IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO. CA&R 2 45/2022
In the matter between:
BATHAND WA BAZUKILE NDYA MARHA FIRST APPELLANT
NDYAMARHA TRADING CLOSE CORPORATION SECOND APPELLANT
(registration number 2010/102267/23 )
and
THE STATE RESPONDENT
JUDGMENT ON APPEAL
Metu AJ
INTRODUCTION
[1.] Following upon the conviction and sentence by the Regional Division of the
Eastern Cape held at the Commercial Crimes Court – East London , an
application for leave to appeal was made and granted against conviction onl y.
-Of SOC
Cumulatively, t he appellants were found guilty of four (4) alternative counts of
theft of money on diverse occasions amounting to a total of R2 00 1 500.001.
[2.] The appellant s appeal to this Court against conviction with the leave of the
Court a quo . The first appellant is o ut on bail pending finalisation of the
appeal. The appellants were legally represented at the trial and pleaded not
guilty to all the charges .The main issue in this appeal is whether theft has
been proved beyod reasonable doubt.
[3.] The first appellant is the sole director, with a hundred percent (100%)
shareholding with the second appellant. The second appellant is a juristic
person incorporated in accordance with the Close Corporation Act, 69 of
1984. The name of the second appellant was changed to Bessie Pr ojects 87
on 23 October 20192. At all times material, the second appellant has been the
registered account holder of the various bank accounts held with FNB into
which the money was deposited and used by the first appellant for his profit
and personal gai n.
SUMMARY OF EVIDENCE
[4.] It is unnecessary to recapitulate the evidence in its entirety as the bulk of
evidence is common cause and we do so only to the extent necessary to
substantiate the conclusion at the end of this judgment. Where necessary, an
excerpt of the evidenc e will be extracted .
[5.] The case for the state rests on the evidence of Messrs Cocks and Blignaut of
Siyawela Travelling CC; Messrs Jonker and van Vore of Eastern Cape
Department of Education (“EC DoE”); Warrant Officer Ndevu of South African
Police Services; Ms Mazwa of National Prosecuting Authority; and Sergeant
Kana of the Directorate Of The Priority Crime Investigation (“Hawks”).
1 Vol 2; p397 line16 – p398 line3 of the transcribed record.
2 Vol 1, p252; lines 18 - 20 of the transcribed record, r/w application to amend close corporation @
p583 of volume 3.
[6.] The second appellant operates what it terms a ‘virtual bed & breakfast ’, which,
according to the first appellant, was an innovative way of being cost -effective
as there was no constant business for accommodation. With this concept, he
neither ha d to pay rent for the ‘virtual bed & breakfas t’ places, n or pay salaries
nor pay cleaning staff. Under its accommodation umbrella, the second
appellant would transact with Siyawela wh o would source accommodation on
behalf of the ECDoE.
[7.] How the transaction s which are now the subject matter of this case took place
can be summarised as follows:
[7.1.] Siyawela would receive a request from the ECDoE for
accommodation. The request would specify the number of people
to be accommodated, the date and the duration for which the
accommodation was sought.
[7.2.] Siyawela would issue the tender and invite quotations from service
providers , in this instance , being the second respondent.
Thereafter , a markup would be incorporated in to the quote and sent
to ECDoE.
[7.3.] The ECDoE would then pay the invoiced amount to Siyawela .
[7.4.] Siyawela would then remit payment to the second appellant
according to the quotation .
[8.] The fir st appellant was using at least three (3) institutions: Bay Lodge ,
Fairview Lodge , and Royal Lodge. All three (3) were what the first appellant
referred to as ‘virtual bed and breakfasts ’. In essence , these entities existed
in name only.
[9.] In accordance wi th this scheme, Siyawela invoiced the ECDoE. The first and
second appellants were paid a total amount of R2 001 500.00 as and for
accommodation. Despite this payment , the first and second appellants did not
provide any accommodation or service for the paym ent received .
[10.] The first appellant allege d that he outsourced accommodation to Mr. Rhaji, an
ECDoE official . Curiously , the first appellant , other than allegedly speaking
with him on the phone, never met Mr. Rhaji in person .
[11.] The first appellant withdrew cash and ostensibly paid Mr. Rhaji R700 000.00
for the accommodation he outsourced to him. Even when this payment was
remitted, Mr. Rhaji and the fi rst appellant did not meet.
[12.] The appellants’ case hinges on evidence of the first appellant as a single
witness. The re are several disparate grounds of appeal that the appellants
rely on. However, t his appeal essentially dovetail s on the ground tha t the trial
Magistrate erred in finding the appe llants were guilty of theft when the
trans actions between the second appellant and Siyawela w ere a contract for
the accommodation of students.
[13.] The first appellant contended that he was the only member of the second
respondent and therefore anything that was amiss would come back to him in
terms of responsibility. He vouched that when he formed the virtual bed &
breakfasts he had not intention to defraud.
[14.] According to the first appellant, there was a prepaid procurement system
between Siyawela Travelling CC and the second appellant. The submission
made on behalf of the a ppellants was that the evidence placed before the
Court a quo did not prove the elements of the crime of theft . The argument
continues that, at best for the state , an available remedy could be condi ctio
indebt i, which is founded in civil law . The hallmark of this argument is that the
Court must distinguish between theft and breach of contrac t.
[15.] It was further submitted that notwithstanding the liquidity challenges that the
appellants were facing of not being able to pay back the money re lating to the
prepaid contract, that on its own did not amount to theft but rather a civil
breach.
[16.] The appe llant submitted that he did perceive not anything wrong when Mr
Rhaji entered the picture , as it was still an arrangement for accommodation
and he was able to make more money. According to the appellant, this was
business as usu al as the s tudents/pupi ls would be accommodated . Siyawela
paid the second appellant a total of five (5) invoices amounting to R2 001
500.00 which, a ccording to the first respondent , was an ordinary business
transaction .
[17.] The version put to State witness es was that the first appel lant only became
aware that the trans action was fraudulent when the ECDoE did not pay
Siyawela . It was further revealed to state witnesses that Mr. van Vore's
signatu re was forged.
[18.] It is essential to point out that under cross -examination, the first appell ant
conceded that he and the second appellant had no legitimate claim over the
money paid by Siyawela into the various bank accounts held in the names of
the ‘virtual bed & breakfast ’ entities .
[19.] According to the first appellant , these ‘virtual bed & breakfast ’ entities h eld
sub-account s from which he c ould not transact . Hence , the money ha d to be
transferred into the main account held in the name of the second appellant .
These sub -accounts c ould only receive funds , but no payments could be
made from t hose sub -accounts except to transfer funds into the main
account3.
DISCUSSION
3 Vol 2, p290 @v lines 20 - 25 of the transcribed record.
[20.] The appellants contend that the Trial Magistrate erred in conflating the
concepts of the crime of ‘theft’ with a civil law ‘breach of contract’. The
appellants put in issue tha t the State failed to prove the elements of theft.
[21.] The elements of theft were succinctly captured in S v Boesak4, where the
court held:
‘Theft, in substance, consists of the unlawful and intentional
appropriation of the property of another (S v Visagie 1991(1) SA 177
(A) at 181). The intent to steal (animus furandi) is present where a
person (1) intentionally effects an appropriation (2) in tending to deprive
the owner permanently of his property or control over his property, (3)
knowing that the property is capable of being stolen, and (4) knowing
that he is acting unlawfully in taking it (Milton: South African Criminal
Law and Procedure: Vo l II (3rd Ed): p 616). ’
[22.] According to the investigation conducted by the witnesses called by the
respondent, Mr. Rhaji was never employed by ECDoE and was unable to be
traced.
[23.] The first appellant , under cross -examination , conceded that he had no right or
entitlement to the various amounts paid to his physically non -existent bed &
breakfast places, amounting to R 2 001 500.00.
[24.] Pertinent questions to be decided are:
[24.1.] whether the first appellant ha d guest houses or lodges in which he
could accommodate the people according to the invoices or
quotations generated ;
[24.2.] whether the appellants provide d any accommodation for which
Siyawela paid them ;
4 2000 (1) SACR 633 (SCA) at para 97 .
[24.3.] whether the appellants return ed the money paid to the second
appellant .
[25.] A consideration of the evide nce revealed that n one of the above questions
could be answered positively.
[26.] The narrative that the Court a quo erred by conflating the concept of the crime
of theft with the civil law breach of contract is misplaced . This line of argument
cannot be corre ct as the evidence presented before the Court a quo is
essentially common cause and satisfied the elements of theft simpliciter as
enunciated in S v Boesak5 supra.
[27.] The presiding Magistrate cannot be fa ulted on his findings of fact. It is trite that
the Appeal Court will not interfere with the decision of the Court a quo in its
finding of fact as that Court is in a the more favourable position when arriving
at a decision thereon . The Court of first instance is better poised to make
observations of witnesses who have appeared before it. Only where it has
been established that there were misdirections of fact or reasons for judgment
are unsatisfactory will the Appeal Court interfere. The default position is that
the Appeal Court assume s that the Court a quo’ s findings are correct and will
accept these findings, unless it is convinced that these are wrong6.
[28.] In S v Monyane and Others ,7 it was categorically stated that the Appeal
Cour t is only in exceptional cases entitled to interfere with the Trial Court’s
evaluation of oral evidence.
[29.] In this matter , we find no reason to interfere with the Trial Magistrate’s
evaluation of facts. An objective assessment of the facts before the Court a
5 2000 (1) SACR 633 (SCA) at para 97
6 F v Dhluma y and Another 1948 (2) SA 677 (AD) at 705 -6.
7 2008 (1) SACR 543 (SCA) , at para [15]
quo reveals tha t in the evaluation process, the Trial Magistrate weighed up all
the evidence presented.8
FINDING AND ORDER
[30.] We are persuaded that the State adduced credible evidence that proved the
essential elements of theft.
[31.] Regarding the factual findings by the Trial Magistrate, we are inclined to defer
to the Trial Magistrate a nd are satisfied that the appellant was correctly
convicted.
[32.] In the circumstances, t he appeal is dismissed and the appellant’s conviction is
confirmed.
_______________ ____ _____________
B. METU
ACTING JUDGE OF THE HIGH COURT
I agree.
_______________ _________________
S.A. COLLETT
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
For the Appellant: Adv. J R Koekemoer
Instructed by N N Dullabh & Co
5 Bertram Street
8 S v Khumalo and Another 2023 JDR 4032 (GJ) @ 24.
Makhanda
For the Respondent: Adv L Poswa
Instructed by The Office of the Deputy Director of
Public Prosecutions
94 High Street
Makhanda
Date s heard: 27 November 2024
Date delivered: 11 March 2025