A106/2025 -avs 1 JUDGMENT
27-01-2025 (Ex-Tempore)
1 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO : A106/2024
(1) REPORTABLE: YES / NO.
(2) OF INTEREST TO OTHER JUDGES: YES / NO.
(3) REVISED.
DATE 19 March 2025
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In the matter between
RUSHIL SINGH Applicant
and
THE STATE Respondent
EX TEMP ORE JUDGMENT 20
KUNY , J:
Judgment in this matter is as follows: 1. The appellant was charged with his sister, Nishani Singh, with two
counts of forgery, t wo counts of uttering and one count of fraud. The charges
relate to the alleged forging of two demand guarantees issued by Stanbic Ghana and presented to Investec Bank pursuant to a Term Facility Loan
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Agreement ("loan agreement"), entered into between Big Business Innovations
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2 Group (Pty) Ltd ("BI G") and Investec Bank.
2. 2.1 The charges relate to demand guarantees issued by Stanbic in
Ghana ("Stanbic") on behalf of GIC to satisfy the condition imposed by Investec
that such guarantees be presented before monies were advanced. It is alleged
that the guarantees were forged and fraudulently presented to Investec to
induce it to loan large sums of money to BIG.
2.2 It is not disputed that two demand guarantees were actually
presented to Investec, who, acting on them, loaned an amount of R178 -million 10
to BIG. When BIG did not repay the loans, Investec called upon Stanbic to
honour the guarantees . However, Stanbic denied that it had issued the
guarantees in the form in which they were presented, and informed Investec that the guarantees that were presented for forgeries.
3. The appellant was initially arrested for another case on
17 January 2024 at OR Tambo Airport on his arrival from Ghana. The case
against him involved fraud charges relating to a R1- million credit card facility
granted by Nedbank. The appellant was granted bail in respect of that case. It
is alleged that altered bank statements were submitted on the applicant's
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behalf in order to induce the bank to extend his credit facilities.
4. The appellant and Ms Singh were subsequently arrested on or about 26
August 2024 on the charges referred to in paragraph 1 and 2 above. On 27
August 2024 they applied to the Regional Court Palm Ridge for bail . They were
denied bail. An appeal to the High Court against the refusal of bail was
dismissed by Dosio J on 25 September 2024.
5. The appellant, together with his deceased sister, were shareholders and
directors in BIG and its subsidiary, Global Innovative Consulting Ltd (a
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company registered and incorporated in Ghana) ("GIC").
6. In terms of section 51(2) of Act 107 of 1997 read with Schedule 2, Part
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3 2, the offences carry a minimum sentence of 15 years' imprisonment in the
case of a first offender, unless substantial and compelling circumstances are shown.
7. On 25 November 2024 (after the death of his sister in prison on
19 October 2024) , the appellant brought a further bail application before the
Regional Court contending that new facts had arisen. On 28 November 2024
the regional magistrate who heard the first bail application again refused to
grant bail to the appellant. She found, inter alia, that the appellant had just
reshuffled the evidence from the previous bail application, and that he was
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opportunistically attempting to blame his sister for the commission of the offences, as she was unable to answer for the crimes that had been committed.
8. The current bail appeal is an appeal against the refusal of the regional
magistrate to grant the appellant bail on new facts. It is common cause that the
offence in respect of which the appellant seeks bail is a schedule 5 offence. H e
has an onus to satisfy the Court that it is in the interest of justice that he be released on bail.
GROUNDS FOR NEW APPLICATION 20
9. The appellant in his affidavit filed in support of his new bail application
states that he was advised by his legal representative in his initial bail
application to seek a postponement to deal with the investigating officer's affidavit opposing bail. However, because his sister was gravely ill, he decided
to go ahead with the bail application notwithstanding this advice. He did not
know that he could postpone his bail application and have it heard separately from his sister's application.
10. The substance of the appellant's application on new facts is that after
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he was initially denied bail, he received the contents of the docket. He contends
it is clear from the docket that the State does not have any evidence directly linking him to the commission of the offence. He contends that the evidence
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4 shows that the fraud was committed by his deceased sister, assisted by other
co-directors and employees. The appellant alleges that:
10.1 His late sister managed the activities of GIC and BIG in Ghana,
and she was involved in raising the working capital for these companies
in Ghana. He was not involved in the day -to-day activities of BIG and
GIC. He was responsible for limited operational matters of BI G in
South Africa.
10.2 His late sister was the mastermind of the fraud and was assisted
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in this regard by his other co- directors and employees in GIC and BIG .
He was aware that Investec required demand guarantees from Stanbic
in Ghana. However, these were arranged by his late sister, and he did
not know that they had been forged. He was not involved in the
negotiations between his deceased sister, Stanbic and Investec in relation to the demand guarantees and he believed that proper and lawful processes had been followed in producing and presenting the guarantees.
10.3 He was not copied in any of the fraudulent emails and
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consequently , there is no evidence that he was aware of the emails that
were sent to Investec.
10.4 He was only implicated in the fraud because he allegedly
received substantial benefits from the money loaned by Investec to BI G.
11. It appears from the papers that the appellant has been sequestrated.
Scant details are furnished in this regard . However, he states that he will assist
his trustee to preserve the value in his sequestrated estate. He also states that
he is appealing his sequestration. The appellant is scathing in his criticism of
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Investec Bank, whom he blames together with his late sister , for his
predicament. He states that Investec acted belligerently and he goes so far as
to suggest that Investec personnel were either complicit in the fraud or , at least
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5 negligent , in paying out without verifying the demand guarantees.
12. The investigating officer, Sergeant S Motloung, denies that the State's
case against the appellant is weak. She states in an affidavit opposing bail on
new facts:
12.1 The appellant's email signature for the address, r […] indicated
he was the "CEO" of BI G.
12.1 At all material times the applicant was both a director and a
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co-shareholder of both BI G and GIC . GIC is a wholly -owned subsidiary
of BI G.
12.3 The applicant had by the end of 2020 been involved in
numerous credit applications to various banks. As a chartered
accountant, it is unthinkable that he did not understand how bank demand guarantees function and what is required before a bank will issue them.
12.4 The evidence shows that the appellant was provided with daily
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updates on the balances in the bank accounts of BI G and GIC, and he
was aware from this that these companies did not have the finances required to support the issue of the demand guarantees by Stanbic.
12.5 Proceeds of the Investec loan in the amount of R135 million
were immediately converted into US dollars and transferred to GIC. A
substantial amount of these funds were transferred into personal accounts controlled by the appellant.
12.6 The appellant used the proceeds of monies paid out by Investec
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to purchase high value motor vehicles. It is alleged that in January 2022
he purchased a Porsche motor vehicle from funds held in his Stanbic Ghana account for an amount of US $1.4-million. He also utilised the
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6 funds to purchase two McLaren sportscars valued at approximately
R45-million.
13 The State contends that the regional magistrate in the Court a quo was
correct in finding that no new facts were presented to the Court that entitled the
applicant to a reconsideration of the refusal of bail.
DISCUSSION
14. The appellant and his late sister signed the loan agreement on 14 April 10
2021. The demand guarantee was defined in the loan agreement as a finance
document and it was pivotal to the grant of the loan. Clause 1.18 of the loan
agreement provides as follows:
"1.18 'Demand guarantee' means the on- demand ZAR denom inated
guarantee for an amount of ZAR 150 000 000 in a form and substance
satisfactory to the Lender issued by Stanbic Bank Ghana in favour of
the Lender, or on the terms and conditions contained therein."
15. On 17 April 2021 Investec's Deal Team sent Ms Singh and the
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appellant comments regarding the required wording of the proposed
R150 -million demand guarantee to be issued by Stanbic on behalf of GIC. Ms
Singh's repl ies to this email were copied to the appellant. On 12 April 2021 Ms
Singh forwarded to the appellant documents regarding the loan agreement and
the changes that Investec required to the proposed Stanbic guarantee. On the
same day Ms Singh informed Investec that they were awaiting Stanbic's
feedback on Investec's proposed changes. This email was copied to the
appellant.
16. The forged demand guarantee was emailed to Investec on
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19 April 2021 by Ms Singh, and was apparently not copied to the appellant. On
21 April 2021 R150 million was paid in South Africa to BI G's Standard Bank
account . Of this amount , R135 million was then paid to BI G's Investec account,
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7 and these funds were converted to US dollars and transferred to GIC's Stanbic
account in Ghana.
17. The appellant alleges that the loans sought from Investec were required
as working capital to execute a contract with the government of Ghana to build
roads and that he was told by his sister that the guarantees were issued
against an "award letter" in respect of this contract. He further states that he
thought that his sister used her personal assets to raise the guarantees. The
appellant also alleges that GIC utilised property in Ghana as security for the
issue of the demand guarantees. He states that he did not know that the 10
guarantees had to be backed by money held in the accounts of BI G or GIC.
18. In addition to being a signatory to the loan agreement, the appellant,
together with his late sister, gave a personal suretyship for the repayment of the loan. He was an obligor in terms of the loan agreement, and he made
representations and gave warranties to Investec to support the loan.
19. In my view, it is improbable that the appellant was not aware of the form
in which the demand guarantee had to be provided and that it had to be underpinned by funds held by GIC in a bank account in Ghana. The appellant's
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alleged belief that Stanbic would issue the guarantee on the basis of an award
letter for the building of roads, or on the basis of personal assets held by Ms
Singh, or on the basis that GIC held property in G hana, is implausible.
20. The fact that an amount of R135 million of the monies loaned by
Investec remitted to Ghana (or a substantial part thereof) , found their way into
the appellant's personal bank account and were used by him for personal
expenses, including the purchase of a very expensive sportscar, does not lend any credibility to the appellant's explanation that he was ignorant of the submission of fraudulent guarantees. On his own version, the monies loaned
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were working capital for the building of roads. How then did they come to fund
the appellant's lavish expenditure?
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8 21. The appellant's explanation as to how he thought Stanbic came to issue
the demand guarantees is also contradictory. If they were issued against the
security of GIC's property, then the property would have to be secured by a
bond or some other form of security. As a director BIG and GIC, he would have
had to authorise this transaction. When the loan agreement was signed, the
precise form of the demand guarantee had not been specified. The statement
that his late sister used her personal wealth to provide security is similarly vague and implausible. Why, if he was to benefit in the manner that he did, was
he not required to stak e any of his assets in the production of the demand
guarantees? The explanation that he thought that the demand guarantees were
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issued against an award letter is also implausible. The appellant, as a
chartered accountant and as a shareholder and director of BI G and GIC, would
have been aware that something more was required by Investec before they would pay over the substantial amount of money they had agreed to loan. In my
view, there is credible evidence to show that the appellant was involved in and party to the presentation of fraudulent guarantees to Investec.
22. A court hearing a bail application is not required to adjudicate the merits
of a case . However, in view of the fact that the merits of the case against him is
the issue raised by the appellant, this Court can assess such issue. In my view,
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even though it may be said that the evidence does not show that the appellant
physically submitted the fraudulent guarantee to Investec, there is credible
evidence to sustain a finding that the appellant was party to the forgery and presentation of the fraudulent guarantees to Investec. This is a matter that will
have to be decided by the trial court. At this stage it is but one of the facts that
the Court took into account in denying the appellant bail.
23. The statement in the appellant's affidavit submitted in his initial bail
application that he had not been fully apprised of the full extent of the charges and amounts involved was cl early false. The charge sheet, although only
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provided on the day of his appearance, was detailed and very specific as to the charges against the appellant and Ms Singh and the amounts involved.
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27-01-2025 (Ex-Tempore)
9 24. Even without having been provided with the docket, the appellant had
an opportunity at that stage to place before Court his defence that the demand
guarantees had been obtained and submitted by Ms Singh, and that he was not
aware that they were forged. He consciously chose not to do so, on his version,
because of his sister's illness. There was no reason why he could not have
postponed his application and reformulated his affidavit. He was represented
by experienced senior counsel who advised him to do exactly this. I agree with
the Court a quo that the shifting of blame by the appellant to his deceased
sister, now that she will no longer be able to testify about her and the
appellant's involvement in the loan agreement and the issuing of demand 10
guarantees, is opportunistic.
25. The regional court magistrate hearing the bail application found,
amongst other things, that the appellant was a flight risk if he was released on bail. This finding was confirmed by Dosio J on appeal. The learned judge in that
appeal set out the evidence in relation to the risk and the reasons he agreed that the appellant should not be admitted to bail. Those findings cannot be revisited by this Court.
26. A further ground advanced by the appellant is that he needs bail so that
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he can attend to the winding- up of his late sister's estate and deal with his legal
challenges that have beset him since the fraud relating to the guarantees was discovered. He states that he is unable to attend to these issues from a prison
cell.
27. On 15 November 2024 the appellant's attorney wrote a letter seeking
his trustee's support for the appellant's bail application on new facts. The
appellant promised to cooperate, inter alia, in identifying assets relating to his and his deceased sister's estate and their associated companies , so as to
minimise the indebtedness of his insolvent estate. He submit s that this would
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be to the benefit of creditors.
28. In reply to this letter on 18 November 2024 (prior to the hearing of his
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10 new bail application) the joint provisional trustee, KS Pollock, states that the
appellant has not cooperated to date, and that he continues to withhold and
conceal assets from the trustees. He specifically asked the appellant to inform
him of the whereabouts of two McLaren Senna sportscars, a Toyota Yaris and
a BMW M4 motor vehicle. Pollock declines to support the appellant's release
on bail because of the appellant's failure to cooperate. It appears that the
whereabouts of the Porsche motor vehicle purchased by the appellant for an
amount in the region of US $1.4-million is also still undisclosed.
29. The information provided by the appellant's trustee in relation to the 10
appellant's lack of cooperation is troubling. It also contradicts the appellant’s
assertion that if he were released on bail, he would be in a position to assist in
the recovery of funds to help settle his debts and those of his late sister's estate. It demonstrates a lack of bona fides on his part, and supports the
State's argument that the appellant remains a flight risk. It is a new fact that
counts against the appellant.
30. The appellant is "clutching at straws" when he complains that his prison
cell cannot accommodate all the multitude of documents that he will be required to work with in preparation for his legal matters. Electronic copies of
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documents can be made available, and if he is not provided with the necessary
facilities and tools to prepare for trial and fight his legal battles, he has other
remedies.
31. I have for the purposes of this appeal considered that the facts put
forward by the appellant in his second bail application after he received the docket entitle him to be reheard on the issue of bail. That said, I am not at all
satisfied that the regional court magistrate who denied the appellant bail on two occasions, and in particular on new facts, was wrong. Even if the so -called
"new facts" raised by the appellant are taken into consideration, I am of the
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view that they do not constitute grounds to release the appellant on bail.
ORDER
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32. In the circumstances, I make the following order:
32.1 The appeal against the refusal to grant the appellant bail on new
facts is dismissed.
KUNY J
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
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APPEARANCES:
APPEARANCE FOR THE APPLICANT: MR GRO VE
APPEARANCE FOR THE RESPONDENT: ADV MHLONGO