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[2024] ZAKZPHC 114
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Shabalala v S (AR332/2023) [2024] ZAKZPHC 114; 2025 (1) SACR 201 (KZP) (29 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Reportable/
Not
Reportable
Case
no: AR332/2023
In
the matter between:
SIPHO
DERRICK SHABALALA
APPELLANT
and
THE
STATE
FIRST RESPONDENT
Coram
:
NKOSI J, NGQANDA AJ
and GAJOO AJ
Heard
:
18 October 2024
Delivered
:
29 November 2024
ORDER
On
appeal from
: KwaZulu-Natal Local Division of the High Court,
Durban (Pillay J, sitting as court of first instance):
The appellant's appeal
against his conviction and sentence is dismissed.
JUDGMENT
Nkosi
J (Ngqanda and Gajoo AJ concurring)
Introduction
[1]
The appellant, Sipho Derrick Shabalala, appeared before the court
a
quo
court on charges of fraud, corruption, money laundering, and
contravention of the Public Finance Management Act 1 of 1999 (PFMA).
The appellant was found guilty as charged and sentenced as follows:
(i) fraud, 15 years' imprisonment; (ii) corruption, 15 years'
imprisonment; (iii) money laundering, 10 years' imprisonment and (iv)
contravention of the PFMA, 5 years' imprisonment. The sentences
imposed with respect to corruption, money laundering, and
contravention of the PFMA were ordered to run concurrently with the
sentence for fraud, such that the appellant's effective sentence was
15 years' imprisonment.
[2]
Aggrieved by the convictions and sentences imposed, the appellant
sought leave to
appeal, which the court
a quo
refused. A
subsequent petition to the Supreme Court of Appeal (SCA) was
successful, and with leave thus obtained, the appellant
now appeals
to this court in respect of both conviction and sentence. The
appellant remains on bail pending the outcome of this
appeal.
The
issue(s) on appeal
[3]
The appellant challenges both his convictions and sentence. Though
overlapping in
certain respects, the appellants' challenges may
broadly be summarised as follows. First, that the court
a quo
failed to consider all the material evidence, particularly a key
affidavit, and improperly introduced new material in a second
judgment that was not contemplated in its initial ex tempore
judgment.
[4]
Second, that the court
a quo
erred in its credibility
findings, particularly regarding testimony favourable to him. This
challenge goes beyond mere dissatisfaction
with the court's
assessment and suggests a material misdirection in its approach to
witness credibility.
[5]
Third, that the court
a quo
misapplied the essential elements
constituting fraud and incorrectly attributed committee decisions to
the appellant's individual
conduct.
[6]
Fourth, that the court
a quo
made findings unsupported by the
evidence led during the trial and misapplied the relevant corruption
legislation. Furthermore,
that the court failed to provide adequate
reasons for declining to discharge the appellant as required by law.
[7]
Lastly, that the court
a quo
exhibited bias against the
appellant and imposed an excessive sentence of 15 years'
imprisonment. The appellant submitted that
this bias tainted the
proceedings and that the sentence warrants reduction by this Court.
[8]
The appellant's grounds of appeal encompass allegations that the
court
a quo
failed to consider the evidence and misdirected
itself not only on the points of law, but also by drawing certain
inferences purportedly
unsupported by trial evidence. For the sake of
convenience, I shall address the appellant's grounds of appeal
sequentially as they
appear in his Notice of Appeal, with some
consolidation to avoid prolixity.
Whether
the court
a quo
failed to consider all the evidence before it
[9]
Central to the appellant's grounds of appeal is the contention that
the court
a quo
erred in failing to consider the evidence of
Mr Mike Mabuyakhulu (MEC Mabuyakhulu), who is the erstwhile MEC for
the Department
of Local Government and Traditional Affairs (DLGTA) in
KwaZulu-Natal (KZN). During the relevant period, MEC Mabuyakhulu
served
as both the MEC for the DLGTA and the Treasurer of the African
National Congress (ANC) in the KZN province.
[10]
It is common cause that MEC Mabuyakhulu was listed amongst the State
witnesses for the trial
but, for reasons unknown to the trial Judge,
was not called by the State to testify on its behalf at the trial.
Instead, his evidence
is contained in an affidavit that was deposed
to by him on 19 October 2010. This was in response to a list of
questions that were
posed to him by Colonel Petrus Johannes Du Plooy
(Col Du Plooy), who was the investigating officer in respect of this
matter. The
contents of MEC Mabuyakhulu's affidavit are dealt with in
more detail later on in this judgment.
[11]
Notably, MEC Mabuyakhulu states in the opening paragraphs of his
affidavit that-
'l have been asked to
comment on issues which took place some five years ago, and in
certain instances I do not have a clear recollection
of events or
have had recourse to documents (where these exist) to refresh my
memory'
[1]
[12]
In fact, his vivid recollection of the matter becomes more apparent
when one reads his comments
on the specific documents he was
requested to comment on. The opening statement to his comments reads
as follows:
'Given that the documents
were written several years ago l do not have a clear and precise
recollection of events or their precise
sequence, but will endeavour
to answer the questions to the best of my recollection. '
[2]
[13]
He then goes on to give responses that are somewhat vague and devoid
of first-hand knowledge.
From reading MEC Mabuyakhulu's comments on
each document, one gets the impression that his involvement in the
acquisition of the
water purification plants from Intaka was very
limited. By way of background, I think a brief summaiy of what is
stated by MEC
Mabuyakhulu in his aforesaid affidavit is appropriate.
[14]
In paragraphs 5 to 7 he essentially confirms what is stated by the
appellant in respect of count
2 (corruption) on pages 6 to 7 of his
statement in terms of s 115 of the Criminal Procedure Act 51 of 1977
(CPA). In particular,
he confirms that from 3 November 2004 to 11 May
2009 he was the MEC for the KZN DLGTA, as well as the Treasurer of
the ANC from
1998 until approximately 21 June 2008.
[15]
He further states that during his tenure as the Provincial Treasurer
of the ANC, he was responsible
for,
inter alia
, raising funds
for the ANC. He confirms that during 2005 he called upon leaders and
general members of the ANC to raise funds for
the ANC. He explains
that the funds were required for the day-to-day administration of the
organisation, and for its provincial
conference which was scheduled
to take place at Ndumiso College in June 2008. He recalls that the
appellant was one of those who
undertook to raise funds for the ANC.
[16]
He states that approximately two months from the date of the
conference he was informed by the
appellant that he had raised some
funds for the ANC and wished to pay the same to the organisation.
Thereafter, on or about 11
June 2008, he received payment from the
appellant in the sum of R1m. In conclusion, he confirms that it is
not the policy of the
ANC to disclose where private donations are
received from, nor is it the policy to disclose how such funds are
utilised. He concludes
by stating that the funds were disbursed by
him to defray the expenses of the upcoming June 2008 conference in
his capacity as
the ANC Provincial Treasurer at the time.
[17]
He again refers to the issue of the alleged donation to the ANC in
paragraphs 12.1 and 12.2 of
his affidavit, where he reiterates: that
all ANC leaders were requested to raise funds for the organisation;
that the appellant
had informed him that he had received funds and
wished to pay same to the organisation; that he did not know how and
where the
appellant had raised those funds; that he arranged to meet
with the appellant and received the funds in cash from him, and; that
the funds were used by him to defray the expenses of the conference.
[18]
The affidavit of MEC Mabuyakhulu, in my view, is devoid of any
independent or authoritative evidence.
It largely corroborates the
testimony of Mr Trevor White
[3]
and Col Du Plooy
[4]
,
both of whom were instrumental in the investigation leading to the
appellant's arrest. Significantly, the salient points of Mr
White's
and Col Du Plooy's evidence found confirmation in the appellant's own
s 115 statement. The remaining aspects ofMEC Mabuyakhulu's
affidavit
were addressed in the testimony of Mr Zweli Mkhize (MEC Mkhize).
[19]
Regarding the comments made by MEC Mabuyakhulu on the specific
documents that are referred to
in his affidavit, I do not believe
that such comments can be regarded as independent evidence that
warranted due consideration
by the trial Judge in her judgment. This
is because his comments are generally characterised by non-committal
statements such as
the statement that he was not the author of the
relevant documents and, therefore, could not be expected to comment
thereon.
[20]
In fact, the documents he was asked to comment on included the
following: firstly, the letter
dated 15 July 2005 from MEC Mkhize
addressed to him advising him about,
inter alia
, the potential
benefits which could accrue to the KZN Province from the purchase of
the Wataka water purification and processing
plants (Watakas). His
comment on that letter was to acknowledged receipt thereof, and to
state that he did not wish to interpret
the contents thereof because
he believed that they speak for themselves.
[21]
Secondly, the memorandum dated 10 October 2005 from the appellant,
the Head of LGTA and the Acting
Head of Economic Development,
addressed to MEC's Mkhize and Mabuyakhulu. The response ofMEC
Mabuyakhulu to that letter was to acknowledged
receipt thereof, and
to confirm that he signed it at the place that was provided for his
signature thereon.
[22]
Regarding the actual contents of the said document, MEC Mabuyakhulu
stated in his affidavit that
he was not in a position to comment on
the issue of the promised investment by Intaka in KZN as this did not
fall within the ambit
of his portfolio. He further stated that he
declined to interpret the contents of the said memorandum and
suggested that 'any queries
concerning the intention of the letter
should be directed to the drafters thereof.
[23]
Thirdly, the letter dated 27 November 2006 from the Ministry of Local
Government, Housing and
Traditional Affairs. MEC Mabuyakhulu
confirmed in his affidavit that he read the said letter and noted
that it referred to a meeting
that was held on 9 June 2006. He stated
that he had no recollection of the said meeting or who attended it,
but did not dispute
that it took place. He further stated that he
could not recall the exact basis of the allocation of the Watakas
but, according
to his recollection, they were allocated according to,
inter alia
, the needs of the communities.
[24]
Lastly, the letter dated 2 February 2010 from Ngubane Wills
Incorporated in relation to the issue
of the alleged donation to the
ANC. MEC Mabuyakhulu responded to that letter by repeating the
contents of paragraphs 5 to 7 of
his affidavit. He further stated
that he did not have an independent recollection of the precise
details of the funding of the
Watakas or the structure of the
commercial transactions thereof, apart from what appears in the
memoranda and submissions that
were submitted to him.
[25]
Ms Shazi, who appeared on behalf of the appellant, referred us to the
following passage in
S
v Van der Meyden
[5]
:
' ...[w]hat must be borne
in mind, however, is that the conclusion which is reached (whether it
be to convict or acquit) must account
for all the evidence. Some of
it might be found to be false; some of it might be found to be
unreliable; and some of it might be
found to be only possibly false
or unreliable; but none of it may simply be ignored.
[26]
She submitted that the evidence of MEC Mabuyakhulu was totally
ignored by the court a quo in
its conviction of the appellant.
However, the above analysis of the contents of MEC Mabuyakhulu's
affidavit clearly shows that
the evidence contained therein was
considered by the court a quo, albeit from other sources. This was
confirmed by the trial Judge
in her judgment on the appellant's
application for leave to appeal, which was refused by the court
a
quo
before it was granted by the Supreme Court of Appeal.
[27]
The appellant contends that the court a quo 'ignored' MEC
Mabuyakhulu's affidavit and rendered
judgment without consideration
of its contents. However, the appellant's notice of appeal fails to
specify the evidence within
the affidavit that the court allegedly
disregarded. That aspect was covered by Ms Shazi in her oral
submissions to this court,
the details of which will be dealt with
later on in this judgment. She argued that the evidence of MEC
Mabuyakhulu was material
for consideration by the court a quo before
it handed down the
ex tempore
judgment on 13 and 14 June 2022.
[28]
In the matter of
S
v Bhengu
[6]
it was stated by the court that-
' What is required of a
judicial officer is to set out in his judgment the material portions
of the evidence. He must ascertain
and select what is material. This
involves effort and understanding.'
[29]
Based on my perusal of the voluminous record in this matter, that
appears to be precisely what
the trial Judge did in this case. She
clearly set out in her judgment on conviction the material portions
of the judgment, as well
as the reasons for her findings. On my
perusal of the
ex
tempore
judgment of the court
a
quo
,
read with the final version thereof that was edited and signed by the
trial Judge on 8 September 2022, I am satisfied that the
court
a
quo
was
meticulous in its assessment of all the evidence that was presented
to it during the trial. Obviously, such evidence did not
include the
appellant's own evidence as he elected not to testify in his own
defence during the trial. In such instances, it was
held by the CC in
S v
Boesak
[7]
that:
'The right to remain
silent has application at different stages of a criminal prosecution.
An arrested person is entitled to remain
silent and may not be
compelled to make any confession or admission that could be used in
evidence against that person. It arises
again at the trial stage when
an accused has the right to be presumed innocent, to remain silent,
and not to testify during the
proceedings. The fact that an accused
person is under no obligation to testify does not mean that there are
no consequences attaching
to a decision to remain silent during the
trial. If there is evidence calling for an answer, and an accused
person chooses to remain
silent in the face of such evidence, a court
may well be entitled to conclude that the evidence is sufficient in
the absence of
an explanation to prove the guilt of the accused.
Whether such a conclusion is justified will depend on the weight of
the evidence.'
[30]
In conclusion, I am satisfied that the court
a quo
considered
all the material evidence that was led before it during the trial.
This includes all the evidence that is contained
in MEC Mabuyakhulu'
s affidavit, that is, bearing in mind that he was not the primary
source of such evidence. The appellant elected
not to testify in his
own defence during the trial even though the evidence adduced by the
State against him, which was largely
corroborated by the admissions
he made in his s 115 statement, clearly called for an answer from
him. As stated by the Constitutional
Court in
Boesak
, the
appellant must live with the consequences of his decision.
Whether
the court
a quo
'handed down' a second judgment in the absence
of the appellant
[31]
It is common cause that the appellant was convicted by the court
a
quo
in terms of a judgment that was delivered
ex tempore
on 13 and 14 June 2022. After reading the summary of the evidence for
the whole day on 13 June 2022, the trial Judge announced
at the
commencement of the hearing on 14 June 2022 that considering the
pedestrian pace at which the delivery of judgment was going
the
previous day, she had decided to pause the summary of the evidence
and proceed straight to her findings. She indicated that
when the
transcript comes out she would simply insert the remaining part of
the summary and, thereafter, edit, sign off, and release
her
judgment.
[32]
The explanation she provided in her
ex tempore
judgment was
that she thought everyone was keener to know what her findings were,
to which neither counsel objected. She then stated
that after
summarising the evidence the next part of the judgment would fall
under the heading 'Procurement prescripts', followed
by 'Section 217
of the Constitution', followed by the 'KwaZulu-Natal Procurement
Act', followed by 'Item 16A of the Treasury Regulations',
and ending
with 'Practice Note No. SEM02/2005.' After the appellant was
convicted, the matter was adjourned to 5 September 2022.
[33]
The appellant's contention, on the other hand, is that the court
a
quo
misdirected itself materially in a number of respects,
thereby vitiating his conviction. His version, briefly stated, is
that on
2 August 2022, the trial Judge circulated another judgment
comprising 129 pages (Second Judgment) to the parties' legal
representatives.
That judgment has approximately 30 additional pages
of new material which did not form part of the 'first judgment'.
[34]
He further contends: that the new material includes references to MEC
Mabuyakhulu's affidavit
and direct quotations from it, yet the court
a quo
did not have such an affidavit and did not know its
contents when it handed down the
ex tempore
judgment, that the
court
a quo ex post facto
embellished, altered, and added to
the first judgment to include the evidence it had not considered when
it gave its first judgment
in open court and convicted the appellant
and; that the court
a quo
amended considerable parts of the
findings in the judgment, which changed its substance.
[35]
At the outset, I wish to record that I find the appellant's reference
to a 'second judgment'
rather surprising, particularly, because
neither he nor his counsel had raised any objection when the trial
Judge announced in
open court that she had decided to 'pause' the
summary of the evidence and proceed straight to her reasons for
judgment. She explained
that she thought everyone was more keen to
know what her findings were. Incidentally, the 30 additional pages of
'new material'
comprise exactly those aspects of the judgment which
the trial Judge indicated would be inserted in the transcript of the
judgment
when it came out.
[36]
It is common cause that during the process of editing the judgment
that was handed down
ex tempore
on 13 and 14 June 2022,
certain additions were made by the trial Judge to the final judgment
that was edited and signed by her
on 8 September 2022. Except for the
remaining part of the summary of the evidence and the legal
prescripts she deliberately omitted
when she handed down the
ex
tempore
judgment, the notable additions to the part of the
judgment comprising the reasons for judgment are the two new
paragraphs appearing
on pages 104 to 105 of the final judgment.
[37]
In the first paragraph, the trial Judge explains why she said the
appellant used his position,
powers, and privileges as a member of
the Central Procurement Committee (CPC) to 'improperly and
impermissibly' benefit the ANC.
In the second paragraph, she states
that MEC Mabuyakhulu acknowledged receiving Rlm from the appellant
and using it 'to defray
expenses arising from the then upcoming June
2008 conference.' She also expressed concern that for reasons not
disclosed to the
court
a quo
, MEC Mabuyakhulu was not
available to be questioned in court regarding the amount of the
donation and why it was not reflected
in the financial records of the
ANC. She concluded by stating that 'the evidence that the ANC
received the donation was dubious.'
[38]
Regarding the circumstances which led to her decision to omit certain
parts of the judgment that
was handed down
ex
tempore
on
13 and 14 June 2022, an elaborate explanation is provided by the
trial Judge in her judgment on application for leave to appeal
[8]
,
the brief summary of which is that: she commenced handing down the
judgment on conviction in the matter on 13 June 2022. The next
morning, on 14 June 2022, she indicated that she would skip reading
out the summary of evidence and the legal prescripts and provide
the
parties with her findings and conclusions in order to expedite the
handing down of the judgment. Neither party objected, hence
she
proceeded to do so.
[39]
She thereafter received a request from the appellant's counsel, Ms
Shazi, to provide her with
the complete judgment incorporating the
summary of evidence and legal prescripts to facilitate her
preparation for sentencing proceedings.
She acceded to Ms Shazi's
request and provided her with an unsigned draft judgment on 27 July
2022 (July draft). She stated that
it was recorded in the July draft
she received from Sneller that the appellant was convicted on count
5, which she admitted was
an error as it was common cause that the
appellant was acquitted of that count in open court on 14 June 2022.
The said error was
corrected in her final judgment on conviction that
was edited and signed on 8 September 2022.
[40]
It was indicated by Ms Shazi in her submissions to this court that
the appellant was persisting
with all his grounds of appeal
regardless of the explanation provided by the trial Judge. She
referred us to the matter of
Tuta
v The State
[9]
,
where the following was held by the Constitutional Court regarding
ex
tempore
judgments:
'In busy criminal courts,
the
ex tempore
judgment is often a necessary part of judicial
practice. No discouragement of this useful practice is warranted.
Infelicities of
style, grammar, spelling and word choice may require
revision; and they should be permitted. A patent error or omission
may be
corrected. However, the substantive reasons for the judgment,
handed down in court, must stand. That is the authoritative
pronouncement
of the court, conveyed to the accused. Importantly, it
is through this judgment that the accused is convicted and it is also
through
it that the reasons for the conviction are reflected. If an
ex tempore
judgment is given, its reasons are authoritative
and they may not be altered or embellished to give further expression
to what
the court meant to convey. The time for that is when the
judgment is handed down by the court. This is somewhat less
permissive
holding as to the competence of a trial court to vary its
judgment in a criminal case than was allowed in
Wells
, a
pre-constitutional error decision. However, in my view, it better
accords with the constitutionally entrenched rights of an
accused to
a fair trial and the duties of a court to pronounce with finality
upon the case before it.'
[41]
In my view, the appellant's reliance
Tuta
is misplaced because
the circumstances of
Mr Tuta
, who was the applicant in that
case, are significantly different from those of the appellant
in
casu
. Unlike the appellant,
Mr Tuta
gave evidence in
defence at his trial and based on two grounds of appeal. The first
ground was that the curtailment of the prosecution's
cross-examination of him by the trial Judge resulted in him not
knowing the prosecution's case as to his state of mind, thus
undermining
his right to a fair trial. The Court found that the
intervention of the trial Judge did not undermine the applicant's
right to
a fair trial because he already knew the case he had to meet
at the point in the trial when the intervention occurred.
[42]
The second ground of appeal relied upon by
Mr Tuta
was that
the trial Judge failed to have regard to all the evidence led at
trial from which his subjective state of mind might have
been
inferred. The Court declined to entertain that ground on the basis
that a failure by a trial court to evaluate the evidence
properly is
an error of fact to which the jurisdiction of the Constitutional
Court does not extend. However, the Court nonetheless
proceeded to
consider an oral submission made by
Mr Tuta's
counsel that the
trial court had, in addition, failed to formulate the correct test
for putative private defence and applied the
wrong test to the
evidence, which was an error of law that carried the risk of an
unsound conviction and an unfair trial for
Mr Tuta
.
[43]
It turned out that the incorrect formulation of the test for putative
private defence appeared
in the
ex tempore
judgment that was
handed down by the trial Judge in court, but the signed judgment that
was published on SAFLII contained the correct
formulation of the test
for putative private defence. According to our understanding, it is
within that context that the Constitutional
Court in
Tuta
held
that:
'if an
ex tempore
judgment is given, its reasons are authoritative, and they may
not be altered or embellished to give further expression to what the
court meant to convey.' The Court held that such pronouncement
'better accords with the constitutionally entrenched rights of an
accused to a fair trial and the duties of a court to pronounce with
finality upon the case before it'.
[44]
In the present case, a considerable amount of time was spent by Ms
Shazi pointing out to this
court the number of additions made by the
trial Judge to the
ex tempore
judgment that was handed down by
her on 13 and 14 June 2022. With the leave of this court, she
submitted a further document after
the hearing of this appeal
detailing further differences between the
ex tempore
judgment
and the final judgment. In essence, the additions made by the trial
Judge to the
ex tempore
judgment are largely explanations of
her findings and embellishments aimed at enhancing the readability of
the judgment. In my
view, nothing turns on the additions and/or
embellishments in the final judgment unless it can be shown to the
satisfaction of
this court that they had the effect of undermining
the appellant's constitutionally entrenched right to a fair trial,
and precisely
how so. Besides, the appellant's notice of application
for leave to appeal to this court is silent in that regard.
Whether
the court
a quo
misdirected itself by failing to follow the
principles set out by the Constitutional Court in impugning the
credibility of witnesses
[45]
It is contended by the appellant that none of the witnesses who
testified for the State had implicated
him in the commission of the
offences he was convicted of. He goes on to state that in fact, all
the witnesses who had any contact
with him during the procurement
process had categorically stated that he did not improperly influence
them on the process.
[46]
The evidence does not support the appellant's contention. The State's
evidence demonstrates that
the appellant initiated the project to
procure Watakas from Intaka Investments (Pty) Ltd (Intaka), of which
Dr Savoi is a director.
The appellant acknowledged that his
involvement in the project followed an invitation to join a
government delegation sponsored
by Dr Savoi to observe Watakas in
operation in Brazil. As Head of Treasury, the appellant understood
that water service provision
to rural communities fell under the
purview of the DLGTA. Had he been convinced of the Watakas' efficacy
in addressing KZN's water
shortage, the appropriate course of action
would have been to engage Ms Gumbi-Masilela, then Head of the DLGTA,
and advocate for
a competitive tender process. Such a process would
have allowed for a comprehensive evaluation of the Watakas' benefits
against
alternative solutions available in the market.
[47]
Instead, the appellant had deliberately circumvented the legal
requirement to comply with the
procurement processes in the
acquisition of the Watakas by sending an internal memorandum to MEC
Mkhize
[10]
in which he recommended in no uncertain terms that,
inter
alia
,
'an amount of R22m be allocated from the Poverty Alleviation to
provide the water purifying equipment to optimise on the benefits
from this equipment.' As the Head of Treasury at the time, the
appellant must have been fully aware that MEC Mkhize would not only
act on his recommendation but also impress upon his counterpart in
the DLGTA, MEC Mabuyakhulu, to do likewise.
[48]
In essence, the appellant had set the ball rolling by applying his
influence at the highest level
of the political formation in the
Province at the time. Thereafter, all he had to do was monitor
further developments from the
side-lines while he applied undue
pressure on Ms Gumbi-Masilela and the subordinate officials in the
three departments concerned
to see to it that the project came to
fruition.
[49]
At no stage during that process did the appellant disclose to either
one of the two MECs or any
of the officials who ended up being
saddled with the project, that he stood to acquire benefits for both
himself and the ANC if
the project came to fruition. All he did was
to make a vague statement to MEC Mkhize that 'we have been exposed to
the workings
of the equipment in similar conditions in Brazil',
without making the full disclosure to him that he was part of the
delegation
that was sponsored by Dr Savoi to travel to Brazil, and
that he and his wife had subsequently developed a personal
relationship
with Dr Savoi.
[50]
In the circumstances, I do not believe that the trial Judge can be
faulted for the finding she
made against MEC Mkhize during her
assessment of the evidence that was led during the trial. It is clear
from the contents of the
aforesaid memorandum that the appellant's
intention was to influence MEC Mkhize improperly to 'rush' into the
acquisition of the
Watakas without due compliance with the
procurement processes of the Province. In my view, the trial Judge
was justified in her
finding that MEC Mkhize had shown himself to be
a State witness who was favourably disposed towards the appellant as
evidenced
by his denial of what appears to be an obvious inference
from the contents of the aforesaid memorandum.
[51]
In fact, the appellant was so determined to see the project coming to
fruition that he even sent
the relevant draft agreements to be
concluded amongst the three departments concerned to MEC Mkhize
[11]
for his perusal and discussion with MEC Mabuyakhulu and the Acting
Head of the Economic Department. By then, the cost of the acquisition
of the 22 Watakas had ballooned from R22m to R43,230m. Needless to
say, for an expenditure of that magnitude one would have expected
MEC
Mkhize to insist upon compliance with the procurement processes,
which he never did.
[52]
As for Ms Coetzee, her evidence that she was the Accounting Officer
of the Provincial Treasury
at the time was, in my view, merely a
farce. Whether or not she was, the fact of the matter is that she had
no knowledge of the
actual origins of the project in respect of which
a hefty sum of R43m was expended by the Province without due
compliance with
the procurement processes. As stated elsewhere in
this judgment, she and the other officials in the three departments
concerned
had unwittingly become pawns in a larger scheme of things
that was carefully orchestrated by the appellant to benefit himself
and
the ANC at the expense of the poor.
Whether
the court
a quo
had misdirected itself on the elements of
fraud
[53]
Irrespective of what was stated by the court
a quo
in the
opening paragraphs of its judgment, its finding regarding the charge
of fraud was that the appellant 'misrepresented, to
the prejudice of
the South African Government and the fiscus, that the procurement of
the Wataka purification plants was urgent
and of fair value, and that
the normal procurement process should be waived.' In the
circumstances, I do not understand the basis
of the appellant's
contention that the court
a quo
misdirected itself in such a
finding.
[54]
The finding of the court a qua that the appellant was guilty of the
crime of fraud was borne
out by,
inter alia
, the direct
evidence that was led against him by the State at the trial, which
was not refuted by the appellant by giving his own
evidence to the
contrary. The effect of his decision not to testify in his own
defence was to leave the evidence that was led by
the State against
him unchallenged.
The
decision of the CPC to waive compliance with the procurement
prescripts
[55]
It is contended by the appellant under this ground that he was not
the Central Procurement Committee
(CPC), but just one member out of
the 11 members of that Committee, of whom six were required to
constitute a quorum. His further
contention was that his one vote did
not constitute a decision of the CPC. Instead, a decision of the CPC
is taken by the majority
vote of its members.
[56]
In my view, this ground is indicative of an apparent misunderstanding
on the part of the appellant
of the basis on which he was convicted
by the court
a quo
. It is immaterial as to who made an
application for waiver or how many members of the CPC voted for the
approval thereof. What
is of crucial importance is that he failed to
disclose his relationship with Dr Savoi, or the benefit he stood to
acquire for himself
and the ANC, when the CPC members voted by
round-robin in favour of granting the waiver. This is exacerbated by
the fact that he
was the Chairperson of the CPC at the time.
[57]
The same applies to the Cabinet resolution to accept the
recommendation and authorise the allocation
of R43m from the Poverty
Alleviation Fund. In my view, it is immaterial that the appellant was
not a member of the Cabinet that
adopted the resolution to accept the
recommendation. It was precisely for that reason that the appellant
decided to first approach
MEC Mkhize to improperly influence him
about the purported urgency and benefits of the Watakas so that MEC
Mkhize would, in tum,
convince his Cabinet colleagues to accept the
relevant recommendation.
Whether
the court
a quo
made findings which are not supported by
evidence/ or are contrary to the evidence adduced by the State
[58]
Contrary to what is suggested by the appellant under this ground, my
view is that the findings
made by the court
a quo
against the
appellant were all supported by evidence. This included the evidence
that an amount of R1.053m was paid by Dr Savoi
to Kuboni & Shezi
Attorneys at the behest of the appellant, which was confirmed by the
appellant in his s 115 statement. It
is inexplicable as to how the
reduced amount of R1m was allegedly paid by the appellant to MEC
Mabuyakhulu in cash, and what entitled
him to use the said amount for
his personal benefit in the first place.
[59]
This court concurs with the court
a quo'
s finding that the
payment in question supports the inference that the appellant
received an illicit benefit from Dr Savoi for facilitating
business
dealings between Dr Savoi's company and the KZN Provincial
Government. This inference is given credence by the appellant's
admissions in hiss 115 statement in which he stated,
inter alia
,
that:
(a)
In March 2004 he was invited to be part of the delegation that
visited Brazil to be shown
how the equipment operated as it had
already been installed in hospitals in Brazil;
(b)
In 2005, after receiving communication from the then Special Advisor
to the Minister of
Public Enterprises, Mr Rafiq Bagus, reiterating
the trade benefits of Dr Savoi's projects to the Provincial
Government, he requested
Dr Savoi to provide him with a proposal for
the provision of water purification plants which he had already
provided to the Trade
and Investment KwaZulu-Natal (TIKZN) because
there was a critical need for clean water in rural communities;
(c)
On 9 May 2005 he advised Dr Zweli :Mkhize ('MEC Mkhize'), who was the
MEC for Finance
and Economic Development at the time, about the
Intaka proposal. He indicated to him the benefits of the project and,
as the Head
of Treasury at the time, recommended to him that the
funding for the project be allocated from the Poverty Alleviation
Fund, subject
to the approval of MEC Mkhize;
(d)
On 6 December 2005 he supported the DLGTA's application to the
Central Procurement Committee
(CPC), of which he was the chairperson
at the time by virtue of his position as the Head of Provincial
Treasury, for waiver of
the normal procurement procedures. The
members of the CPC voted by round-robin;
(e)
On 2 February 2006 the decision of the CPC to grant the DLGTA's
application for waiver was
ratified at the meeting of the CPC, at
which he was not present. Shortly thereafter, an agreement of
undertaking was signed between
Intaka and the Head of Department of
the DLGTA for the purchase of 22 water purification plants in
February 2007;
(f)
In 2004 he was a member of the ANC and, as such, had had a discussion
with Dr Savoi
about him donating to the ANC. That was prior to him
doing business with the Provincial Government. In 2007, after the
DLGTA's
undertaking to purchase 22 water purification plants from
Intaka, he was approached by Dr Savoi who indicated to him that he
was
ready to make a donation to the ANC, and wanted to donate a sum
of R1m;
(g)
Like most donors to political parties, Dr Savoi was uneasy about
disclosing his identity
as a donor to a political party. In the
circumstances, the appellant directed him to an attorney, Mr Sandile
Kuboni, to discuss
with him the mechanism of paying the donation over
to the ANC. The appellant knew Mr Kuboni through his membership of
the ANC as
he used to do legal work for the ANC, and also handled
donations on its behalf. The appellant had also used Mr Kuboni' s
services
in his personal capacity;
(h)
At the beginning of 2007 the appellant had several business
interests, which included a
hotel in Pietermaritzburg, a restaurant,
and an agricultural farm, which were not doing well at the time and
had hit a financial
slump. A few days after his discussion with Dr
Savoi about the donation to the ANC he was advised by Mr Kuboni that
the donation
had been paid by Dr Savoi;
(i)
As he knew that the donation would be required for the ANC Provincial
conference
in 2008, he asked Mr Kuboni to hold off on paying the
donation over to the ANC and decided that he was going to use the
money to
ease off the financial strain that his businesses were
under. He would then pay the money over to the ANC when it was
required
for the conference. He requested Mr Kuboni to pay the money
to his business creditors at the time and, occasionally, to his wife;
and
j) During the remainder
of the year he was able to save the money from his business and make
up the R1m he had used. He then advised
MEC Mabuyakhulu that he had
raised funds for the ANC provincial conference and that he should
call for them when they were required.
On 11 June 2008 he handed the
sum of R1m in cash over to MEC Mabuyakhulu.
[60]
The amount that was paid by Dr Savoi to Kuboni Shezi Attorneys had
remained at the appellant's
disposal for more than a year, and a
sizeable portion of it was used to pay the appellant's creditors.
This was in direct contravention
of the appellant's fiduciary duties
as the Head of Treasury, whose responsibilities include,
inter
alia
, the proper utilisation of funds in the fiscus of the
provincial government in accordance with the applicable law. The
appellant
abused his office to enrich himself at the expense of the
poor, who are the intended beneficiaries of the poverty alleviation
fund.
[61]
The contents of the appellant's s 115 statement were confirmed by Mr
White in his evidence
[12]
,
who testified that the investigation of Intaka revealed that a letter
dated 15 February 2007
[13]
was sent by Kuboni Shezi Attorneys to Dr Savoi enclosing what
purported to be their tax invoice for 'legal fees'. During the
investigation,
the same invoice had morphed to become 'consultant's
fees', and later to 'commission', before it was finally referred to
as a 'donation'.
Whether
the court
a quo
made findings which are not supported by
evidence and/or are contrary to the evidence adduced by the State
[62]
The multiplicity of issues that are raised by the appellant under
this ground do not, in my view,
warrant detailed scrutiny by this
court of the ancillary findings made by the court
a quo
during
its assessment of the evidence. In my view, it will not serve any
purpose for this court to go through the judgment of the
court
a
quo
with a fine toothcomb to determine whether each and every
ancillary finding made therein was supported by evidence. This will
render
this judgment unnecessarily long, in much the same way it took
this court almost the whole day to hear the submissions made by the
appellant's counsel alone. For the purposes of this judgment, it
suffices to state that there is no merit in the appellant's argument
that the court
a quo
made findings which were not supported by
evidence or contrary to the evidence adduced by the State.
Whether
the court
a quo
failed to apply the basic rules of documentary
evidence and authentication of documents/allowed inadmissible hearsay
evidence despite
objections
[63]
In my view, the issues raised by the appellant under these grounds
should rightfully have been
raised with the trial Judge during the
trial. Besides, there is nothing in the record which suggests that
the authenticity of any
of the documentary evidence that was
presented by the State witnesses at the trial was put in question by
the defence at any stage
during the trial. In fact, there is no doubt
that the appellant had full knowledge of the contents and the
author/s of each document,
as well as the circumstances under which
it was authored and/or formulated.
Whether
the court
a quo
misdirected itself as to the correct
application of the law
[64]
It was contended by the appellant under this ground that the court
a
quo
misdirected itself in convicting the appellant on a charge
under the Corruption Act 94 of 1992 (1992 Act) when such Act had been
repealed at the time the offence was committed. However, all that the
court
a quo
stipulated in its judgment was that in respect of
counts 1 (fraud), 2 (corruption), and 3 (money laundering), 'the
allegations
are proved against accused 1', meaning the appellant.
[65]
In respect of count 2 (corruption), the State had also preferred
three alternative charges against
the appellant for contravening the
relevant provisions of the Prevention and Combating of Corrupt
Activities Act 12 of 2004 (2004
Act). Therefore, the fact that the
judgment of the court a qua is silent as to which legislation the
appellant was convicted under
does not necessarily mean that it was
under the 1992 Act, which had been repealed. If the 1992 Act is not
applicable, then the
effect of the three alternative charges under
the 2004 Act is that the appellant was convicted of the crime of
corruption under
the new 2004 Act, which is currently applicable.
The
alleged failure of the court
a quo
to give judgment/reasons on
the application for a discharge in terms of section 174
[66]
Contrary to what is suggested by the appellant under this ground, it
is not unusual for a court
to give the reasons for its decision not
to discharge an accused in terms of s 174 at the end of the trial.
Ordinarily, the court
would incorporate the reasons for its decision
on the application in terms of s 174 in the main judgment. Assuming
that it fails
to do so, I do not believe that this entitles an
accused person to raise such failure as a ground of appeal,
particularly, if he
is ultimately found guilty of any one or more of
the offences with which he was charged, such as in the present case.
The
remaining grounds of appeal
[67]
As for the remaining grounds that are relied upon by the appellant in
this matter, I am satisfied
that the issues raised in respect of such
grounds are adequately covered in other parts of this judgment. In
particular, I do not
believe that there is any basis for the
allegations made by the appellant that, firstly:
the court a quo
failed to apply a proper test in evaluating the guilt of the
appellant; secondly, that the court a quo made findings
which are not
relevant to the indictment; thirdly, that the court a quo made
inferences that were not based on facts, and: lastly,
that the trial
Judge was not impartial.
Sentence
[68]
Regarding the appellant's appeal against the sentence of 15 years'
imprisonment that was imposed
on him by the court
a quo
, I am
mindful of the fact that the sentences on two of the charges of which
the appellant was convicted attract the application
of the minimum
sentence of 15 years' imprisonment. I have noted the comment made by
the trial Judge in her judgment on sentence
that she considered
imposing a sentence greater than the cumulative sentence of 15 years'
imprisonment upon the appellant, but
decided to exercise restraint
having regard to the appellant's age and his state of health. I do
not believe that there is any
basis for this court to interfere with
her discretion in that regard.
[69]
It was held by the Supreme Court of Appeal in
S
v Malgas
[14]
that:
'A court exercising
appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the question
of sentence as
if it were the trial court and then substitute the sentence arrived
at by it simply because it prefers it. To do
so would be to usurp the
sentencing discretion of the trial court. Where material misdirection
by the trial court vitiates its
exercise of that discretion, an
appellate court is of course entitled to consider the question of
sentence afresh. In doing so,
it assesses sentence as if it were a
court of first instance and the sentence imposed by the trial court
has no relevance. As it
is said, an appellate court is at large.
However, even in the absence of material misdirection, an appellate
court may yet be justified
in interfering with the sentence imposed
by the trial court. It may do so when the disparity between the
sentence of the trial
court and the sentence which the appellate
court would have imposed had it been the trial court is so marked
that it can properly
be described as "shocking",
"startling" or "disturbingly inappropriate".'
[70]
In my view, none of the extremities described in
Malgas
exist
in respect of the sentence that was imposed upon the appellant by the
court
a quo
. Taking into account the number, the seriousness
and the prevalence of the offences of which the appellant was
convicted, I think
the trial Judge was correct in her statement that
she exercised restraint in not imposing upon the appellant a sentence
greater
than the cumulative sentence of 15 years' imprisonment that
was sought by the prosecution.
[71]
In the result, the following order be made:
The appellant's appeal
against his conviction and sentence is dismissed.
M
E NKOSI
Judge
of the High Court
KwaZulu-Natal
Division, Pietermaritzburg
NQANDA
Acting
Judge of the High Court
KwaZulu-Natal
Division, Pietermaritzburg
GAJOO
Acting
Judge of the High Court
KwaZulu-Natal
Division, Pietermaritzburg
Appearances
For
the appellant:
Ms Shazi
Instructed
by:
S D Moloi & Associates Inc.
For
the respondent:
Mr Magwanyana (with Ms Ngcobo)
Instructed
by:
Stemela & Lubbe Inc., Pretoria
Director of Public
Prosecutions, Pietermaritzburg
[1]
See para 3 of Mabuyakhulu's affidavit, which appears at page 676 of
the record.
[2]
See para 8 of Mabuyakhulu's affidavit, which appears at page 677 of
the record.
[3]
Mr White is a forensic investigator, and his evidence appears in
pages 2308 line 22 to 2310 line 14; pages 2414 line 4 to 2422
line
22 of the record.
[4]
Pages 2632 line 2 to 2633 line 24 of the record.
[5]
S v Van der Meyden 1999 (2) 79 (W) at 82C-E.
[6]
S v Bhengu
1998 (2) SACR 231
(N) at 232D-G.
[7]
S v Boesak
[2000] ZACC 25
;
2001 (1) BCLR 36
; 2001 (I) SA 912
para 24 (Boesak).
[8]
Vol 34 pages 3410 to 3412 of the record.
[9]
Tuta v The State
[2022] ZACC 19
;
2023 (2) BCLR 179
(CC);
2024 (1)
SACR 242
(CC) at para 6 (Tuta).
[10]
Dated 9 May 2005 (Vol 1 page 1 of the record).
[11]
Under cover of an internal memorandum dated 11 July 2005 (See Vol 1
page 4 of the record).
[12]
Page 2309 lines 9 - 20 of the record.
[13]
Exhibits 'MK2' and 'MK3' at pages 623 and 624 of the record.
[14]
S v Malgas
[2001] ZASCA 30
;
[2001] 3 All SA 220
(A) at para 12
(Malgas).