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2024
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[2024] ZAECMHC 69
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Yako v S (CA&R85/2022) [2024] ZAECMHC 69 (30 August 2024)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO. CA & R85/2022
In
the matter between:
CHWAYITA
ONGAMA YONGAMA YAKO
Appellant
and
THE
STATE
Respondent
APPEAL JUDGMENT
THE
COURT,
[1]
The appellant appealed with the leave of
the court
a quo
principally
against his
conviction
on charges of theft and fraud. We do not intend to repeat the
several grounds relied upon in the very extensive and thorough
notice
of appeal filed on his behalf.
[2]
The State perfunctorily opposed the appeal
despite the magistrate noting in her judgment in the application for
leave to appeal
that after “
anxious
consideration
” of the submissions
made before her, she was persuaded that reasonable prospects existed
that another court might come to
a different conclusion.
[3]
It appears that much of the hype in
resisting the appeal stems from the fact that the appellant did not
himself testify in the trial
pursuant to a failed application for
discharge in terms of the provisions of
section 174
of the
Criminal
Procedure Act, No. 51 of 1977
, leaving it open to debate whether this
had effectively sealed his fate and damned him to the two
convictions.
[4]
Our panel also put counsel through the
wringer for the appellant’s failure to have testified at the
trial, until it became
plain through a thorough interrogation of all
the evidence that the State had not on either of the charges proven
its case beyond
reasonable doubt on the premised bases relied upon
such as to place any burden on the appellant to have had to come and
gainsay
or explain away any of the testimony.
[5]
In the case of the conviction for theft the
principal act of supposed misappropriation of the funds in question
(R1 290 000.00)
was contradicted by the evidence of the
State’s own witness, Mr. Takatshane (also known as Mr. Mbana),
the chief executive
officer of MPA Management Services, trading as
“
CMD
”.
[6]
He was expected to testify that the
appellant had not paid him certain professional fees agreed upon in
that sum and that the payments
supposedly made to him (referenced in
the bank statements of Cross-Med Health Centre (Pty) Ltd as having
been paid to “
CMD
”)
had instead been diverted to an entity that the appellant had a
personal interest in, namely Malulu Investments.
[7]
However, the evidence established that the
payments were made to Malulu Investments at the behest of Mr.
Takatshane/Mbana/MPA trading
as “
CMD
”.
This was pursuant to their agreement and as a trade-off for the
witness’ own investment of a 20% stake in Malulu.
Further, since the appellant was the sole director (and sole board
member) of Cross-Med Health Centre, the company he was alleged
to
have stolen the funds from, there was nothing
per
se
untoward about him having given
effect to the transaction as he did.
[8]
None of the aspersions and/or suspicions
cast upon the appellant as having been in criminal breach of his
fiduciary duties toward
the company were even remotely met through
the evidence that the State placed before the trial court.
[9]
At worst the trial court reflected that the
written record of the parties’ agreement (in respect of the
trade-off and acquisition
by Mr. Takatshane of a 20% stake in Malulu
Investments) postdated the payments to the appellant and raised a
suspicion of unjustified
transactions which required an answer, but
it was not in issue that a ratification letter of their deal in fact
supported the witness’
claim that the payments made by the
appellant on the basis of their agreement to Malulu was not in any
way sinister.
[10]
Mr. Takatshane indeed testified
unequivocally that he was owed nothing by Cross-Med and had in fact
been overpaid by R70 000.00.
[11]
Despite the perspective that the appellant
in his capacity as sole director (and board member) had used the
company’s bank
account to make the payments in furtherance of
his interest, this was self-negated by the relevant documentation
that confirms
that the payments were transparently made, not in
breach of his fiduciary responsibilities and not unjustified after
all.
[12]
The emphasis of the State’s case
incidentally was to the effect that fictional entries had been made
by the appellant when
he made the payments reflecting on the
company’s banking profile that they were for CMD, when in
reality they were made for
an ulterior purpose and that CMD was in
fact not paid. This was the force and
raison
d’etre
for the charge, namely
that CMD had not been paid despite what the company’s bank
statements evinced, but this premise was
self-evidently discounted by
Mr. Takatshane himself.
[13]
We are satisfied that the appellant’s
conviction on this charge, based on very tenuous threads of suspicion
of culpable wrongdoing
on his part, was a huge stretch.
[14]
In
respect of the fraud conviction, we agree that the evidence of the
State fell short in the number of respects that were carefully
and
meticulously analyzed and drawn attention to in the heads of argument
filed on behalf of the appellant.
[1]
[15]
Fundamental to this charge was whether the
appellant had made the misrepresentation contended for, which
conclusion could not have
been sustained once the trial court
accepted that it had become common cause at the end that the
appellant owned the license and
practice number issued in the name of
Cross Med Mthatha Private (Pty) Ltd, which he withdrew at the end of
the lease agreement.
What banking changes he effected were to
ensure that payments came to his designated account as the authorized
holder of the license
which he was perfectly entitled to do.
Inasmuch as it was suggested that some of the monies paid over by
medical aid schemes
might not have been for his account, that is a
matter for a civil debatement of account. Importantly, it was
conceded by the State
that the appellant ran his own practice during
the period of the alleged fraud and that there was no evidence that
the money from
the medical aid schemes paid to his bank account was
money due to Cross-Med Health.
[16]
In conclusion there was no obligation on
the appellant to prove his innocence and no adverse inference fell to
be drawn by his failure
to testify adjudged against the poor case
proffered by the State. It simply failed to prove its case
against him on the criminal
standard in respect of either charge.
[17]
In the result the appeal succeeds and both
convictions are set aside.
B
HARTLE
JUDGE
OF THE HIGH COURT
Z
Z MATEBESE
ACTING
JUDGE OF THE HIGH COURT
DATE
OF APPEAL
:
21
August 2024
DATE
OF JUDGMENT :
30 August 2024
Appearances:
For
the Appellant: Mr. N Zilwa of Zilwa Attorneys, Mthatha (ref. Mr
Zilwa)
For
the Respondent: Mr. M B Rangule of The National Prosecuting
Authority, Mthatha (ref. Mr. Rangula)
[1]
See para 144 at page 56 of the appellant’s supplementary heads
of argument.