Nyamakazi v Director of Public Prosecutions, Kwazulu-Natal and Another (AR215/08) [2009] ZAKZPHC 29 (1 June 2009)

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[2009] ZAKZPHC 29
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Nyamakazi v Director of Public Prosecutions, Kwazulu-Natal and Another (AR215/08) [2009] ZAKZPHC 29 (1 June 2009)

REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL,
PIETERMARITZBURG
Case No.: AR215/08
In the matter between:
HOPEWELL NYAMAKAZI
APPLICANT
and
THE DIRECTOR OF
PUBLIC
PROSECUTIONS
KWAZULU-NATAL
OOSTHUIZEN N.O.
(ACTING REGIONAL
COURT MAGISTRATE
FOR THE REGIONAL
DIVISION OF
KWAZULU-NATAL
FIRST
RESPON
DENT
SECOND
RESPONDENT
JUDGMENT
Delivered on:
SISHI J
[1] The Applicant in this
matter appeared in the Regional Court, Durban, charged with 34
counts altogether. Counts 1 to 17 related
to offences of contravening
section 86(4) read with
sections 1
,
85
and
89
(2) of the
Electronic
Communications and Transactions Act 25 of 2002
and counts 18 to 34
related to fraud. The Applicant, who was legally represented in the
Regional Court, pleaded guilty to all
the charges. In respect of
counts 1 to 17, he was sentenced to 5 years’ imprisonment and in
respect of counts 18 to 34, he was
sentenced to 7 years’
imprisonment. Counts 1 to 17 were taken together as 1(one) for the
purposes of sentence. The same applies
to counts 18 to 34 and the
two sets of sentences were allowed to run concurrently, so that the
effective term is one of seven (7)
years imprisonment.
[2] The Applicant has
brought this application for the review and the setting aside the
said convictions and sentences. The application
is opposed by the
Respondents.
[3] After tendering a
plea of guilty to all counts, the Applicant’s legal representative
handed in a statement in terms of
section 112(2)
of Act 51 of 1977 as
amended (the Act). The content of the statement is quoted verbatim
in order to adequately deal with the Applicant’s
challenges. The
statement reads as follows:
“I the undersigned
HOPEWELL
NYAMAKAZI
Do hereby plead as
follows:
1.
I have heard the
charges levelled against me. I understand same and it is my
intention to plead guilty to same. I have chosen
to plead guilty of
my own free will and volition without any person having promised me
anything in exchange for a guilty plea.
2.
AD
COUNTS 1 TO 17
2.1 I admit that
between the period August 2006 and September 2006 I was at or near
Durban in the Regional Division of KwaZulu-Natal.
2.2 This Honourable
Court therefore has jurisdiction to hear the matter.
2.3 I admit that
whilst acting in common purpose with other persons I did unlawfully
and intentionally utilize a device or computer
programme in order to
unlawfully overcome security measures designed to protect data or
access to data, to wit an electronic card
reader commonly known as a
“Skimming Device”, in order to gain unauthorized access to
account information encoded on the magnetic
strips as set on column 3
of schedule “A” of the charge sheet.
2.4 My purpose for the
use of the computer device or skimming device was to duplicate cards
both debit and credit for my own use.
2.5 I therefore plead
guilty to having contravened the relevant laws governing the
Electronic Communications and Transactions Act.
AD
COUNTS 18 TO 20
2.6 I admit that
during the period August to September 2006 and at Durban having
duplicated the cards with the skimming device as
in Counts 1 to 17, I
committed the crime of fraud in concert with others by having
performed the transactions set out in Schedule
“B” to the charge
sheet.
2.7 My actions
therefore caused actual prejudice in the amount of R12 100-00 of
the Ninian and Lester Factory shop and or Wanda
de Jager and or Ms
G.E. Adams and or N.I. Constantinou and or Standard Bank.
2.8 At the time of
performing the transactions set out in schedule “B” I knew that
my actions were wrongful and unlawful in
that I knew that the cards
which I had presented for payment were duplicated or cloned and that
the lawful card holders had never
at any stage presented the lawful
cards for payment.
2.9 My actions were
designed for the purpose of self enrichment of myself and those with
whom I acted in concert.
2.10 Once more, I
plead guilty as charged.
AD COUNTS 21 TO
34
2.11 I admit that
during the period August to September 2006 and having duplicated the
cards as in counts 1 to 17, I committed the
crime of fraud this time
by myself by having performed the transactions set out in schedule
“C” of the charge sheet.
2.12 I admit that with
the duplicated or cloned cards I attended the institutions set out in
column 3 of schedule “C” and withdrew
the amounts set out in
column 4 of schedule “C” thereby causing actual prejudice to the
account holders, in total amount to
R10 750-00.
2.13 At the time of
having performed the transactions as set out in schedule “C”, I
knew that my actions were wrongful and unlawful
in that the cards I
had used to withdraw the amounts set out in schedule “C” were
duplicated or cloned and that the lawful
card holders had never used
their lawful cards to withdraw the said funds.
2.14 My actions were
designed for the purpose of self enrichment and I therefore plead
guilty as charged.
2.15 Finally I wish to
say that I have no lawful defence to any charge mentioned in the
charge sheet.
Dated at DURBAN on
this the 01 DECEMBER 2006
___________________
H. NYAMAKAZI ”
[4] In respect of counts
1 to 17, the Applicant alleges that the pleas which he tendered did
not state that he had knowledge of
the unlawfulness of the said
offences. He alleges that the element of intent is lacking.
[5] In respect of counts
18 to 20, the Applicant alleges that there is no reference to the
year in which the offences were committed,
nor does it set out how
the offences were committed. He also alleges that the statement does
not spell out to whom and how the
misrepresentation was made. He
alleges that the essential elements of fraud were not admitted.
I must point put from
the onset that the period and the year in which the offences were
committed is clearly set out in the first
sentence of paragraph 2.6
of the
section 112(2)
statement as follows:
“…
during the period August to September 2006…”
The
allegation that the year is not stated is unfounded.
[6] In respect of counts
21 to 34, he alleges that there was no
lis
between
him and the State and that he did not set out in the statement how he
performed the transactions as set out in schedule
“C” to the
charge sheet. He also alleges that the elements of fraud were not
alleged and admitted in the statement.
[7] Counsel for the
Applicant submitted that looking at the totality of the shortcomings
in the proceedings, the plea statement
did not meet the threshold
required by a
section 112(2)
statement, and that it was not
sufficient to satisfy the Court that the Applicant pleaded guilty.
[8] Counsel for the
Respondent submitted that on the reading of the record together with
the plea tendered by the Applicant in terms
of
section 112(2)
, that
indeed the Applicant was correctly convicted, and that the
application should accordingly be dismissed.
[9] Counsel for the
Applicant submitted that in respect of counts 1 to 17, the Applicant
in his
section 112(2)
statement did not specifically plead to the
specific transgression of
section 86(4)
of the
Electronic
Communications and Transactions Act 2002
as alleged in the charge
sheet. He pleaded guilty to having contravened the (relevant laws)
governing the
Electronic Communications and Transactions Act which
was very vague and wide. He submitted that the failure to cause the
Applicant to plead to specific charges shows that no
lis
was created between him and the State thereby making a verdict of
guilt incompetent in the circumstances. He referred to the case
of
S v
Mbokazi 1998(1) SACR 438(N) at 439a (Thirion J at page 442 g-i).
[10] He also submitted
that looking at the statement itself it is clear that it does not set
out the facts as required by
section 112(2)
but it regurgitates the
charge sheet. He submits that the statement does not tell the Court
how the offences were committed, makes
no reference to column 2 of
schedule “A” and to the circumstances under which the offences
were committed. Column 2 of schedule
“A” is very pertinent to
have been pleaded because it is an essential ingredient of the
charges alleged in counts 1 to 17.
He submits that the Applicant did
not set out the facts exhibiting that he knew that his conduct was
unlawful, but instead he
pleaded the law. Counsel then referred to
the following cases:
S
v B 1991(1) SACR 405(N) @ 406 B-C “lines 12-13”
where the following is stated:
“…
it is clear
that this section also required not only a series of admissions but
the facts upon which these admissions are based
…”
S
v Moya 2004(2) SACR 257(W) @ 268
,
where the following is stated:
“… the written
statement is intended to be accepted in lieu of questioning by the
Court in terms of
section 112(1)
, but obviously it has to achieve the
same purpose, namely, to satisfy the court that the accused admits
the facts of the case which
underlines the criminal charges …”
See
also
,
S
v Chetty 2008(2) SACR 157(WLD)
In a subsequent
supplementary affidavit filed by the Applicant after the first
hearing, he states that by pleading guilty to have
contravened the
relevant laws of the Electronic Communications Act, he had in mind
access to account information referred in paragraph
2.3 of his
section 112(2) statement, and nothing else, he knew nothing about
other laws of the Act. In his statement he made reference
to column
2 of schedule “A”, because he had no knowledge of it and thereby
placing it in dispute. He expected the Court to
question him about
it.
[11] The Applicant was
legally represented when he tendered pleas of guilty to all 34
counts. He was specifically requested by
the court
a
quo
whether he consulted with his attorney about what it was about,
whether he understood the charges. The Applicant confirmed all
this,
and stated that he was guilty in all 34 counts. Mr Kader who
represented the Applicant in the court
a quo
confirmed
that the Applicant’s pleas of guilty to all 34 counts were in
accordance with his instructions. He also confirmed that
he had
prepared a statement in terms of section 112(2) of the Act as read
into the record. The Applicant stated that he was familiar
with the
contents of the statement and he confirmed the correctness thereof.
The statement is also signed by the Applicant.
[12] Counsel for the
Respondents submitted that from a reading of the record it is clear
that what was intended from the beginning
was a plea of guilty. He
submits that what is now being contended for is that there should
have been further enquiries from the
Magistrate. However, even after
the supplementary affidavit was filed, there is still no allegation
by the Applicant that he did
not intend to plead guilty.
[13] Counsel for the
Respondents then referred to paragraph 6 of the supplementary
affidavit where he says:
“ …
I was
wrongly convicted and should this matter be remitted to the court a
quo, I will still place the above aspects in issue until
they are
proved by the state”.
Both in the Founding
Affidavit and the Supplementary Affidavit, he sets out the grounds
upon which he alleges that he was wrongly
convicted, all of which
relates to whether he referred to the applicable laws, or what he
referred to. On reading the section
112(2) statement, together with
the charge sheet and the annexures to the charge sheet, it is clear
that he is pleading to those
specific unlawful acts. The section
112(2) statement refers to the
Electronic Communications and
Transactions Act and
paragraph 2.5 thereof reads, as follows:
“
I therefore
plead guilty to having contravened the relevant laws governing the
Electronic Communications and Transactions Act”.
This paragraph of the
section 112(2)
statement makes it clear that there is no dispute as
to which Act and legislation he is referring to. The first two lines
of counts
1 to 17 are clear and unambiguous and read as follows:
“
That
the accused is guilty of contravening section 86(4) read with
sections 1
,
85
and
89
(2) of the
Electronic Communications and
Transactions Act 25 of 2002
…”
[14] Counsel for the
Applicant argued that the Applicant should have pleaded facts to
demonstrate that his issue is in line with
the cases of
S
v B, S v Moya
a
nd
S
v Chetty, supra
,
referred to by Counsel for the Applicant.
[15] As correctly
submitted by the Counsel for the Respondents, in his plea explanation
the Applicant has indeed in paragraph 2.3
pleaded facts to
demonstrate that he was in fact guilty of contravening the relevant
provisions. Paragraph 2.3 of the statement
reads as follows:
“
I admit that whilst
acting in common purpose with other persons, I did unlawfully and
intentionally utilise a devise or computer
programme in order to
unlawfully overcome security measures designed to protect data or
access to data, to wit an electronic card
reader, commonly known as a
“Skimming
device”
in order to gain unauthorised access to account information encoded
on the magnetic strips as set out in column 3 of schedule “A”
of
the charge sheet”.
[16] In paragraph 2.4 of
the
section 112(2)
statement he goes on to say
“my
purpose for the use of the computer device or skimming device was to
duplicate cards, both debit and credit for my own use”.
The Applicant did not only plead guilty to relevant charges, but he
actually referred to the contraventions relevant to that specific
Act
and that is what is referred to in the charge sheet. In respect of
counts 1 to 17, as indicated in paragraph 13 above, the
charge sheet
specifically refers to the contravention of section 86(4), read with
sections 1
,
85
and
89
(2) of the
Electronic Communications and
Transactions Act 25 of 2002
. It is also clear from the reading of
the charge sheet and paragraph 2.5 of the
section 112(2)
statement
that the Applicant was referring to the provisions of Act 25 of 2002.
[17] On the proper
analysis of the plea explanation and the charge sheet in respect of
counts 1 to 17 and the basic elements of
the offences there are
sufficient basis to justify the conclusion which the Magistrate came
to when he indicated that he was satisfied
with the plea explanation.
The Magistrate’s conclusion is confirmed by paragraph 2.15 of the
plea explanation of the statement
in terms of section 112(2) where he
says”
“
Finally,
I wish to say that I have no lawful defence to any charge mentioned
in the charge sheet”.
[18] In my view, it is
not even necessary to look at what he said during the bail
application to determine the issue. This can be
determined on the
basis of the charge sheet, together with the plea explanation. When
the Applicant was asked in the court a quo
whether the charges needed
to be read out to him, he stated that he was familiar with the
charges and that the court could dispense
with that.
[19] In the result and in
respect of counts 1 to 17, I find that the Applicant’s submission
that he did not set out facts demonstrating
that he knew that his
conduct was unlawful, but instead that he merely pleaded the law, is
entirely unfounded and is rejected.
In my view all the elements of
the offences are sufficiently admitted in his plea explanation.
[20] In respect of count
18 to 20, which are counts of fraud, the Applicant alleges that the
intention to defraud was not admitted
and that he does not say to
whom and how the misrepresentations were made. These are set out in
schedule “B” of the charge
sheet. Schedule “B”, column 1,
sets out the account numbers, column 2, sets out the card numbers,
and column 3 the amounts
involved. In respect of these counts, he
admitted in paragraph 2.6 of the section 112(2) statement that,
during the period August
to September 2006 and having duplicated the
cards with the skimming device as per counts 1 to 17, he committed
the crimes of fraud
in concert with others, by having performed the
transactions as set out in schedule “B” to the charge sheet.
[21] In paragraph 2.7 of
section 112 (2) statement, the Applicant admits that his actions
caused actual prejudice in the amount
of R12 100-00 to the
Ninian and Lester Factory shop and/or Wanda de Jager and/or Ms G.E.
Adams and/or N.I. Constantiou and/or
Standard Bank. In paragraph 2.8
of the statement in terms of section 112(2), he states that at the
time of performing the transactions
set out in schedule “B” that
he knew his actions were wrongful and unlawful in that he knew that
the cards which he had presented
for payment were duplicated or
cloned and that the lawful card holders had never at any stage
presented the lawful cards for payment.
In paragraph 2.9 of the same
statement, he states that his actions were designed for the purpose
of self enrichment of himself
and those with whom he acted in
concert.
[22] Counsel for the
Respondents submitted, correctly in my view, that what the Applicant
admitted was that he committed the acts
referred to in the charge
sheet and that those were for self enrichment, that he acted
unlawfully and intentionally and that there
was actual prejudice. In
his Supplementary Affidavit it is alleged that he made these
admissions to shorten the proceedings. But
if his admissions were
made to shorten the proceedings, Counsel for the Respondents
submitted that he would then not have pleaded
guilty. Once again, it
is to be noted that in both in his founding affidavit and
supplementary affidavit, the Applicant does not
state that he
actually had not intended pleading guilty. Despite this he now
purports to raise the new defence that this was done
merely in order
to shorten the proceedings.
[23] Counsel for the
Respondents submitted that the same arguments apply in respect of
counts of 21 to 34. These are also counts
of fraud. Both counts 18 to
20 and counts 21 to 34 are categories of fraud that flow from the
contraventions referred in counts
1 to 17.
[24] In respect of counts
21 to 34 the Applicant also alleges that the elements of falsity and
misrepresentation are not admitted
in his plea statement. In the plea
explanation he admitted that he used cloned cards, that he performed
the transactions as set
out in schedule “C”, that they were
presented to the institution as set out in column 3 of schedule “C”,
that the amounts
were withdrawn, that there was actual prejudice and
he goes on to say in paragraph 2.13 of the statement:
“I
knew that my actions were wrongful and unlawful in that the cards I
used to withdraw the amounts set out in schedule “C”
were
duplicated or cloned and that the lawful card holders had never used
their lawful cards to withdraw the said funds”.
Even
in the Supplementary Affidavit there is still no allegation that the
Applicant intended pleading not guilty in respect of these
counts
.
[25] In the light of the
above, I find that the elements of falsity and misrepresentation are
included in the section 112(2) statement.
The Applicant’s
submission that they are not included is therefore unfounded and is
rejected.
[26] Considering the
requirements in respect of section 112(2) statement as set out in the
cases
S
v B, S v Moya and S v Chetty supra
,
I am satisfied that the court a quo was correct in allowing the
statement made by the Applicant to pass without further questioning,

and that the convictions of the Applicant are proper and were based
on his plea and the section 112(2)statement.
[27] The court a quo did
not commit any error or irregularity in not questioning the Applicant
on the statement handed in, in convicting
him on his plea. There is
therefore no reason why this court should interfere with the
conviction and sentence of the Applicant
in this matter.
[28] But even if I were
wrong in my conclusions aforementioned and the plea statement did
indeed fall materially short of what was
necessary to underpin the
elements of the charges and thereby to satisfy the Magistrate that
the applicant was indeed guilty of
the offences to which he tendered
pleas of guilty, then these shortcomings in compliance with the
provisions of s 112(1)(b) and
s 112(2) of the Act are not necessarily
decisive of the review application. It remains necessary to determine
whether or not, in
all the circumstances of the particular matter,
they constituted a procedural irregularity, sufficiently material, so
that a failure
of justice has resulted. In the circumstances I am far
from persuaded that the alleged irregularities, such as may have
resulted
from non-compliance with the provisions of s 112(2) of the
Act, also resulted in a failure of justice. (See :
S
v Carter
2007 (2) SACR 415
(SCA)
).
[29] In the result, I
propose the following order:
1. The application is
dismissed.
2. The convictions and
sentences of the Applicant by the court a quo are confirmed.
_______________________
SISHI J
I AGREE AND IT IS SO
ORDERED
_______________________
VAN ZYL J
DATE OF HEARING : 16 &
25 September 2008
DATE OF JUDGEMENT : June
2009
Applicant’s
attorneys : Langelihle Dube & Associates C/O
Nzimande &
Associates
Old Trust Building
29 Timber Street
PIETERMARITZBURG
Applicant’s
Counsel : Mr Mvune
Respondent’s
Representative : The Director of Public Prosecution KwaZulu-Natal
Respondent’s
Counsel : Advocate Bezuidenhout
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