totalling
R 6185 035.14 to Oceanside’s
FNB bank account;
8.11. On-Point and Oceanside had what
purported to be a joint venture agreement;
8.12. Oceanside made payment of R1
million to a conveyancer, Kampherbeek, Twine and Pogrund Attorneys
(“Kampherbeek”)
for the benefit of the Ratanang Trust;
whose trustees are Julius Sello Malema and his grandmother. The R 1
million was used as
a part payment for the purchase of the remaining
portion of Farm
Schuilkraal 632 by the Ratanang Trust;
8.13 Julius Sello Mamela was also a
shareholder of On-Point through the Ratanang Trust;
8.14 The First Respondent was the sole
member of Oceanside;
8.15. The First and Second Respondents
were signatories on the Oceanside Nedbank Account;
8.16 There was no legitimate nor lawful
reason for the Respondents to make payment to Kampherbeek, Twine and
Pogrund Attorneys;
8.17 As a result of a later arrangement
between Julius Sello Malema (representing Ratanang Trust) and
Kampherbeek, the same payment
was later used by Gwama Properties
(whose sole director is Lesiba Gwangwa, the CEO of On-Point) to
purchase the same farm;
8.18. The awarding of the Tender to
Oceanside was influenced by the payment of R1 million which was
indirectly made to and benefited
Lesiba Gwangwa
[16] From the above synopsis of the
evidence prepared by the respondents’ counsel, which is
accurate in all respects, it is
clear that the relationships between
the respondents and other entities consisted of a veritable maze of
interlinked connections
creating a quagmire. That there are various
areas of overlap in interests is clear, as was candidly admitted by
counsel for the
respondents.
Analysis of the evidence:
Mr Trevor White
[17] Mr Trevor White, a director at
Price Waterhouse Coopers was the appellant’s first witness.
[18] As argued on behalf of the
respondents, his attempts to rely on his report, referencing the
testimony of various witnesses
who were not called to testify,
constituted hearsay evidence. As a result, he sought to cull his
report, but by doing so, made
it even less coherent. It became a
fragmented and incoherent report, and still contained hearsay
evidence. He was also not a credible
witness and refused to make
concessions regarding simple details. That Mr White had difficulties
in answering some of the questions
during cross-examination was
readily conceded by the appellant.
[19] During cross-examination Mr White
conceded that other bidders, who had also not submitted the requisite
National Qualification
Framework (“NQF”) certificates,
were not requested to remedy the defect, whereas the third respondent
was. This evidence
was corroborated by the affidavit of Mr Jack
Pelser, who represented an unsuccessful bidder. This evidence was not
even led by
Mr White, contrary to the tenet of law that even evidence
unfavourable to a party’s case must be tendered.
[20] Mr White made the further
important concession that the Head of Department and nobody else
chooses which persons will make
up the BEC as well as the Bid
Adjudication Committee (“BAC”). It was not proved by the
appellant that the Head of Department
or the BAC had been influenced
by the respondents in any manner or form. This evidence was not even
led by Mr White contrary to
the tenet that even evidence unfavourable
to a party’s case must be tendered.
[21] Mr White further conceded that
after the tender was awarded it was satisfactorily and properly
executed.
[22] Mr White also testified that the
third respondent did not qualify for the tender but was forced to
concede, during cross-examination,
that he lacked the expertise to
ascertain whether the third respondent was properly qualified and
never sought to ascertain whether
it was. Hence this evidence of Mr
White has no evidentiary value.
[23] Mr White could not gainsay the
respondents’ version that after the completion of the tender
the third respondent entered
into a joint venture agreement in
respect of a completely different project with the Department of
Housing, that the joint venture
secured this project, and that a
written loan agreement was entered into by the Department of Housing
and the joint venture in
terms of which a R1 million loan was made by
the partners of the joint venture to the Department of Housing.
[24] In fact, notwithstanding his
testimony that he was fully aware of the joint venture referred to
above and the written loan
agreement, he persisted adopting the
stance that the R1 million had arbitrarily been paid to the
Department of Housing. In fact,
Mr White had even requested to have
sight of the written loan agreement and elected to ignore it.
[25] These facts were not disclosed to
the court in Mr White’s evidence in chief which is an important
omission in Mr White’s
testimony. In fact, both the
written loan agreement and the joint
venture agreement were proffered to the court as exhibits by the
appellant’s counsel.
Mr White’s silence in this regard in
respect of important documents raises serious doubts about his
credibility.
[26] Furthermore, the funds paid to the
third respondent in terms of the tender awarded to it into its First
National Bank account
were never transferred from this account to the
third respondent’s account from which the R1 million was paid
to Kampherbeek,
Twine and Pogrund Attorneys as set out above. Hence,
Mr White’s evidence that he found the transfer of R1 million
"suspicious”
was not based on any facts.
[27] A fatal concession by Mr White was
that he, himself, never assessed any of the bids, and that he placed
reliance on other sources
for his testimony - in particular KWCRS
(the report of which contained many errors as was demonstrated during
the trial).
[28] Mr White’s edifice of cards
also teetered when he drew a negative inference from the fact that a
company of which the
second respondent was a director also bid for
the same tender. It is wholly unclear to the court why a negative
inference was drawn
by Mr White based on this fact.
[29] Mr White was constrained to
concede that Mr Gwangwa was neither involved in the final assessment
of the tenders nor, as was
suggested, did he instruct his employees
to act in a certain manner. He was further constrained to admit that
he had no evidence
to demonstrate that the respondents somehow sought
to influence the evaluation of the tenders. Neither could he assert
that the
respondents knew anything about the composition of On-Point;
nor the transaction involving the farm Schuilkraal.
[30] Mr White further conceded that he
did not know from where the R1 million was obtained and was forced to
concede that the R1
million, on the evidence available to him, was
legitimately paid to On-Point. This loan was initially never recorded
in On-Point’s
ledger, but Mr White conceded that this omission
could not be attributed to any of the respondents. Furthermore, Mr
White was constrained
to admit that he did not know whether the
subsequent auditor of On-Point had changed the general ledger to
reflect the loan nor
did he examine the year-end financial statements
to ascertain whether the loan was reflected therein.
[31] Mr White was so hard-pressed to
answer questions in cross-examination that he sought to argue his
report away, which made no
reference to the joint venture agreement
and the loan agreement (of which he was fully aware) by alleging that
the appellant did
not allow him to amend his report. This explanation
needs only be stated to be rejected.
[32] Mr White also conceded that he was
unaware of any loans between Mr Malema, Mr Gwanga and the respondents
when the tender was
awarded to the third respondent. Furthermore, he
did not even seek to consult the respondents before preparing his
report.
[33] Having admitted that he could not
amend certain aspects of his report, he admitted that he did.
however, amend the report to
indicate that the first and the second
respondent were married to each other. Mr White could not explain
what the purpose of this
amendment was.
[34] The erstwhile accused number 3 was
further charged because he was a signatory of the third respondent’s
Nedbank Account
even though he was no longer such a signatory when
the R1 million was loaned to On-Point.
[35] Furthermore, Mr White did not
question the validity of the tender which gave rise to the joint
venture agreement between On-Point
and the third respondent.
[36] Mr White even conceded the fact
that his report was flawed due to the plethora of errors reflected
therein.
[37] From what is set out above
regarding Mr White’s evidence, it is patently clear that he was
an unreliable witness who
did not disclose to the court any evidence
negative to the appellant. He was clearly biased in drawing negative
inferences against
the respondents without any evidentiary basis.
Mr Vhonani Stanley
[38] The second witness for the
appellant was Mr Vhonani Stanley Makondo, the managing director of a
close corporation Khuvutlu
Water and Costs Recovery Solution CC
(“KWCRS”).
[39] KWCRS was the entity requested by
the Roads Agency, Limpopo, to evaluate tenders and to submit a
technical evaluation. The
Roads Agency was replaced by the Department
of Roads and Transport and KWCRS had to report to it.
[40] Mr Makondo testified that KWCRS
could make recommendations only but that the decision as to which
entity to appoint was the
function of the Department of Roads and
Transport. He admitted that one of companies recommended by KWCRS
should also have been
disqualified because it did not comply with the
requirements of the tender. Mr Makondo’s testimony was that it
was normal
practice to appoint external engineers to make
recommendations to assist the Department of Roads and Transport in
its evaluation
process of tenders. Nothing turned on this point. Mr
Makondo conceded that he did not rectify his report, notwithstanding
his knowledge
that the entity referred to above should have been
disqualified due to non-compliance, but alleged no wrongdoing on his
part. He
was also forced to concede that the third respondent
completed the tender satisfactorily and that a completion of work
certificate
was issued to the third appellant.
Mr Serai Ravat
[41] The third witness for the
appellant was Mr Seraj Ravat, an accountant and a witness called to
testify in terms of
section 204
of the CPA. He was the accountant for
On-Point and appointed in this capacity during May or June 2010 by Mr
Gwangwa. He resigned
at the end of financial year of 29 February 2012
and could not recall whether he furnished management accounts for
that year to
Mr Gwangwa. Mr Ravat’s testimony revolved around
On-Point’s financial records for the fiscal year commencing 1
March
2011, ending 29 February 2012. On his own version, the
respondents were unknown to him.
[42] He testified that the On-Point
ledger relied on by the appellant was incomplete. The ledger
admittedly did not reflect the
R1 million amount, but Mr Ravat made
it clear, in evidence, that he was the author of the ledger which had
never been approved
by Mr Gwangwa. In fact, he had informed Mr White
that the ledger was incomplete, a fact which Mr White conveniently
omitted to
mention in his evidence in chief. He then changed his
version and testified that he had never told Mr White that the ledger
was
incomplete. When he handed the ledger to the Hawks and the South
African Police he also refrained from telling them that the ledger
was incomplete. He conceded that the court could not rely on an
incomplete document. His evidence was unsatisfactory in the extreme
and he was neither credible nor honest. He sought to evade questions
during cross-examination.
Ms Jennifer Louise Kotze
[43] The fourth witness for the
appellant was Ms Jennifer Louise Kotze, who, with her husband, were
the former owners of the farm
Schuilkraal. She was clear in her
evidence that she did not know the respondents, that Mr Julius Malema
had offered to purchase
the farm for R3.9 million and that she did
not know who de facto paid the purchase price as these aspects were
handled by her attorneys.
Her evidence was wholly irrelevant for
purposes of implicating any of the respondents.
Mr Paul Shitlhangu:
[44] The fifth witness for the
appellant was Mr Paul Shitlhangu, an employee of the Department of
Roads and Transport, Limpopo.
He was a member of the BEC which
awarded the tender to the third respondent.
[45] He testified that KWCRS and the
BEC decided upon tender specifications. The purpose of such
specifications was to ensure uniformity
and an adherence to certain
standards.
[46] According to his was testimony
there are two stages when assessing a tender: first, administrative
compliance, then functionality.
The results for both phases dictate
whether a bid would be successful. For purposes of the tender in
issue, the BEC accepted the
KWCRS’s report unconditionally. The
BEC was advised that the second phase had to be conducted by it and
could not be delegated.
The BEC consisted of four members and a fifth
member, the Secretariat. Two of the four members were employees of
the Department
of Roads and Transport and two were employees of
On-Point. These two employees were later replaced by other members,
the names
of which eluded the witness (allegedly due to the fact that
they had to tend to other commitments).
[47] Due to the work load, the bid
evaluation took place over a number of days and sittings. It could
only sit when a quorum of
the members was present - that is 50% of
the members of the BEC. Members were allowed to consult with one
another and it was quite
possible that members could arrive at the
same score. There existed no guidelines or policy as to how to deal
with a consulting
engineer such as KWCRS’s recommendations.
Accepting its recommendations was therefore not irregular. He
conceded that the
convenor of the BEC, Mr Lefuane, was not available
to participate in the evaluation and that the KWCRS’s report
was not prescriptive.
His evidence was to the effect that no
irregularities occurred and if there were, they could not be
attributed to the tenderers.
[48] The appellant then closed its
case.
[49] To state that the evidence that
was led contained various lacunae and did not implicate the
respondents, is clear from the
evidence set out above. Clearly the
presentation of the evidence was not structured and the trial was
conducted in a haphazard
fashion.
The test to be applied when
section 174
of the CPA is invoked:
[50]
Section 174
of the CPA provides
that if at the close of the case for the prosecution, the court
opines that there is no evidence that the accused
committed the
offence in the charge sheet or any other offence which may be
imposed, the accused may be acquitted.
[51] The use of the term "no”
means no evidence upon which a reasonable man, acting carefully, may
acquit. This interpretation
was laid down by the AD in 1925 in the
case of R v Shein
1925 AD 6
at page 6 and has never been deviated
from. Credibility of witnesses plays a lesser role only because
evidence will only be ignored
if it is of such a poor quality that no
reasonable person could possibly rely on it, as was held in S v
Mpetha and others
1983 (4) SA 262
(C) at 265E-G.
[52] Shakenovsky J in S v Swartz and
another 2001 (1) SACR (W) at 335E-F held that credibility was a
factor in assessing the evidentiary
value of evidence and concluded
that when a conspectus of the evidence leads to the ineluctable
conclusion that the evidence is
of such a poor quality that the
reasonable man acting carefully could not convict thereon, an
acquittal must follow in terms of
section 174.
[53] Given the prescripts of the
Constitution, no accused may be forced to testify in order to assist
the State in proving its case.
This was emphasised by the SCA in S v
Lubaxu
2001 (2) SACR 703
(SCA) paragraph [19]. This was the case even
before the advent of the Constitution and a court, mero motu, was
duty bound to acquit
an accused in the absence of “no”
evidence as the term is understood within the context of section 174.
[54] Section 174 hence caters for the
prescripts of the Constitution for a fair criminal trial namely the
presumption of innocence
on the part of an accused until proven
guilty, and his or her right to silence. It further puts an abrupt
end to a case which has
no prospects of being successful in
circumstances where the evidence falls abysmally short in proving
even a prima facie case against
an accused. Thus valuable court time
is not wasted and unnecessary expenses not incurred.
[55] The task for acquittal is
therefore simple and straightforward. Even though the magistrate
referred in his further reasons
to an onus “beyond a reasonable
doubt” he clearly applied the test in terms of section 174 and
correctly decided that
only an acquittal could follow given the
mishmash of evidence adduced.
The appellant’s contentions:
[56] Mr White testified that KWCRS
disqualified the third respondent for non- compliance, yet the BEC
recommended its appointment.
[57] The amount of R1 million was paid
by the third respondent through the first and second respondent to
On-Point after On-Point
had strongly recommended to the BEC that the
tender be awarded to the third respondent. This amount was used as
part payment of
a farm for Gwangwa Properties (Pty) Ltd whose sole
director was also the CEO of On-Point.
[58] Mr White testified that two
employees of On-Point were members of the BEC which appointed the
third respondent. At the same
time during the bid process Mr Gwangwa
was a member of the BEC.
[59] Mr Stanley Makondo confirmed that
his company KWCRS was appointed as consultants regarding the project
to which the tender
relates. It compiled a
report which was handed to On-Point,
the Project Management Unit (“PMU”) of the Department of
Roads and Transport. Two
of the three members who scored the tenders,
were employees of On-Point.
[60] Mr Ravat testified that the
financial records of On-Point for the 2011/2012 financial year which
he had drafted, nowhere reflects
the entry of a loan of R1 million.
He clearly stated that he was dependent on his client for the source
documents, none of which
were provided to him and that he could not
confirm the financial statements. The financial statements further
reflected a wrong
date due to a default setting and not any conduct
attributable to him.
[61] Ms Jennifer Louise Kotze’s
evidence was uncontested. Initially the purchaser of the farm was the
Ratanang Trust represented
by Mr Julius Malema. At a later stage Mr
Malema cancelled the sale agreement and Gwangwa Properties
represented by Mr Gwangwa became
the purchaser of the farm.
[62] Mr Paul Shitlhangu was in the
employ of the Department of Roads and Transport and a member of the
BEC. He awarded lower scores
to the third respondent than the two
employees of On-Point who were also members of the BEC. It was
conceded by the respondents
that the tender was granted to the third
respondent on the recommendations made by the employees of On-Point
Engineering (Pty)
Ltd. They awarded identical high scores to the
third respondent which, on paper, had no expertise and the project
manager of which
had a basic ambulance certificate as his highest
qualification.
[63] Mr Makondo testified that the
tender bid of the third respondent should not even have been
evaluated by the BEC as it had automatically
been disqualified for
non-compliance with compulsory requirements. In terms of the report
of KWCRS, the third respondent failed
to qualify.
[64] Yet employees of On-Point who sat
on the BEC awarded identical high scores to the third respondent
resulting, in the end, in
it being awarded the tender. Criteria such
as years of experience were simply ignored. The alleged "loan’'
of R1 million
is a sham as it is interest-free, was not disclosed to
the bookkeeper Mr Ravat, has no fixed term of repayment(s) which are,
in
any event, dependent upon an uncertain future event.
[65] The appellant urged the court to
apply inferential reasoning as set out in R v Blom
1939 AD 188
and
subsequently approved in many other cases. It was held by Watermeyer
JA in Blom that there are two cardinal rules of logic
which cannot be
ignored when it comes to reasoning by inference which are that: (1)
the inference sought to be drawn must be consistent
with all the
proved facts.
(2) If it is not, then the inference
cannot be drawn. The proven facts should be such that they exclude
every reasonable inference
save the one sought to be drawn. If they
do not exclude other reasonable inferences, then doubt exists whether
the inference sought
to be drawn is correct.
[66] To date no repayments have been
made of the alleged loan of R1 million and thus the court should
infer that the R1 million
was a gift for the benefit of On- Point or
Mr Lesiba Sieber Gwangwa.
Conclusion:
[67] Counsel for the respondents, Mr
Hodes SC, readily admitted that what had taken place when the tender
to the third respondent
was awarded, certainly raises eyebrows to put
it mildly. Clearly the pieces of a jigsaw puzzle are present, but the
appellant failed
to build the jigsaw. One can see that a case could
perhaps be made out, but the appellant failed to join the dots.
Hence, although
the separate jigsaw pieces seem damning, conjointly
they never fell into place, to form a coherent picture.
[68] Further of importance, is that the
appellant did not request key witnesses to testify, such as the head
of the Department,
members of the BAC or Mr Dichaba or Mr Gwangwa,
the CEO of On-Point. Presumably they were not called because they
could not further
the appellant’s case. The court draws a
negative inference from this fact.
[69] Mr Hodes SC argued, however, that
the State had failed to establish the respondents’
participation in the award of the
tender. A further point made by Mr
Hodes SC was that the loan of R1 million was made during March 2011,
ten months after the tender
had been awarded and after the tender was
successfully completed. However, it is most certainly not unknown
that a bribe is only
paid sometime after the event.
[70] Although it is clear that many
irregularities tainted the tender process and that there were clear
conflicts of interest and
a nexus between the main players, the
State failed in proving any case on the
counts proffered against the respondents. Absent such evidence, no
case has been made out
against the respondents.
[71 ] The bizarre request was made to
the court that the matter should be set down de novo to be heard
afresh, apparently because
the magistrate had already decided that an
acquittal w'as warranted at the close of appellant’s case.
Clearly such an order
would not be competent and would, in any event,
amount to double jeopardy.
In the premises the following order is
proposed: —
Order
The appeal is dismissed.
JANSEN J
JUDGE OF/THE HIGH COURT
I agree and it is so ordered.
MOLEFE J
JUDGE OF THE HIGH COURT
For the appellant Advocate Z H
Nxumalo and Advocate B P M Moalosi
Instructed by the Director of Public
Prosecutions (012 401 0425)
For the Respondents Advocate Hodes
SC and Advocate T Mabuda
Instructed by Jack Hajibey Inc c/o
Rooth and Wessels Inc (012 425 4008) (Ref Liam Groome/MAT24758)