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[2009] ZAGPPHC 324
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Tshavhungwa v Lamprecht and Others (A147/2008) [2009] ZAGPPHC 324 (28 August 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA
CASE
NO: A147/2008
DATE:
28 AUGUST 2009
In
the matter between:
TSHIBVUMO
PHANUEL CORNWELL
Appellant
TSHAVHUNGWA
and
ANDRIES
LAMPRECHT,
1
st
Respondent
REGIONAL
COURT MAGISTRATE, PRETORIA
NATIONAL
DIRECTOR OF PUBLIC
2
nd
Respondent
PROSECUTIONS
THE
MINISTER OF JUSTICE AND
3
rd
Respondent
CONSTITUTIONAL
DEVELOPMENT
JUDGMENT
HARTZENBERG J
This
is an appeal, coupled with an application for the review of some of
the decisions of a Regional Magistrate, during a criminal
trial. The
appellant was originally charged with 11different counts consisting
of counts of fraud, corruption and perjury and a
12
th
count of drunken driving.
The
appellant was a Deputy Director of Public Prosecutions assigned to
the then existing Directorate of Special Operations, colloquially
known as the Scorpions. He was suspended from office during March
2004. His suspension and the subsequent criminal charges arose
from
an investigation that he was mandated and authorized to conduct in
respect of loans obtained from the Mpumalanga Economic
Empowerment
Company (‘the MEEC”) during May 2003. Awaiting trial, he
was imprisoned for more than a year. He was initially
released on
bail but it was withdrawn not long thereafter, because he interfered
with State witnesses. He remained in custody until
30 November 2005
when bail was set in an amount of R50 000. That was during the course
of the trial.
The
trial commenced on 26 July 2005 when he pleaded not guilty to all 12
charges. The State led the evidence of some 20 witnesses.
At the
close of the State's case the appellant applied for a discharge in
terms of section 174 of Act 51 of 1977. On the 11 charges.
The
application was granted in respect of counts 2, 3, 6. 8 and 9. He was
placed on his defence on counts 1, 4. 5, 7. 10, 11 and
12. He called
one witness to testify and closed his case towards the end of July
2006. On 3 August 2006 the matter was postponed
until 24 and 25
October for argument and finalization of the matter. It was arranged
that written heads of argument were to be
submitted to the magistrate
prior to 24 October 2006.
No
written heads of argument were submitted by the appellant before 24
October 2006. The reason was that he was unable to raise
the
necessary funds to have the heads drawn and be represented by the
advocate who had represented him throughout the trial, adv.
Rautenbach. On 12 October 2006 he wrote a letter to the State
Attorney asking for representation. The letter was directed to the
State Attorney, Johannesburg. The State Attorney, Pretoria, on 7
December 2006 wrote a letter to the State Attorney. Johannesburg
returning the request for legal representation dated 12 October 2006,
which landed in his office on 28 November 2006. He expressed
annoyance with the Johannesburg office for having informed the
appellant that the matter was dealt with in his Pretoria office,
whilst that was not the case.
In
the meanwhile, and on 18 October 2006, the magistrate phoned the
prosecutor to find out whether she had received heads of argument
from the other side. She then informed him that she had heard from
advocate Rautenbach that he would not prepare or file heads
or appear
unless the contractually agreed fee was paid with the attorneys. In
his judgment the magistrate describes his reaction
as follows:
"I
then informed Ms Breytenbach that we will continue as arranged and,
regardless of whether Mr. Rautenbach files Heads of
Argument
beforehand or on the 24
th
and regardless of whether he is going to appear on the 24
lh
,
I will proceed to hear oral argument in terms of section 175 of the
CPA on the 24
lh
and. if at all possible, I will still hand down judgment on the 25
th
.
"
On
24 October the appellant, in person, applied for a postponement
because he encountered financial problems. The magistrate was
of the
view that the appellant on previous instances had indicated that if
he was unable to arrange for representation he would
conduct his own
defence
[1]
.
He further took into account that the appellant is a trained lawyer
and decided that the appellant was competent to conduct his
own
defence. Other issues that he regarded as germane to the situation is
firstly that he is seated in Lydenburg. and that sitting
in Pretoria
and being unavailable in his court requires a lot of logistical
maneuvering and inconvenience for him and extra expense
and
inconvenience for the State. Secondly it was his view that as all the
evidence had been led and the appellant had been in possession
of the
State's heads that the risk of prejudice to the appellant as a result
of not being represented was minimal. Thirdly he was
of the view that
the appellant had ample time to get the necessary finance and took
into account that at an earlier stage the appellant
had rejected the
offer of legal representation at State expense. Fourthly he regarded
it as discourteous of both Mr. Rautenbach
and the appellant not to
have notified him in advance that there would be an application for a
postponement. The magistrate says
that he then ruled that the
provisions of section 73(2C)
[2]
of the CPA became applicable and further ruled to hear the State's
argument on 24 October and then to adjourn the case to 25 October
to
enable the appellant to prepare himself or to get a legal adviser to
represent him.
On
25 October the appellant arrived very late at court, claiming to have
worked throughout the night to prepare 150 pages of argument.
The
appellant asked for a postponement to go to a doctor for an injection
for the migraine which he alleged he was suffering from.
The
magistrate's attitude was that medication for migraine can be bought
over the counter; that the appellant could have done that
and refused
the application for a postponement. He effectively compelled the
appellant to argue the matter.
The
matter was then postponed to 4 and 5 January 2007. Leave was granted
to the parties to file further heads of argument on or
before 15
December 2006. The appellant sent an e-mail, indicating the he
intended applying for his recusal, to the magistrate,
on 18 December
2006. On 4 January 2007 the appellant did not appear on time.
Although he did not, initially, disclose it in his
review proceedings
he was trying to get an interdict against the magistrate to prevent
him from giving his judgment. His attempt
was unsuccessful as the
judge hearing the matter was not prepared to do so without notice to
the magistrate. There was a warrant
for the appellant’s arrest
but he made an appearance at a late stage and the warrant was set
aside and the matter postponed
to 5 January. On 5 January the
appellant applied for a postponement which was refused. The
magistrate then started to deal with
the application for his recusal,
the appellant having indicated, that it would be pointless to argue
as the magistrate had already
indicated that he will not recuse
himself, and that he was suffering from migraine and unable to
address the court. Whilst the
magistrate was giving judgment the
appellant collapsed and vomited in court. The magistrate ordered that
he be removed to hospital
by ambulance and that a medical certificate
about his condition be obtained.
The
hearing resumed on 11 January 2007. The appellant again applied for a
postponement to consult with a doctor. The magistrate
indicated that
he was not going to be busy in court for a long time and handed down
two written judgments, one refusing to recuse
himself and one finding
the appellant guilty on counts 1, 5, 10. 11 and 12. The matter was
postponed to
9 March 2007 for sentence and on
the latter date, at the request of the appellant, again postponed to
7 May 2007 on which date
he was sentenced to 5 years imprisonment on
each of counts 1 and 5 with an order that 4 years of the sentence on
count 5 are to
run concurrently with the sentence on count 1. He was
sentenced to 1 year imprisonment on each of counts 10 and 11, which
were
charges of perjury alleged to have been committed during his
bail applications. The sentences on the two charges were both
suspended.
He was sentenced to pay a fine of R40 000 on the drunken
driving charge, count no. 12.
The
review application and the appeal are for all practical purposes the
same. There is nothing in the review application which
cannot be
ascertained from the record. The appellant states that the magistrate
must have had other information when he made findings
in respect of
the witness Mashikinya and that he must have read the statement, that
formed part of the bail record, of one Ernest
Khoza, who did not
testify, to have made certain other findings. No evidence outside the
record was submitted. The decisions that
the appellant alleges are to
be reviewed and set aside are 1. the magistrate's refusal to
discharge the appellant on counts 1,
4, 5, 7, 10 and 11 in terms of
section 174 of the CPA, at the close of the State case; 2 the refusal
to postpone the matter for
arrangement of legal representation for
the appellant: 3 the refusal to postpone the matter on 25 October
2006 and 5 January 2007
to enable the appellant to receive medical
treatment; 4 the refusal of the magistrate to recuse himself and 5
the decision to convict
the appellant on counts 1,5, 10, 11 and 12.
The
charges against the appellant were serious. Over and above the fact
that he lost his job, he faced the possibility of imprisonment
for a
long time. The record, excluding hundreds of pages of exhibits, at
the close of the State's case, was about 1000 pages. That
the
magistrate must have regarded counts 1 and 5 as particularly
involved and serious is evident from the way that he dealt
with them
in his written judgment. His summary of the evidence in respect of
count 1 and the analysis thereof comprise 11 pages,
of the 70 page
judgment done in a 1.5 spacing with a letter size of 12. In addition
there are 50 footnotes to substantiate the
synopsis and reasoning.
The application of the law to the facts took up another two and a
half pages with a further 8 footnotes.
As for count 5, it was dealt
with simultaneously with count 4 on which the appellant was
acquitted. The major portion of the discussion
of the evidence,
comprising 27 pages of the judgment, bolstered by a further 77
footnotes, dealt with count 5 and the application
of the law to the
facts took up another two pages. The appellant was sentenced to five
years imprisonment on each one of these
two charges
A
rough summary of the allegations against the appellant on these two
counts is as follows: In respect of count 1 the charge sheet
alleged
that when the appellant applied for a home loan of R 1,2 million, he
fraudulently inflated his income, through misrepresentations
or non
disclosures, in order to persuade Nedbank to its prejudice or
potential prejudice to grant the home loan. The evidence was
that the
application form was filled out by a Ms. Martin and that the
appellant’s salary and the salary of his wife were
supplied. In
addition thereto it was recorded that the appellant receives a
monthly consultancy fee of R11 000.00 from Ramcorp
CC
[3]
and an income of R3500.00 as rental. The latter two amounts were the
amounts with which the income was allegedly inflated. Ms.
Martin
could not remember whether the form was filled out in the presence of
the appellant or by way of telephone conversation.
She conceded that
the appellant could have given the additional income up as
prospective income, only expected in the future. Her
evidence was
that alleged income had to be verified before it could be considered
for the application and that the salaries of
the appellant and his
wife were indeed verified by salary advices and that the extra income
was not verified. She confirmed further
that the joint salary income
of the appellant and his wife was sufficient to obtain a loan of R
1,2 million. Both she and the other
witness from Nedbank, Mr.
Soons-Bontoft testified that if they were aware that the appellant
had obtained any portion of his income
through criminal conduct, that
the application would not even have been considered.
It
is clear that the State failed to prove that the appellant
represented to Nedbank that he earned an extra income. It is also
clear that Nedbank only relied on allegations of alleged income that
had been substantiated. I could not understand the magistrate's
reasoning to have found him guilty of fraud on the basis that there
was potential “reputational” prejudice for Nedbank,
who
did not lay a charge. Ms Breytenbach explained the finding of the
magistrate as follows: The appellant, when he mentioned the
R11
000,00, referred to Ramcorp. The monies which Ramcorp received were
fraudulently obtained. By not disclosing to Nedbank that
the monies
were fraudulently obtained there was a risk that Nedbank’s
reputation could suffer in the banking industry if
it transpired
subsequently that it granted a loan to a fraudster. Without saying
anything further about that reasoning, it is incomprehensible
from
what basis it emanates in the light of the following finding on count
4
[4]
on which the appellant was acquitted:
“
[70]
As indicated above, the evidence in this matter did not prove that
the R603 386.00 emanated from the MEEC, merely using Ramcorp
CC as a
vehicle, and that the payments which made up that amount was(sic)
received in connection with a corrupt relationship that
existed
between Khoza and the accused. The payments were all made due to
causas (sic) other than corrupt payments, and the existence
of those
causas (sic) could not be discounted by the state.
”
The
State's case against the appellant on count 5 was that he falsely
pretended to his employer that he was investigating irregularities
in
the granting of loans by the MEEC as a result of which he was
afforded financial and logistical support to conduct the
investigation,
whilst he knew' that he was not investigating the MEEC
and/or its officials but that in truth he was procuring a risk
management
contract for Ramcorp CC and diverting the investigation
from the MEEC and its official. The magistrate discussed count 5
together
with count 4 on which the appellant was acquitted.
The
magistrate's reasoning was that the appellant had undertaken to do a
thorough investigation; that he had reason to suspect that
employees
of the MEEC may have been involved in corrupt deals with the
applicants for loans and that a proper investigation would
have
required a probing of the affairs of the MEEC officials and in
particular that of Khoza. The magistrate found that he deliberately
diverted the investigation from them and that he so falsely
represented to his employer that there was a proper investigation,
whilst he knew that that was not the case.
In
this regard it is important to bear in mind that at the time of the
appellant’s suspension the investigation was ongoing
and that
objectively viewed it cannot be said that there would not be an
investigation into the affairs of those persons. The magistrate's
finding was based full square on the evidence of Ms. Engelbrecht to
the effect that she had advised Me. Mashikinya, who conducted
the
investigation, to get the bank statements of the officials and that
the latter had told her that the appellant had indicated
to her that
it was unnecessary as those officials were inept but not dishonest.
Mr.
Rautenbach levelled criticism against Ms. Engelbrechfs evidence that
she had obtained information from one Genricks that officials
of the
MEEC had received kick-backs from borrowers. The basis was that she
had taken a statement from Genricks and did not make
mention of the
alleged kick-backs in the statement. He criticized her explanation
that she deliberately did not mention that aspect
as she regarded it,
at that early stage as unwise to bring up. Genricks who could
corroborate her evidence was not called. The
magistrate accepted
Engelbrecht’s explanation. He rejected the evidence of Ms.
Mashikinya and of the appellant’s direct
senior Nel’s Ms.
Mashikinya gave evidence that she indeed obtained bank statements of
some of the employees of the MEEC.
She did not think that there was
any undue interference by the appellant. Nel's evidence was to the
effect that in this case the
object of the investigation was to look
into the affairs of the borrowers and in particular into the affairs
of one Murray. He
was the target. Nel’s evidence was that as a
derivative of that investigation it would transpire that there were
further
aspects that had to be investigated that that had to be done
later.
Crucial
for the magistrate's finding was his acceptance that the appellant
had put a stop to the possibility of an investigation
into the
affairs of the employees of the MEEC by advising that it was
unnecessary to obtain their bank statements. The investigation
was
still ongoing when the appellant was arrested. In addition thereto
the magistrate considered information obtained from the
liquidators
of one of the borrowers, Savannah, as an important indicator that the
appellant diverted the investigation away from
the employees of the
MEEC. The information was that a loan for a large amount was granted
to the borrower but that it received
R200 000 less than the amount
that was granted. Ms. Mashikinya explained that she investigated the
situation and was informed that
due to a shortage of money R200 000
less than the amount of the loan was paid to the borrower. What is
important on this aspect
is that according to Nel the discovery of
the “missing” R200 000 was only made after the
appellant’s arrest.
Engelbrecht’s evidence was that it
was before his arrest. How long before or after his arrest the
discovery was made was
not clear. The magistrate did not make a
finding as to how long before the appellant's arrest the information
became available.
The
first charge of perjury related to a statement during his bail
application by the appellant that he had no other income than
his
salary. The state relied on the application for a home loan in which
he mentioned an extra income of R11 000. He certified
the information
in the form as correct. It must be remembered that the latter
statement was not on oath, was recorded by Ms. Martin
and that she
conceded that it may have been mentioned as future income. The second
count of perjury related to a statement in a
review application
before Mynhardt J, in one of the bail matters. In the founding
affidavit the appellant stated that he had prosecuted
in the
Bronkhorstspruit heist matter and that in prison he was told that
some of the members of the gang would like to speak to
him. He said
that he feared for his life. The State produced evidence that he did
not prosecute in the Bronkhorstspruit matter.
In the replying
affidavit the appellant admitted that he did not prosecute in that
matter but explained that he prosecuted in a
similar earlier matter
and that people who were later prosecuted in the Bronkhorstspruit
matter attended the court in which he
prosecuted regularly.
Mr.
Rautenbach argues that before the close of the State’s case the
magistrate was obliged to make a ruling as to what components
of the
bail proceedings were to stand as evidence in the trial. He relies on
S v
Molimi,
[2008] ZACC 2
;
2008
(5) BCLR 451
(CC) par. 36 in which the admissibility of hearsay
evidence was considered. The State did not ask the magistrate to make
any ruling
and the question was not addressed in the judgment. The
argument is that the conviction on the two counts should be set aside
on
that ground alone. An argument that the State failed to prove that
the appellant had an income other than his salary cannot be rejected
out of hand just as in the case of the second count of perjury it
cannot be rejected out of hand that the appellant possibly made
a
bona fide
mistake
and did not have the
mens rea
to
commit perjury. It is ironic that the appellant, who was acquitted on
count 4 of corruption and who was charged on count 1 with
inflating
his income and on count 10 of perjury' when he stated that he had no
other income, was found guilty on both count 1 and
count 10. The
convictions on counts 1 and 10 could only have been justified if the
State had proved that the accused had the corrupt
relationship with
Khoza, of which he was accused in count 4.
There
was evidence that the appellant had driven while under the influence
of liquor. The conviction on count 12 cannot be attacked
other than
upon the basis that as the appellant did not have a fair trial, that
it has to be set aside. The sentence on count is
a rather severe one,
bearing in mind that Nedbank did not lay a charge. The fine of R40
000 on count 12 can certainly also not
be described otherwise than a
stiff sentence.
The
aforegoing indicates that at the close of the case it cannot be said
that the State had a clear cut case. There was a large
quantity of
evidence before the court. There were in the State case different
versions on critical aspects, some implicating the
appellant and
others exculpating him. It must have been clear to the magistrate
that an objective argument by a legal representative
on behalf of the
appellant would be invaluable to the court when it was to evaluate
the evidence and come to factual findings.
Likewise there were
different offences and many possible legal arguments to which the
input on behalf of the appellant could be
of great value.
One
has sympathy with the magistrate who clearly wanted to finalize the
matter, it must have been frustrating to hear that there
would
possibly not be appearance on behalf of the appellant on 24 October
2006 and that probably there would be an application
for a
postponement. It was unfortunate for the magistrate to have informed
the prosecutor, already on 18 October, that he would
not grant any
postponement. It is difficult to see how in those circumstances he
would have been able to adjudicate objectively
on an application for
a postponement.
One
of the realities with which presiding officers in criminal courts are
often faced is unexpected and inconvenient applications
for
postponements. In many cases postponements are sought where the
accused persons are really remiss. The fact of the matter is
that the
presiding officer is obliged to see to it that an accused person gets
a fair trial, see section 35(3) of the Constitution.
That right
includes the right to be represented by a legal practitioner of his
choice. One of the issues at stake for an accused
in a criminal trial
is often that he may be deprived of his liberty, like in this very'
matter. The result is that more often than
not a court will be
compelled to grant a postponement, lest it be found, later on, that
the accused was deprived of his right to
a fair trial.
In
this case it must have been evident to the magistrate that a proper
argument on behalf of the appellant could not be put on paper
in a
short period of time. It must also have been evident to him that an
evaluation of the evidence required an application of
the mind to
various bits of evidence the weight of which had to be assessed in
the context in which it had been given and weighed
up against each
other. It must have been evident also that there are delicate legal
principles that had to be applied to the facts.
In the circumstances
the magistrate should have assessed the position objectively, by
determining why the postponement was required
and whether it was
reasonable or unreasonable in the circumstances. Accepting, without
deciding it to be the position, that the
magistrate was entitled to
invoke the provisions of section 73(2C) of the CPA. it is clear that
there were a number of options
available. It would have been a safe
option to postpone the matter and to order that the appellant be
afforded the services of
a legal adviser through legal aid.
The
factual position was that there were no heads and that the appellant
would have been at a disadvantage if no heads were submitted
on his
behalf. The magistrate’s assessment that the case had
progressed to such a stage that there was a minimum potential
of
prejudice to the appellant if he was to be compelled to conduct his
own defence, is at the very least questionable. If there
was a
possibility of prejudice that possibility had to be negated. Many-
legal practitioners are unable to present their clients’
cases
objectively. It must be an exceptional litigant, and especially an
accused, that will be able to argue his own case objectively.
It was
asking the impossible of the appellant to have him sit in court and
listen to the State’s argument on 24 October 2006
and to be
able to argue the case the very next day. It was a small consolation
to invite the appellant to submit written heads
before 15 December
2006. If he wanted to make use of a legal practitioner he first had
to get the necessary finance and then that
practitioner had to study
himself into this complex case. He would, in any event, not have had
the benefit of the State’s
argument on 24 October.
In
all the circumstances it cannot be said that the appellant had a fair
trial in terms of section 35(3) of the Constitution. The
result is
that the conviction and sentences are to be set aside.
The
convictions of the appellant imposed on 11 January 2007 and the
sentences imposed on 7 May 2007 are hereby set aside.
W
J HARTZENBERG
JUDGE
OF THE HIGH COURT
I
agree
V
V THLAPI
ACTING
JUDGE OF THE HIGH COURT
I
agree
J
VAN DEVENTER
ACTING
JUDGE OF THE HIGH COURT
HEARD ON
:
19 August 2009
ON BEHALF OF THE
APPELLANT
Counsel : G RAUTENBACH
Instructed by : SECHELE
INCORPORATED
ON BEHALF OF THE
2nd RESPONDENT
Counsel : G BREYTENBACH S
MOGOSHI
Instructed by : THE STATE
ATTORNEY
ON BEHALF OF THE
1st AND 3rd RESPONDENT
Counsel :P M MTSHAULANA
(SC) A L PLATT
Instructed by : THE STATE
ATTORNEY
[1]
It does not appear that that was done when the postponement for 24
October 2006 was arranged on 3 August 2006. As a matter of
fact it
happened before the commencement of the trial and during June 2005.
[2]
The
section reads:
"If
an accused refuses or fails to appoint a legal adviser of his or her
own choice within a reasonable time and his or her
failure to do so
is due to his or her own fault, the court may. in addition to any
other order which it may make in terms of
section 342A, order that
the trial proceed without legal representation unless the court is
of the opinion that that may result
in substantial injustice, in
which event the court may subject to the Legal Aid Act, 1969 (Act
No. 22 of 1969), order that a
legal adviser be assigned to the
accused at the expense of the State: Provided that the court may
order that the costs of such
representation be recovered from the
accused: Provided further that the accused shall not be compelled to
appoint a legal adviser
if he or she prefers to conduct his or her
own defence. ”
[3]
The whole basis of the investigation against the appellant was that
he corruptly obtained a Risk Management agreement for Ramcorp
CC
through which he channeled large amounts, received from the MEEC (in
excess of R600 00.00), to himself and his family in exchange
therefore that the investigation would not be directed against the
management of the MEEC.
[4]
Count 4 was a count of corruption in which it was alleged that the
appellant and Khoza had a corrupt relationship by means of
which
monies were channeled from the MEEC to the appellant through Ramcorp
CC.