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[2014] ZAFSHC 24
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Mekgoe v S (A183/2013) [2014] ZAFSHC 24 (3 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A183/2013
In
the appeal between:
DANNY
MEKGOE
..........................................................................................
Appellant
and
THE
STATE
.................................................................................................
Respondent
CORAM:
DAFFUE, J
et
NAIDOO,
J
JUDGMENT
BY:
DAFFUE, J
HEARD
ON:
3 MARCH 2014
DELIVERED
ON:
13 MARCH 2014
INTRODUCTION
[1]
This is an appeal with leave of this court, per Ebrahim J and Thamage
AJ, against the appellant’s conviction on a count
of fraud and
his sentence of 15 years’ imprisonment by the regional court
sitting at Bothaville.
[2]
Although leave was granted to appeal against both conviction and
sentence, Mr Nel on behalf of appellant made it clear in his
heads of
argument and his introductory remarks when he addressed us in open
court that appellant did not seek leave to appeal against
sentence,
that the aforesaid judges granted such leave erroneously and that
appellant wishes to appeal his conviction only.
Consequently he
refrained from addressing any arguments to the court
a
quo
and to us to the effect that the
prescribed minimum sentence of 15 years’ imprisonment was an
inappropriate sentence.
I shall therefore consider the merits
of the appeal pertaining to the conviction only.
THE
COURT
A QUO
’S CONCLUSIONS
[3]
I shall tabulate the material facts
infra
but for purposes of an understanding of this judgment it is
appropriate to mention the following:
(i)
On 27 November 2008 a cheque of the Nala Municipality (“the
municipality”) in Bothaville in the amount of R665 293.12
was deposited into the account of Mekgoe Transport CC held with First
National Bank (FNB) in Bothaville. Upon queries raised
by a
bank official, payment of this cheque was stopped eventually.
Mekgoe Transport CC did not deliver any services to the
municipality
and was not a creditor of the municipality at any stage.
Fortunately and as a result of payment of the cheque
having been
stopped, the municipality did not suffer any damages. Appellant
was the sole member of Mekgoe Transport CC at
that stage. The
court
a quo
considered the evidence, mainly circumstantial evidence on behalf of
the State, as well appellant’s version, and convicted
appellant
after concluding that it was totally improbable that senior members
of the municipality such as the municipal manager
and chief financial
officer would be involved in a conspiracy to discredit appellant and
in the process causing a cheque of the
municipality to be deposited
into the cheque account of appellant’s close corporation.
THE
GROUNDS OF APPEAL
[4]
Appellant relied on several grounds of appeal which will merely be
tabulated in this paragraph, but considered in detail
infra
.
The grounds of appeal contained in the petition and further
elaborated upon in the heads of argument and in oral argument are
the
following:
4.1
It is alleged that the court
a quo
misdirected itself in not assessing the evidence in its totality and
that it erred in finding that the proven facts support only
one
reasonable inference, namely that appellant actively assisted in
defrauding the municipality.
4.2
The court
a quo
failed to draw a negative inference against the State for failing to
call the municipality’s chief financial officer, Mr
Shongwe, as
a witness.
4.3
The court
a quo
erred in rejecting the evidence of the appellant and erred in
reasoning that it was improbable that a person (or persons) would
attempt to discredit the appellant by ensuring that money is
deposited in the bank account of his close corporation.
4.4
The trial court erred in not considering the municipal manager’s
possible involvement in the conspiracy to discredit appellant.
4.5
The court
a quo
erred in finding that the essential elements as set out in the charge
sheet had been proven by the State and/or that the offence
of fraud
had been proven.
THE
MATERIAL FACTS
[5]
Several material facts were not in dispute and thus common cause. The
following facts are tabulated:
(i)
Appellant was in the employ of the municipality, and in particular
the finance department thereof, as a creditor’s clerk
during
the relevant period.
(ii)
Appellant holds a B Com accounting degree from the Free State
University and was fully acquainted with the JD Edwards program
used
by the municipality until August 2008 in terms whereof cheques were
generated by computer.
(iii)
Appellant had knowledge of computers and often assisted other
employees in the finance department in the absence of the IT
manager.
He had access to the computer on which the particular cheque (and at
least two other cheques irrelevant for purposes hereof)
had been
generated. These cheques were generated on the JD Edwards system
which was not in use anymore during November/December
2008.
(iv)
On 13 November 2008 the appellant caused Mekgoe Transport CC (“the
CC”) to be registered with the Companies and
Intellectual
Properties Commission. He was the sole member of the CC at the
relevant time between 13 November 2008 and 4 December
2008.
(v)
A day after 13 November, on 14 November 2008, appellant applied to
the First National Bank (“the FNB”), Bothaville
for the
opening of a cheque account in the name of the CC. He was the sole
signatory on the account according to the relevant official
documents
handed in as exhibits.
(vi) In the event of service
delivery contracts to a value in excess of R200 000.00 the
municipality had to make use of tender
processes and in such cases
the procedure to obtain payment can be described as follows:
Once
a service provider has done services in respect of an approved
tender, it will provide the municipality with a request for
payment
together with the approved order in respect of the services to be
delivered, as well as the service provider’s invoice.
These documents are referred to the budget officer who shall indicate
that funds are available whereupon the documentation is referred
to
the chief financial officer, as well as the municipal manager who
have to approve payment. From there the documents with payment
approval are referred back to the creditors’ division in the
finance department whereupon a cheque is processed in favour
of the
service provider. The cheque together with the request for payment
and all supporting documentation is then referred to
two of the four
employees at the municipality who were entitled to sign cheques on
behalf of the municipality.
(vii) The four
signatories were Mr Thithi, the municipal manager, Mr Shongwe, the
chief financial officer, Mr Nxumalo, the director
of technical
services and Ms Dreyer, the assistant town treasurer. Once the cheque
is signed by any two of these four employees,
it is made available to
the service provider.
(viii) As
stated Ms Dreyer was the assistant town treasurer. At that time she
had been in the employ of the municipality for 26
years and was still
so employed when she testified. The other three employees have left
the municipality’s services in the
meantime.
(ix) Neither
the CC, nor appellant contracted with the municipality for any
service delivery at any stage and no amount was ever
payable by the
municipality to either, save in respect of appellant’s normal
monthly salary as a junior employee.
(x) On 27
November 2008 the municipality’s cheque dated 26 November 2008
in the amount of R665 293.12 in favour of Mekgoe
Transport CC and was
deposited into the aforesaid cheque account of the CC held at FNB.
This was done a mere 13 days after the
account of the CC was opened
and
ex facie
the
bank statement filed as an exhibit no other deposits were made prior
to or after this deposit during the period 13 November
to 31 December
2008.
(xi) Ms
MacKenzie, a teller at FNB, accepted the above deposit on behalf of
the bank. Although an attempt was made to show that
she could
positively confirm that appellant personally made the deposit, it is
apparent that she could not do so and the court
a
quo
correctly did not find as such.
(xii) Ms
Barendse, a relationship analyst at FNB, testified that FNB had an
internal system in place in terms whereof big deposits
with the bank
are investigated. As part of her duties she contacted the
municipality in respect of the deposit of the aforesaid
cheque.
Firstly, she spoke to Ms Dreyer of the municipality, who indicated
that she was not aware of the cheque and had to investigate
whether
there were any supporting documents in respect of the cheque, but who
also advised that Ms Barendse should phone Mr Shongwe,
the chief
financial officer. He was not helpful at all. Later that day she
contacted Ms Dreyer again who indicated that she had
to stop the
cheque. As the bank could not rely on telephonic instructions, she
was requested to prepare a letter with instructions
to that effect
from the municipality. However the next day a letter was found which
had been pushed underneath the door of her
manager by an unknown
person, it being on a letterhead of the municipality ostensibly
signed by the municipal manager indicating
that the cheque should be
paid out. She phoned Ms Dreyer again upon receipt of this letter
whereupon Ms Dreyer delivered by hand
the first of two written
instructions with two signatures of her and Mr Nxumalo, requesting
the bank to stop payment of the cheque.
(xiii) The
first written instruction from the municipality was not accepted by
the bank, who insisted on an improved written instruction.
Ms Dreyer
had contact with Mr Shongwe who instructed again that payment of the
cheque be stopped, whereupon a new letter, again
containing the
signatures of Mr Nxumalo and Ms Dreyer, was delivered to the bank.
(xiv) Mr
Thithi instructed Mr Shongwe to ensure that payment of the cheque is
stopped and insisted that, if required, the municipality’s
attorneys should be instructed to inform the bank that it would be
held liable if the instructions to stop payment of the cheque
were
not adhered to. A letter was in any event written by the attorneys
and delivered to FNB. This was handed in as an exhibit
as well.
(xv)
On 2 December 2008 appellant handed in his written resignation to the
municipality in the absence of Mr Thithi who received
it the next day
and accepted the resignation.
(xvi) On 4 December 2008
appellant obtained a statement from FNB indicating that the cheque of
R665 293.12 has been deposited into
his bank account, but that the
credit entry was reversed on 2 December 2008. On his version he
contacted Mr Shongwe on 4 December
2008 about this, who indicated to
him that a mistake had been made and that it would be rectified.
LEGAL
PRINCIPLES
[6]
Where an appeal is lodged against a trial court’s findings of
fact, the court of appeal must take into account that the
court
a
quo
was in a more favourable position
than itself to form a judgment. When inferences from proven facts are
in issue, the court
a quo
may also be in a more favourable position than the court of appeal,
because it is better able to judge what is probable or improbable
in
the light of its observations of witnesses who have appeared before
it. Therefore, where there has been no misdirections on
fact a court
of appeal assumes that the court
a quo
’s
findings are correct and will accept these findings unless it is
convinced that it is wrong. See
R v
Dhlumayo and Another
1948 (2) SA
677
(AD) at 705 - 6.
[7]
Therefore, in order to interfere with the court
a
quo
’s judgment it has to be
established that there were misdirections of fact, either where
reasons on their face are unsatisfactory,
or where the record shows
them to be such. See also
S v Monyane
and Others
2008 (1) SACR 543
(SCA)
at para [15] where the Supreme Court of Appeal stated that it is only
in exceptional cases that that Court will be entitled
to interfere
with the trial court’s evaluation of oral evidence. There may
also be misdirections, though the reasons were
satisfactory, if it
has been shown that the court
a quo
had overlooked other facts or probabilities.
[8]
The State’s case was largely based upon circumstantial
evidence. In
R v De Villiers
1944 AD 493
at 508 - 9 the Appeal Court referred to the well-known
dictum
in
R v Blom
1939 AD 188
at 202 pertaining to the test to be applied when reliance
is placed on circumstantial evidence and pointed out that it is not
each
proved fact that must exclude all other inferences, but the
facts as a whole must do so, and continued as follows:
“
The
Court must not take each circumstance separately and give the accused
the benefit of any reasonable doubt as to the inference
to be drawn
from each one so taken. It must carefully weigh the cumulative effect
of all of them together, and it is only after
it has done so that the
accused is entitled to the benefit of any reasonable doubt which it
may have as to whether the inference
of guilt is the only inference
which can reasonably be drawn. To put the matter in another way: the
Crown must satisfy the Court,
not that each separate fact is
inconsistent with the innocence of the accused, but that the evidence
as a whole is beyond reasonable
doubt inconsistent with such
innocence.”
See
also
S v Ntsele
1998 (2) SACR 178
(SCA) at 182b - f cited with approval in
S
v Boesak
[2000] ZASCA 112
;
2000 (1) SACR 633
(SCA),
para [13] at 638f and
S v Reddy and
Others
1996 (2) SACR 1
(A) at 8c –
g and especially the following
dictum
:
“
A
number of circumstances, each individually very slight, may so tally
with and confirm each other as to leave no room for doubt
of the fact
which they tend to establish. . . . Not to speak of greater numbers,
even two articles of circumstantial evidence,
though each taken by
itself weigh but as a feather, join them together, you will find them
pressing on a delinquent with the weight
of a mill-stone. . . .”
As
mentioned in these three judgments the ambit of the concept of
reasonable doubt does not go so far that the State must prove
the
guilt of the accused “bo elke sweempie van twyfel”, or
put otherwise, “beyond a shadow of a doubt.”
[9]
It is acceptable in evaluating the evidence in its totality to
consider the inherent probabilities. Heher AJA (as he then was)
dealt
with this aspect as follows in
S v
Chabalala
2003 (1) SACR 134
(SCA)
at para [15]:
“
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.”
[10]
Although it is permissible to test the accused’s version
against the inherent probabilities, it cannot be rejected merely
because it is improbable. It can only be rejected on the basis of the
inherent probabilities if it can be said to be so improbable
that it
cannot reasonably possibly be true. See:
S
v Shackell
2001 (2) SACR 185
SCA,
para 30 at 194h.
AN
EVALUATION OF THE COURT
A
QUO’S
FINDINGS, THE
EVIDENCE AND THE SUBMISSIONS BY COUNSEL
[11]
In his plea explanation Mr Nel on behalf of appellant stated in the
court
a quo
that all allegations in the charge sheet were denied and that
appellant “was the victim of individuals employed by the Nala
Municipality, to be discredited”. This extremely vague
statement remained as vague throughout the State’s case. In
cross-examination of Ms Dreyer Mr Nel tried to establish whether she
was aware of any conspiracy to discredit the accused, but
she was not
of any assistance. He referred to aspects such as jealousy amongst
politicians such as political office bearers and
municipal officials,
but she could not be of any assistance as she was unaware of anything
untoward. Fact of the matter is that
it was never put to her that
either the municipal manager, Mr Thithi, or Mr Shongwe, the chief
financial officer, or Mr Nxumalo,
the director technical services,
and/or anybody else in the municipality, or all of them, had a grudge
against the appellant to
the extent that they would go to the extreme
of discrediting him in the manner suggested by Mr Nel in argument
before the trial
court and before us. What is amazing is that Mr Nel
confronted Ms Dreyer with vague questions in respect of possible
jealousy amongst
political office bearers and municipal employees
without considering that in the municipal sphere political office
bearers are
the mayor, speaker and councillors. No statement has been
made that any politicians were involved in a conspiracy.
[12]
It was never put to Ms Ndonga (Kalake), Mr Nxumalo or Mr Thithi, all
three being employees of the municipality and colleagues
of appellant
and Ms Dreyer at the time, that either and/or all of them and/or Mr
Shongwe were part of a conspiracy to discredit
appellant.
[13]
Mr Nel submitted that Mr Shongwe should have been called as a witness
by the State. The failure to do so warranted a
negative
inference to be drawn. He submitted that the State failed to
contradict the allegations that:
(i)
it was Mr Shongwe who intended to discredit the appellant; and
(ii)
that Mr Shongwe told the appellant that they made a mistake and that
it would be rectified.
These
submissions are without any merit as these two allegations were never
put to any of the State witnesses or referred to in
the plea
explanation. It was only during the appellant’s evidence that
he belatedly came up with this version. When I confronted
him in this
regard Mr Nel argued as an afterthought that there was a duty on the
State to ask the court to re-open the State’s
case after the
appellant’s evidence was led or alternatively to request the
court to call Mr Shongwe as a witness. This argument
does not hold
any water. If the defence believed that Mr Shongwe’s evidence
could advance its case, Mr Nel was free to call
him. Mr Shongwe’s
evidence could not advance the State’s case. Insofar as hearsay
evidence was led in respect of his
instructions to stop payment of
the cheque, there was no objection thereto by appellant’s
experienced counsel and Mr Thithi
eventually also confirmed his
instruction to Mr Shongwe in this regard which has not been contested
and is thus common cause. Even
when Mr Thithi testified, no
statements were made to him that he was part of a conspiracy against
appellant, but when appellant
testified he suggested that Mr Thithi
was involved in the conspiracy.
[14]
Mr Nel relied on
S v Ramroop
1991 (1) SACR 555
(N) at 559e – f and
Olivier
v Minister of Safety and Security and Another
[2008] ZAGPHC 50
;
2008 (2) SACR 387
(WLD) at 393c – e in support of his
submission that a negative inference should be drawn against the
prosecution for failing
to call Mr Shongwe as a witness. These two
judgments do not support his argument and it would probably be more
apposite to refer
to the often quoted judgment of
S
v Teixeira
1980 (3) SA 755
(A) and
the
dicta
of Wessels JA at 763G – 765C. The appeal in that matter
succeeded on the basis that the State elected to rely on the evidence
of a single witness where the accused relied on self-defence, whilst
an available State witness who might have corroborated the
evidence
of the single witness was not called to testify. The Appeal Court
found that the State’s failure to call the further
witness
justified the inference that in counsel for the State’s opinion
his evidence might possibly give rise to contradictions
which could
reflect adversely on the credibility and reliability of the single
witness.
[15]
In casu
there is in my view nothing that Mr Shongwe’s evidence could
contribute to a proper adjudication of the dispute. Appellant’s
legal representatives were in possession of his witness statement and
if they believed that anything contained therein could be
used to the
advantage of the appellant, they would be free to call him to testify
on behalf of appellant. Both Ms Dreyer and Mr
Thithi testified about
the steps taken to arrange the stop payment of the cheque and their
versions were not seriously contested.
It is so that it appears from
the evidence of Ms Barendse and to an extent that of Ms Dreyer that
Mr Shongwe was showing a certain
amount of apathy when informed about
the cheque, but he surely was responsible, together with Mr Thithi,
for giving instructions
that payment of the cheque be stopped. This
was never contested. Mr Nel referred to him as a very important “cog
in the wheel”
and that his evidence was of material importance.
I disagree based on the uncontested evidence that he gave
instructions that payment
of the cheque be stopped which was indeed
done. In any event, it was never stated or even suggested that he
issued instructions
that the cheque be issued and/or that he signed
the cheque and/or that he completed the deposit slip and/or deposited
the cheque
into the CC’s bank account and/or that he was in
cahoots with others to act accordingly.
[16]
It was never put to Messrs Nxumalo and Thithi or Ms Dreyer that the
CC registered as service provider with the municipality
and/or that
bank account details and other information of the CC were made
available to the municipality or any of these witnesses
and/or Mr
Shongwe to be utilised by anyone or more of them to discredit
appellant by causing the cheque to be issued and deposited
into the
CC’s bank account. Appellant came up with this version for the
first time in his evidence in chief in order to support
an allegation
that it would be possible to frame him.
[17]
Appellant’s version varied as time went by. His speculation
became assertions when he testified. Then for the first time,
he
nominated certain individuals as alleged culprits. This he refrained
from doing when his counsel was required and duty bound
him to put
his version to the State witnesses.
[18]
Appellant was fully aware of the JD Edwards pay system and the manner
in which cheques were generated by the municipality until
August
2008, which is about three months prior to the depositing of the
relevant cheque
in casu
.
He is computer literate and used to assist other employees with their
computers in the absence of the IT manager. There is in
my view no
doubt that he was in a position to generate cheques by using the
defunct system and there is no evidence that this system
was
invalidated and/or removed from the computers prior to allowing
appellant an opportunity to generate the cheque
in
casu
and also two further cheques dated
3 and 8 December 2008 respectively. The cheque numbers followed each
other in numerical order.
The system could be manipulated as it
lacked data integrity as testified by Mr Mtwequ. Appellant had full
access to the JD Edwards
system. He had the opportunity to either on
his own, or with the support and co-operation of a co-employee,
generate the cheque
in casu
as well as the other two cheques and insert the name of the payee,
the amounts and the dates thereon to his liking.
[19]
It is not correct that the court
a quo
did not properly evaluate the testimony of appellant and found that
because of vague aspects thereof, or even contradictions, his
whole
version should be rejected as false. The court
a
quo
considered his version against the
backdrop of the totality of the evidence with regard to the
probabilities and improbabilities
as well as the merits and demerits
of both versions. What is extremely improbable of appellant’s
version is the fact
that he, an employee in a small finance
department of a small municipality, alleged in his evidence to be
totally oblivious of
the circumstances pertaining to the issue
and deposit of a cheque in excess of a half a million Rand into his
CC’s
account, the queries by FNB and the communication about
the instructions to stop payment, the attempts to have payment of the
cheque
stopped and that someone even dared to request the bank
manager in writing to pay out the cheque notwithstanding instructions
to
stop payment. Even Mr Nel, during his oral argument,
initially indicated that appellant was aware of these events prior to
the 4
th
of December 2008, but when he was alerted to the fact that his
client’s evidence does not support such submission, he
submitted
that appellant on all probabilities should have been aware
of the controversy and that he in essence lied when he informed the
court that he heard for the first time about this after his
resignation on the 4th of December 2008.
[20]
Another strange aspect is the fact that appellant obtained a
statement from his bank on 4 December 2008 indicating the deposit
of
the cheque and the reversal thereof on 2 December 2008, i.e. two days
earlier. It is unthinkable that he deemed it necessary
to go
back to the municipality two days after he has resigned and approach
Mr Shongwe, who was the cause or reason for him to resign
and to
confront him about this aspect. It is also improbable that Mr
Shongwe would have told him that they had made a mistake
and that it
would be rectified. It should have been evident to everybody
concerned that a reversal had already taken place
and there was
nothing to rectify.
[21]
The appellant’s problems with Mr Shongwe started on his
evidence several months earlier and in May 2008 it turned sour.
The feud culminated to such an extent that he received a written
warning for not carrying out instructions. It is improbable
that he would have resigned on 2 December with immediate effect due
to his alleged differences with Mr Shongwe and thereby forfeiting
a
salary for December when most people are in need of extra cash during
the festive season. The probabilities are overwhelming
that he
became aware that his scheme had flopped when the reversal was
effected on 2 December 2008, or even a day or two earlier,
and that
he would have to face the music in a disciplinary hearing. The
easy way out was to resign immediately in the hope
that his
resignation would be accepted which materialised. In the
process the two further cheques which were generated on
all
probabilities simultaneously with the cheque
in
casu
and thus at the stage when he was
still employed, became useless as he was properly caught out.
[22]
The probabilities are also overwhelming as the court
a
quo
correctly found that the municipal
manager and the chief financial officer would be well aware of their
statutory responsibilities.
If they were to be involved in a
conspiracy to arrange for the cheque to be issued in favour of and
deposited into the CC’s
account without it being a service
provider and entitled to monies from the municipality, they as
accounting officer and the person
in charge of the municipality’s
finances respectively, would be the first to take the blame and be
held accountable.
On all probabilities they would not take such
risk. It is accepted that the municipality’s systems
lacked security
and data integrity, especially relating to the JD
Edwards payment system and this presented an opportunity to commit
fraud.
[23]
Although the signatures on the letter to the bank requesting that the
cheque be paid out and the deposit slip resemble that
of Mr Thithi,
he disavowed that these documents contain his signature. However this
resemblance possibly led to Mr Thithi being
regarded as a suspect at
some stage, although no criminal action was taken against him
ex
facie
the record. I must say that
both his and appellant’s signatures are good examples of
scribbles, although the one signature
tends to lean over to the left
and the other to the right, but to a certain extent they look not too
dissimilar. Mr Nxumalo
gave three different versions as to
whether the one signature on the cheque was his or not. It is
so that the signature on
the cheque looks similar to his, but
obviously it would be incorrect as a non-expert to say that that
signature was in fact his,
where he himself is uncertain.
[24]
Mr Nel has admitted that when a person deposits a cheque into his or
his company’s bank account or causes such a cheque
to be
deposited by someone on his instructions, he pretends to the bank
that the cheque would be paid and that it is otherwise
in order.
It is common cause that neither appellant, nor his CC was entitled to
receive payment from the municipality as
no services had been
rendered to the municipality and in any event, it is also common
cause that there was no supporting documents
to substantiate that
payment of the amount was due to the CC. In my view Mr
Swanepoel on behalf of the State submitted correctly
that the
misrepresentation was to the effect that the impression of legitimacy
was created, that the correct procedures were followed
and that the
cheque should be met with payment by the bank. The court
a
quo
correctly found by way of inference
that the appellant’s conduct met all the requirements to
sustain a conviction. In
the circumstances I do not believe, as
Mr Nel urged us to find, that it was necessary for the State to prove
that the signatures
on the cheque were indeed forged.
[25]
The fact that there was indeed no direct evidence that appellant knew
that the cheque was issued and deposited into his CC’s
bank
account does not present an insurmountable hurdle which, if the State
cannot overcome it, the appeal should succeed.
The applicable
test pertaining to circumstantial evidence must be considered.
Bearing in mind the totality of the evidence,
the proved facts are
such that the only reasonable deduction to be made from them is that
appellant either, on his own, or with
the co-operation of a
co-employee or co-employees defrauded the municipality by generating
the cheque in favour of his CC and arranging
for the deposit thereof
in the CC’s bank account. Mr Nel’s final submission
that “it is therefore reasonably
possible that someone used
such details and deposited the cheque without the knowledge or
approval of the appellant” is so
far-fetched and absolutely
improbable that it must be rejected as false.
CONCLUSION
[26]
No arguments have been advanced to persuade me that the trial court
committed any misdirections regarding the test to be applied
in
evaluating the evidence or the evaluation as such. The State
has proved its case beyond reasonable doubt, or put otherwise,
the
appellant’s version was correctly found to be not reasonably
possibly true and thus rejected. In the premises
the
court
a quo
’s
finding cannot be faulted and therefore the conviction should stand.
ORDER
[27] Wherefore the following
order is made:
1. The appeal
against conviction is dismissed.
______________
J.
P. DAFFUE, J
I
concur.
____________
S.
NAIDOO, J
On
behalf of appellant: Adv. J Nel
Instructed
by:
Jacobs
Attorneys
BLOEMFONTEIN
On
behalf of respondent: Adv. JBK Swanepoel
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/spieterse