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[2013] ZAGPPHC 263
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Maringa and Another v S (A127/2013) [2013] ZAGPPHC 263 (17 September 2013)
REPORTABLE
IN THE NORTH GAUTENG HIGH
COURT, PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
Case Number: A127/2013
DATE:17/09/2013
In the matter between:
EDWIN RISIMATE MARINGA
…................................................
First
Appellant
DORAH MADISA
…...............................................................
Second
Appellant
and
THE
STATE
......................................................................................
Respondent
JUDGMENT
POTTERILL J
1The appellants are
appealing against the finding of the court a quo that there was no
mis-joinder of the two appellants.
2. Although in the
respondent’s heads there was a submission that this ruling of
the court a quo was not appealable, it was
not argued and need not
be addressed.
3. From the charge sheet
the following common cause facts can be ascertained:
Appellant
1 is accused 1 and appellant 2 is accused 4 charged with other
accused.
In
total there are 399 counts.
The
counts can be categorised as follows:
Counts
1-30 are fraud charges. Appellant 2 is charged with all the
counts, but appellant 1 is not charged with counts 13,
28, 29 and
30.
Counts
31-46 are the alternative to counts 1-30 and constitute theft.
Appellant 1 is charged with all the counts, but appellant
2 is
only charged with counts 31-41.
Counts
47-70 relate to forgery. Appellant 1 is charged with all the
counts but appellant 2 is not charged with any of the
counts.
Counts
160-297 constitute uttering. Appellant 1 is charged with all the
counts, but appellant 2 is not charged with any of
the counts.
Counts
298-349 relate to corruption (giving) with not one of the
appellants being charged with these counts.
Counts
350-374 set out corruption (giving) and counts 375-399 (receiving)
with which none of the appellants are charged.
In summary thus the first
appellant is charged with counts 1-297 and the second appellant with
counts 1-12, 14-27 and 31-41 [in
total 34 counts of fraud].
4. It is common cause
that the relevant sections of the Criminal Procedure Act, Act 51 of
1977 (hereinafter referred to as “the
Act”) are sections
155, 156 and 157(1) which for ease of reference are set out
hereunder.
Section 155 Persons
implicated in same offence may be tried together
“
(1) Any number of
participants in the same offence may be tried together and any number
of accessories after the same fact may be
tried together or any
number of participants in the same offence and any number of
accessories after that fact may be tried together,
and each such
participant and each such accessory may be charged at such trial with
the relevant substantive offence alleged against
him.
(2) A receiver of
property obtained by means of an offence shall for purposes of this
section be deemed to be a participant in the
offence in question.”
Section 156 Persons
committing separate offences at same time and place may be tried
together
“Any number of
persons charged in respect of separate offences committed at the same
place and at the same time or about
the same time, may be charged and
tried together in respect of such offences if the prosecutor informs
the court that evidence
admissible at the trial of one of such
persons will, in his opinion, also be admissible as evidence at the
trial of any other such
person or such persons.”
Section 157(1) Joinder of
accused and separation of trials
“An accused may be
joined with any other accused in the same criminal proceedings at any
time before any evidence has been
led in respect of the charge in
question.”
5. From the general
preamble to the charge sheet the following facts are set out:
The
City Council of Johannesburg (“COJ”) was the owner of
fixed properties referred to in the schedule annexed to
the charge
sheet, which properties were managed on behalf of the COJ by the
JPC.
The
JPC and/or the COJ never passed any resolutions to sell or to
alienate the said properties, never entered into any agreements
of
sale of any nature to sell the said properties to Eildoig
Investments or any other person or entity and had no knowledge
that
the properties were being sold.
The
state accordingly alleges that all documents relating to the sale
and/or transfer of ownership of the properties referred
to in the
charge sheet purported to be signed by a representative or on
behalf of the COJ or the JPC including but not limited
to the
following documents: sale agreements, resolutions of COJ or JPC,
powers of attorney to transfer property, affidavits
and
applications in terms of section 68(1) of the Regulations under the
Deeds Registries Act, 47 of 1937
are forged and fraudulent.
The
accused did at all material times together and/or together with
other persons act in the pursuance of a common purpose to
commit
the offences set out in the charge sheet in that the properties
referred to in the charge sheet were identified and
the properties
were thereafter marketed and offered to the complainants. In
offering the properties for sale to the complainants
various
misrepresentations were made to the complainants. These
representations as set out in the relevant charges and the
assurances provided to the buyers convinced and moved the buyers to
enter into sale agreements to buy the properties from Eildoug
Investments.
The
properties had to be transferred from the COJ to Eildoug
Investments and simultaneously from Eildoug to the companies as
set
out in column 4 of schedule 3. In order to effect the transfers
the accused had to forge several documents.
The
required transfer duty receipts or exemptions certificates required
from the South African Revenue Services before the transfer
could
take place was acquired by accused 2, 3, and 6 in a corrupt and
dishonest way in that an official of SARS was paid R50
per
certificate.
The
deeds of transfer were submitted to the Deeds Office Pretoria and
the deeds of transfer were executed by accused no 7 in
a dishonest
and fraudulent manner.
Once
it was discovered by the COJ and the JPC that the properties were
transferred various High Court applications were launched
by the
COJ and JPC to have the fraudulent transfers reversed.
6. In the summary of the
substantial facts the alleged role of the first appellant (accused no
1) is set out as follows:
The
state alleges that the first appellant was the designer of the
scheme;
He
instructed a certain Mr. Africa to obtain all relevant information
about the properties;
He
was introduced by accused no 5 to accused no 2 and they had various
meetings behind closed doors;
On
the instruction of the first appellant Mr. Africa signed all the
transfer documents for the transfer from the COJ to Eildoug
Investments.
Once
the transfer documents for the fraudulent transfer between the COJ
were drafted it was sent to the first appellant and
he forged or
instructed the forgery of the signature of Miss Botes and/or Miss
Mazibuku on the documents.
Where
the forged documents needed to be commissioned he instructed either
Africa or other members of his staff to go to the
particular
attorneys to have the documents commissioned.
He
provided the money to buy the clearance certificates in terms of
section 118
of the
Local Government Municipal Systems Act, 32 of
2000
, from a man named Ben Douglas.
The
first appellant received the amount of R10,160,000-00.
7. The alleged role of
the second appellant (accused no 4) is set out in the summary of
substantial facts as follows:
Mr.
Suliman, who acted on behalf of Zamien Investments 45 and Zambrotti
Investments 31 had reservations about whether the properties
could
be rezoned. This concern of Mr. Suliman was so serious that it was
addressed in addendums to the original agreements.
According to
the addendums the final 50 % of the payment only became payable 48
hours after the rezoning certificates were
obtained.
A
letter signed by the second appellant was handed to Mr. Suliman in
which it was confirmed that the properties referred to
in counts
1-6 were transferred to Eildoug and that all internal requirements
had been complied with. This letter further confirmed
that there
was no objection against the rezoning of the properties on
condition that approximately 60 % of the properties remained
zoned
as public open space and the developer maintained and secured the
property.
Mr.
Suliman requested a meeting with the second appellant. This
meeting was arranged by accused no 2 for the 17th of March
2010.
At the meeting which took place in the offices of the COJ the
second appellant confirmed the validity of the transfers.
Mr.
Suliman was also provided with various letters confirming this.
It
is accordingly the state’s contention that the successful
completion of the crimes all depended on the actions of the
second
appellant.
8. It was argued on
behalf of the appellants that the court a quo erred because it is
irregular and impermissible and not in compliance
with the previsions
of the Criminal Procedure Act to charge the first and second
appellants together with the co-accused in the
same charge sheet in
circumstances where the first and second appellants are not charged
with all the charges that the remaining
accused are charged with.
Reliance for this argument was found in Du Toit and Others,
Commentary on Criminal Procedure Act pp22-44:
“
In S v Naidoo
2009
(2) SACR 674
(GSJ) the court considered the cases of Chewe (supra),
Makganje (supra), S v Ramgobien and Others
1986 (1) SA 68
(N) and S v
Stellios Orphanou and 6 Others Unreported WLD case 18 October 1985,
and concluded at (paragraph 11) that those four
cases were authority
for the proposition that where there is no connection either in time,
space or fact between the charges facing
a and b it is irregular and
impermissible that such persons be tried together in respect of
offences which each is not implicated.
The reason for this lies in
the potential for prejudice: an accused could spend weeks in court
while evidence affecting his or
her co-accused was dealt with, which
had nothing whatsoever to do with the objecting accused and the
charges faced by him or her,
merely because on other counts he was
charged with an offence in which his co-accused was connected”
(paragraph 12). In
the present case said Blieden J, there was no
possibility that any of the accused run the risk of being in the
situation that any
evidence led would not be relevant to the case he
had to meet (paragraph 20).”
It was also argued that
the regional magistrate erred in not distinguishing S v Naidoo from
the present case as the Naidoo matter
related only to offences in
terms of the
Prevention of Organised Crime Act, 121 of 1998
[“POCA”].
It was further submitted that the regional magistrate erred in
holding that the prejudice to the prosecution
outweighed the
prejudice that the two appellants would suffer. It was also argued
that a presiding officer has no discretion when
interpreting section
156 of the Criminal Procedure Act because section 156 expresses that
no such discretion exists.
9. On behalf of the
respondent it was argued that there was no misdirection by the
regional magistrate. It was argued as stated
in the charge sheet
that all the accused acted in the execution of a common purpose.
This common purpose was namely to commit
fraud by selling properties
belonging to the City of Johannesburg to unsuspecting victims in a
fraudulent way. It is true that
the second appellant was not
involved in all the transactions, but as far as the first appellant
was concerned it is alleged that
he was in fact the initiator of the
scheme. From the charge sheet as well as the summary of the
substantial facts it is clear
that every individual fulfilled a
certain role in completing the common purpose. The state conceded
that there is no evidence
that the appellants were part of the
corruption allegedly committed, but the corruption was still a vital
requirement to fulfil
the common purpose to defraud. It was also
argued that the evidence that will prove the case against the first
and second appellant
will also be admissible against the other
accused and at the same time prove the case against the other
accused. The evidence
will simply go further and also prove the
other charges against these accused. It was also argued that if
there were to be a separation
of trials then some of the evidence led
in the first trial may be inadmissible at the second trial. It was
also submitted that
the prejudice to the state, the complainants and
the witnesses who will have to testify twice as well as the costs
involved far
outweighs the prejudice to the two appellants before
court. The prejudice to the state is that the matter will be
presented on
a piece meal basis before different courts and the state
will never be in a position to put the complete picture before a
particular
court. This was submitted will lead to an injustice. It
was argued that the magistrate exercised his discretion judicially
and
correctly in referring to the matter of S v Naidoo (supra).
Although in the Naidoo matter the charges all related to POCA in the
present matter the state alleges that the appellants committed the
offences of fraud with a common purpose. The evidence of the
witnesses that will testify on the forgery, uttering and corruption
charges will at the same time also prove the various allegations
made
in the fraud charges against the two appellants.
10. In casu the
appellants are charged with their co-accused on not all of the counts
with the corruption charges, being the biggest
bone of contention.
It was argued that because they are not charged with those counts
there is non-compliance with section 156
in that those charges cannot
be linked in time and place to the other counts and therefore there
is a misjoinder. Section 156
cannot be interpreted so restrictively.
Section 156 goes further and makes a joint trial possible even when
the charges do not
entirely flow from the same facts, but there is
nevertheless evidence which implicates more than one of the accused,
although not
all at the same time; there need however to be a common
purpose. Section 156 accordingly permits the state to charge
different
accused on different counts. The effect thereof is that it
is not necessary that each and every accused on one indictment must
face exactly the same charges. Section 156 does however set out two
requirements:
that
the offences must be committed (“at the same place and at the
same time or at about the same time”);
the
prosecution must inform the court that the evidence admissible in
the trial of one of the charged persons will also be admissible
as
evidence at the trial of any of the other charged persons.
Substantively the charges
are linked in time, or about the same time, i.e. a period of January
2010 to 24 March 2010. The corruption
charges form part of a
chronological link without which a court will not be privy to a full
picture of the common purpose. The
corruption charges relate to the
bribes that were paid to the SARS official to obtain the fraudulent
tax exemption certificates.
The other set of corruption charges
relate to the money that was paid to the Deeds official to process
the registration of the
properties. The corruption charges were an
essential part and the very essence to committing the fraud which the
accused are standing
trial for.
11. A broad contextual
approach should be adopted. The purpose of the section is to prevent
the repetition of evidence. Section
156 goes further than section
155 and makes a joint trial possible also when the charges do not
entirely flow from the same facts
but there is nevertheless evidence
which in the view of the prosecutor implicates more than one of the
accused although not all
at the same time. The test is that there
need be a common purpose. In Hiemstra’s Criminal Procedure on
page 22-34 the writer
comments as follows:
“
An in depth study
of joinder appears in S v Ramgoben
1986 (1) SA 68
(N). It is
confirmed that it is permissible to charge all the accused jointly
with a series of acts, committed by different persons
at different
times over a period of time in fulfilment of an all-embracing plan,
as one offence, even though each act could found
a separate charge.”
The full bench in the
Naidoo matter found that it would be irregular and impermissible that
persons be tried together in respect
of offences in which each and
everyone is not implicated but with the important proviso where there
is no question, either in time,
space or fact between the charges
(paragraph 11). In paragraph 12 of the judgment the court
distinguished the matters from Chewe,
Ramgobin, Makanje and Stellios
because in these matters “the various co-accused were charged
with various offences some of
which could not be linked to all of
them in time or by act of participation”.
In the Naidoo matter the
court did not have to rely on the requisites of section 156 because
each and every one of the accused were
charged with a main charge of
contravention of section 2(1)(e) of POCA. The court thus found that
there was no risk of being in
a situation that any of the evidence
led will not be relevant to the case the accused had to meet
(paragraph 20).
“
Despite the fact
that the nature of the part played by each accused could be different
from that of another accused, the evidence
would remain the same to
prove the conspiracy between them all the individual counts on which
accused 1 has been charged in the
alternative” (paragraph 18)
The court a quo was thus
correct in following the Naidoo matter (supra).
12. When a group of
people allegedly have a common purpose to achieve an unlawful goal
and each has a different role to play in
achieving this goal it is
inevitable that due to the separate acts of the accused some evidence
would not pertain to each and every
accused before a court. The
context within which the statute is interpreted must also include the
constitutional values i.e. the
appellants must be afforded a fair
trial. The court a quo was thus correct in weighing up the prejudice
which the state would
suffer vis-à-vis the appellants.
Appellant 1 is only facing 297 of the 399 charges and appellant 4
only 34 of the 399 counts.
The bulk of the counts that they are not
facing are the corruption charges. The magistrate was correct that
they will suffer
prejudice in that there will be evidence presented
pertaining to the corruption which does not require an answer from
them. The
magistrate did not misdirect himself in finding that
despite the appellants having to sit through such evidence the
prejudice to
the state in conducting the trial in any other manner
outweighed the prejudice to the appellants. The practical result is
that
two courts will have evidence before them not in chronological
and logical order, the trials would be duplicated at great costs
with
the state being at risk that there is a possibility that the accused
may raise that they are in the second trial being prosecuted
on the
same set of facts and that certain evidence will not be admissible in
separate trials.
13. I accordingly make
the following finding:
The
appeal must be dismissed.
The
two appellants before the court a quo are correctly joined on the
charge sheet.
_____________
S. POTTERILL
JUDGE OF THE HIGH COURT
I agree
____________
C. CAMBANIS
ACTING JUDGE OF THE HIGH
COURT
CASE NO: A127/13
HEARD ON: 10 September
2013
FOR THE 1st and 2nd
APPELLANTS: ADV. M.M. HODES SC
INSTRUCTED BY: Isaac
Mabunda Attorneys
FOR THE RESPONDENT: ADV.
A.G.J. VAN RENSBURG
INSTRUCTED BY: Director
of Public Prosecutions
DATE OF JUDGMENT: 17
September 2013