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[2014] ZAGPPHC 488
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Du Plessis v S (A451/2009) [2014] ZAGPPHC 488 (21 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO:
A451/2009
DATE:
21 MAY 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter
between:
MARIA
GORETTI DU
PLESSIS
......................................................................................................
Applicant
and
THE
STATE
......................................................................................................................................
Respondent
JUDGMENT - Leave
to Appeal
MAKGOKA, J;
[1] This is an
application for leave to appeal against the order of the judgment of
this court handed down on 30 August 2013, in
terms of which the
applicant’s appeal against the conviction on 10 counts of
fraud, was dismissed. The application is opposed
by the State.
[2]
The test applicable whether or not to grant leave to appeal, is trite
and well settled. At common law
1
is has always been whether there are reasonable prospects that
another court, given the same set of facts, might arrive to a
different
conclusion. The test was recently restated as follows:
The
mere possibility that another court might come to a different
conclusion was not sufficient, nor that it would offer solace
to the
applicant to know that the final decision in a serious case would be
given by a court of appeal. See S
v
Swanepoel
1978
(2) SA 410
(A)’.
2
[3] The main
complaint is two-fold: First, that this court erred in finding that
the thrust of the applicant’s evidence was
that someone else
knowing her password could have abused her FAT number to commit the
fraud. The following instances of her evidence
establish beyond
doubt, that this indeed was the thrust of her evidence. Firstly, the
applicant sought to rely on the fact that
some employees had
disclosed their passwords to others, and allowed them to use them, to
show that it was a ‘free for all’
situation. Secondly,
she suggested that appellant 2 might have known her password when she
worked with him during the latter’s
internship. Thirdly, she
testified that someone might have ‘stolen’ her password
during brief moments when she left
her station without logging off.
The applicant was therefore at pains to show that someone else, who
knew her FAT and password,
was responsible for the fraudulent
transactions. Generally, even a cursory regard to the trial record
would reveal that much effort
and energy were spent during the trial
on this aspect, especially by the applicant’s attorney during
cross-examination.
[4]
For these reasons it is disingenuous to now seek to disavow and
eschew that version. There is therefore simply no merit in this
contention. In fact, the fallacy of the argument is betrayed by the
contents of para [4] of the application for leave to appeal,
in which
the court is criticised for rejecting the applicant’s version
that someone else could have abused her password (wrongly
referred to
in the application for leave to appeal as the FAT number).
3
[5]
The second contention, which was heavily relied on in argument, is
that this court did not give due consideration to the possibility
that the fraudulent supporting documents and assessments may have
been handed to the applicant by someone else before she effected
the
fraudulent simulations. This is what counsel for the appellant, Mr
Muller
SC,
referred to as ‘the second defence’. The upshot of this
argument is that the applicant did not know that she was
committing
fraud as and when she received documents from her seniors, and that
the state had failed to prove that she knew that
fraud was being
committed. Counsel stressed that this defence was not ‘mentioned’
either by the trial court, nor this
court, and that for that reason,
there were prospects that another court might arrive to a different
conclusion.
[5]
In my view, so-called defence is based purely on speculative
hypotheses and remote possibilities. It is no defence at all, to,
in
the light of strong and incriminating evidence, shrug one’s
shoulders off, and plead ignorance. The inherent difficulty
with this
version is that it is at odds with the thrust of the applicant’s
defence, namely that someone else used her FAT
and passwords to
effect the fraudulent transactions. Implicit in that defence, is an
acknowledgement of knowledge that those transactions
were fraudulent.
This is a logical corollary. Unfortunately, in criminal proceedings,
one cannot plead defences in the alternate
without running into the
difficulty that the applicant now finds herself in. What is more,
with this ground of the application,
the applicant is inviting the
court to focus too intently on an individual part of the evidence,
whereas the correct method is
to have regard to the totality of the
evidence as a whole. In the present case, when one looks at the
totality of the evidence,
there is no indication that what is
contended for, would be of any assistance to the appellant within the
mosaic of the evidence.
Furthermore, as correctly argued by Mr
Mohlaka,
counsel
for the state, this so-called defence was only mooted for the first
time during the evidence in chief of the applicant,
with the result
that none of the state witnesses had an opportunity to comment on it.
[6]
The applicant seeks leave to appeal against the factual findings. The
approach to be adopted by a court of appeal when it deals
with such
findings, is found in the collective principles laid down in
R
v Dhlumayo
1948
(2) SA 677
(A). A court of appeal will not disturb the factual
finding of a trial court unless the latter had committed
misdirection. Where
there has been no misdirection on fact by the
trial Judge, the presumption is that his conclusion is correct. The
appeal court
will only reverse it where it is convinced that it is
wrong. In such a case, if the appeal court is merely left in doubt as
to
the correctness of the conclusion, then it will uphold it. See
also
DPP v S
2000
(2) SA 711
(T); S
v
Leve
2011
(1) SACR 87
(ECG); and
Minister
of Safety and Security and Others v Graig and Another NNO
2011
(1) SACR 469
(SCA). In the present matter, the applicant has, to my
mind, failed to identify any material misdirection in the manner in
which
the evidence was considered.
[7] As a result,
after careful, dispassionate and detached regard to the contents of
the notice of application for leave to appeal,
as well as the oral
arguments, I am unable to detect any material misdirection in the
evaluation of the evidence to justify a finding
that another court
might arrive to a different conclusion. The application for leave to
appeal falls to fail.
[8] In the result
the following order is made:
1. The applicant’s
application for leave to appeal against the judgment and order of
this court regarding the conviction is
dismissed.
TM MAKGOKA
JUDGE OF THE HIGH
COURT
l agree
N RANCHOD
JUDGE OF THE HIGH
COURT
DATE OF HEARING :
13 MAY 2014
JUDGMENT
DELIVERED : 21 MAY 2014
FOR THE APPLICANT
: ADV. G.C MULLER SC
INSTRUCTED BY :
GERHARD STOOP ATTORNEYS, PRETORIA
FOR THE
RESPONDENT : ADV. K.L MOHLAKA
INSTRUCTED BY :
DIRECTOR OF PUBLIC PROSECUTIONS,PRETORIA
1
This
common law test has now been codified in
s 17
of the
Superior Courts
Act, 10 of 2013
.
2
.9
v
Magudla
2010
(2) SA 316
(E) para 8.
3
The
non-significance of the FAT number was dealt with in paras [45], [47]
and [58] of this court’s judgment.