IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION: MTHATHA]
CASE NO. CA&R29/2024
In the matter between:
AYANDA MATINISE Appellant
and
THE STATE Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
JOLWANA J
Background.
[1] It is now more than five years since the onset of the worldwide pandemic which
became commonly known as the covid -19 pandemic. No country was spared from
the ravages of this pandemic whose death toll, according to Worldometer1, stood at
more than seven million deaths worldwide and more than one hundred thousand in
South Africa as at the 13 April 2024. South Africa was one of the countries in which
reports of confirmed infections and deaths started trickling in thick and fast and later
1 https://www.worldometers.info
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engulfed the whole country like wild fire. The South African government found itself
having to declare a national state of disaster in terms of the Disaster Management
Act2. The covid -19 pandemic forced the hand of the South African government to
also impose a national lockdown amongst other drastic measures that it took. It also
made a fundamental shift in some of the procurement processes in respect of the
things that were considered urgently needed to ameliorate the situation and save
lives.
[2] These included a drastic change in the procurement processes by various
government departments and other State entitles all of which had to procure, with
extreme urgency, Personal Protective Equipment (PPE) including masks to mitigate
the infection rates amongst its citizens and prevent some of the preventable
infections and losses of lives. Fo r its part, the Eastern Cape Provincial Department
of Health (the department) also adopted a policy of issuing commitment letters for
the urgent procurement of surgical masks and gloves from service providers.
[3] This matter has its genesis in a fraudulen t commitment letter that was purportedly
issued to a service provider for the procurement of surgical masks and gloves in the
circumstances alluded to above. This is an appeal against the conviction and the
sentence imposed on the appellant on charges of f raud and forgery. He had pleaded
not guilty to all the charges preferred against him and elected not to disclose the
basis of his defence. The appellant was nevertheless convicted and sentenced to 10
years imprisonment at the conclusion of his trial. The a ppeal is with the leave of this
Court granted on petition to the Judge President subsequent to the refusal of his
application for leave to appeal by the court a quo.
2 Disaster Management Act 57 of 2002
The evidence of the State.
[4] The first witness for the State was Ms Mgijima who testif ied that she was
employed by the department as the general manager, supply chain management.
There were six units that she was responsible for, which were the demand
management, acquisition management, contracts management, procurement and
logistics, asset management, supply chain management and risk and compliance.
This matter emanated from the supply chain management unit which was primarily
responsible for the procurement of the PPE during the covid -19 pandemic. In the
supply chain management unit, they generally followed two processes. There was a
competitive bidding process which was the primary procurement process. After the
declaration of the national state of disaster, national treasury issued an instruction
notice giving government departments guid elines on the deviation processes they
needed to follow in urgently procuring PPE and the maximum permissible prices.
[5] At that time masks that were available on the market were the KN95 masks.
However, the department’s facilities were in urgent need of the N95 masks. Because
of the scarcity of the N95 masks in the market, they decided to adopt a procurement
process in which suppliers would indicate that they would be able to supply the N95
masks. They would then be issued with commitment letters on the b asis of which
they would be allocated a certain number of items they would supply and on delivery,
they would be issued with purchase orders. Either herself and in her absence, Ms
Bolo, a colleague of hers, would sign commitment letters. When Ms Mgijima wa s
shown a commitment letter that had purportedly been issued to Falaz Protection
Services (Falaz) and was asked to identify the signature thereon, her immediate
response was that it seemed to have been signed by Ms Bolo. However, the KN95
masks and the thr ee ply blue surgical masks for which that commitment letter was
issued were not part of the deviation process as they were not scarce items.
[6] She testified that the Falaz commitment letter looked like the commitment letters
they normally issued, and it was in the department’s letterhead that they normally
used. The difference was that it also included nitrile non sterile powder free
examination masks which was a description they would use with reference to gloves.
Furthermore, the medium size referred to therein was also used for gloves and the
quantities of the masks were not the quantities that they would normally procure from
a single supplier. Her conclusion was therefore that the Falaz commitment letter was
not from her department. She only got to kn ow about Falaz when she received a call
from a man who identified himself as the owner of Falaz. This person said that he
had delivered stock to the department and he was making a follow up regarding
payment. He also mentioned that he was working with Aya nda who was a personal
assistant to the MEC.
[7] She already knew the appellant as someone who was working in the office of the
former MEC of the department. That man said that some stock had been delivered to
their O R Tambo District offices. On that same day she received a phone call from
Ms Titi who was the director of finance and supply chain management in the O.R.
Tambo District. Ms Titi told her that she had received a call from a supplier who was
making a follow up on payment. Ms Mgijima testified th at she and Ms Bolo had no
knowledge of the commitment letter, and they did not know Falaz and Falaz was not
in their list of suppliers. Ms Bolo had told her that she got the Falaz commitment
letter from Mr Matshotyana, the general manager for clinical support services.
[8] Ms Bokleni testified that she was the quality assurance manager in the O R
Tambo District. On 17 September 2020 she received a call from a person who
introduced himself as Ayanda from the office of the MEC. This person told her that
the department had purchased some masks for delivery to their offices. He said that
he had been asked by the MEC to arrange for their storage until the MEC distributed
them herself. A few minutes later, she received another call from a person who said
that he was the supplier of the said masks and that a truck was on the way to deliver
the masks. However, when the delivery arrived, she was not present. She asked a
storekeeper, Ms Madubaduba who was also her assistant to receive the said stock.
[9] On 3 October 2020 at about midnight, she received a text message from the said
supplier saying that they could not get hold of the appellant and enquired if the stock
was still safe. In the morning, she called the appellant, but she could not get hold of
him. She sent him a text message saying that the supplier was worried as he had not
been paid. The appellant responded that he would call the supplier and revert to her
but he never heard from him again. On 13 October 2020 the supplier called her
saying that he would be sending people to fetch the stock and on 14 October 2020
and again on 15 October 2020 the people sent by the supplier arrived and collected
all their stock.
[10] Ms Bolo testified that she was the manager of the supply chain management
unit s tationed at the department’s offices in Bhisho. She knew Ms Mgijima as her
colleague. The appellant once approached her in her office enquiring about the
department’s policies saying that he was from the office of the MEC and was an
advisor in the MEC’s of fice. She gave the appellant copies of the policies. Ms Bolo
was asked if she recognised the signature on the Falaz commitment letter which was
shown to her. She testified that the signature thereon looked like hers or was similar
to hers and she recognise d it as such. That commitment letter was signed on 9
September 2020 but she was not on duty on that day as she had taken leave of
absence to attend her brother’s funeral.
[11] She testified that Ms Mgijima was authorised to sign commitment letters, and in
her absence she was also authorised to sign them. She saw the commitment letter
issued to Falaz for the first time when Mr Matshotyana sent it to her. When she was
asked during cross-examination why, when she received the commitment letter from
Mr Matshotyana she did not immediately dispute or question its authenticity, and why
her immediate response was to ask Mr Matshotyana whether or not there was a
problem. She testified that procurement processes were confidential, thus making it
difficult for her to k now who to trust besides her colleagues in her team. Their
commitment letters were drawn by Ms Mtshawulana and signed by Ms Mgijima. She
testified that there was a deviation process for N95 masks and for KN95 masks and
insisted that they also received KN95 masks through the deviation process.
[12] The evidence of Ms Mtshawulana was that she was in the employ of the
department holding the position of an assistant director, administration. Her offices
were based at the Emergency Medical Services (EMS) in Vincent, East London. Her
duties included managing finance, supply chain management, human resource and
general administration. She was therefore also involved in the procurement of goods.
She testified that during covid -19 there were two items that could n ot be procured
through the open tender system. They were the N95 masks and examination gloves
for which a deviation process was approved. Suppliers who were able to supply
those items were issued with commitment letters instead of purchase orders and
they would be given purchase orders on delivery. She testified that she was
responsible for producing commitment letters that would then be signed by Ms
Mgijima and in her absence, Ms Bolo was also authorised to sign them. After a
commitment letter would have been signed, she would either email it to the relevant
supplier, or the supplier would fetch it from her office. Suppliers that were able to
supply those items were entered into a spreadsheet.
[13] With reference to the Falaz commitment letter, she testifi ed that it was similar to
their commitment letters, and in this case, it was issued for the procurement of KN95
masks and three-ply blue surgical masks. She was asked who signed it and she said
that it was meant to be signed by Ms Mgijima but was signed per procurationem3, Ms
Bolo. She did not know who drew or produced it because it was for KN95 and three
ply blue surgical masks for which commitment letters were not normally issued. She
never produced that particular commitment letter for Falaz. The refer ence to nitrile
non-sterile powder free examination masks was also indicative that it did not come
from her office.
[14] She further testified that she first saw the Falaz commitment letter when Ms Bolo
sent it to her on WhatsApp. Furthermore, she routinel y entered the details of their
suppliers in a spreadsheet and the name of Falaz was not in her spreadsheet. She
knew the appellant as she met him when he came with another lady delivering
gloves at their EMS base in Vincent. The said lady was there on beh alf of AVNG
Investments, one of their suppliers. She had been told by Mr Matshotyana that the
appellant would come with the said lady to deliver some gloves. The appellant
arrived with that lady and she took them to their stores. She told appellant and th e
AVNG lady to come and get a commitment letter from her office when they finished
with the delivery. She prepared a commitment letter for AVNG which she gave to the
3 Per procurationem indicates that the person signing signs on behalf of a principal by virtue of an authority
which may be implied or express – Dictionary of Legal Words and Phrases, second edition volume 3 service
issue 24, June2021, para 32.
appellant. The appellant enquired if the department still needed more gloves and she
told him that they still needed more gloves. The appellant then said that he would
come back but he never came back.
[15] Ms Mtshawulana denied ever giving the appellant the Falaz commitment letter
saying that she only gave him a commitment letter for AVNG. She testified that she
could not have given him a commitment letter for the KN95 masks and surgical
gloves as those items were already awarded and an order was issued for them. The
AVNG commitment letter was given to the appellant on 2 September 2020 and afte r
that she never saw the appellant again. Before that date she did not know the
appellant. She was told by Mr Nokela that the appellant was from the MEC’s office.
When she gave the appellant the AVNG commitment letter, she already knew that
he was from th e office of the MEC. She also testified that she and Ms Mgijima were
the only ones who drew or produced commitment letters. She disputed Ms Bolo’s
evidence that a deviation process was done for KN95 masks.
[16] The State made an application to have a state ment of a witness the State had
intended to call to testify but who, due to ill health, could not be called, admitted as
evidence. That application was made in terms of section 3 of the Law of Evidence
Amendment Act 45 of 1988. That application was opposed by the appellant but the
court a quo ruled in favour of the State and admitted the said statement which was
then read it into the record and handed up to the court. That statement was taken
from one Sefalafala who, inter alia, described himself in it as t he director of Falaz.
Some of the contents of that statement were the following. He owned a
manufacturing plant in Randburg, Gauteng where he manufactured masks. On 9
September 2020 he received a call from Khato who was his friend enquiring if he
would be able to provide masks for the department. Khato told him that he had
received a call from one Ayanda whose surname he did not know who said that he
was employed by the department and he wanted to purchase masks for the
department.
[17] He thereupon furnish ed Khato with the details of Falaz, one of his business
entities. On 10 September 2020 he received a commitment letter from Khato via
WhatsApp in which he was required to supply 700 000 KN95 masks and one million
surgical gloves. He arranged for 500 000 KN95 masks to be delivered to an address
in Mthatha. He then instructed his driver to speak to Ayanda regarding a delivery
and Ayanda told the truck driver that they should leave the stock. The next day he
phoned Ayanda enquiring about the purchase order fo r the masks and Ayanda said
that they were busy with it. After about two weeks elapsed without receiving a
purchase order he became concerned. Mr Thato then contracted the chief of staff of
the department who said that Ayanda was no longer with the departm ent, and that
they knew nothing about an order placed with Falaz. He then made arrangements to
fetch the goods from Mthatha. After the evidence of Sefalafala’s affidavit, the State
closed its case.
The evidence of the appellant.
[18] The appellant testifi ed that on 17 September 2020 he was working for the
department as a messenger in the office of the MEC in Bhisho. The commitment
letter that was sent to Falaz was given to him by Ms Mtshawulana for him to give it to
Khato. On that day a friend of his was g oing to fetch a commitment letter for AVNG
and he accompanied that friend and that was how he got to meet Ms Mtshawulana.
His friend told him that Ms Mtshawulana was giving out jobs in the department. He
and his friend drove to Vincent where Ms Mtshawulana ’s office was. They walked
into an office and the AVNG agent introduced him after which Ms Mtshawulana
printed a commitment letter. While the letter was being printed the appellant saw Mr
Nokela who shares the same clan name of Tshane with him. He greeted Mr Nokela
and had a brief conversation with him after which Mr Nokela left. The AVNG agent
told him that she was asking for a job from Ms Mtshawulana and that she had
received a commitment letter from her. After some time, he met Khato whom he
already kne w as he had told him before that he was doing fumigation for the
department. Khato told him that he was also interested in other jobs other than
fumigation. He then told Khato about a lady whom, according to the AVNG agent,
was giving out jobs. Khato asked him to speak to the said lady on his behalf. When
he went to East London at some stage, he also went to see Ms Mtshawulana in her
office.
[19] He asked Ms Mtshawulana if she still remembered him and she said she still
remembered that he worked in the offi ce of the MEC and he was a relative of Mr
Nokela. He told her that his friend Khato was looking for a job. She then said that
she had some jobs and that Khato should approach her. Khato approached her and
he later told him that he met Ms Mtshawulana and al l went well and that he was
awaiting a commitment letter from her. He again went to Ms Mtshawulana’s office
with the AVNG agent to deliver invoices and about three or four boxes of gloves
which were outstanding from an earlier delivery. He then enquired fr om Ms
Mtshawulana about Khato’s job, and she said that she would attend to it. Ms
Mtshawulana then printed a signed commitment letter and gave it to him. He took a
photo of the said commitment letter and sent it to Khato.
[20[ Appellant testified that he did not know Ms Bolo and he saw her for the first time
in court. The AVNG commitment letter was given directly to the agent of AVNG. After
he had sent the Falaz commitment letter to Khato it transpired that Khato had sent it
to Falaz and Falaz had communicated directly with Ms Mtshawulana. Khato gave his
number to Falaz as Falaz was going to do the delivery of the masks and Falaz was
not getting through to Ms Mtshawulana. The commitment letter for Falaz was given
to him on the date it was issued which was t he 9 September 2020 by Ms
Mtshawulana and he thereupon sent it to Khato.
[21] The appellant also called the investigating officer, Ms Bizani to testify as she had
not been called by the State. Ms Bizani testified that she was the investigating officer
of this case. The case was first investigated by Mark Behrens, but she also did her
own investigations when she took over. She did not know the author of the Falaz
commitment letter. From that point, the court started making remarks discouraging
the eliciting of the evidence of this witness even to the extent of being openly hostile
to the appellant’s attorney. When the appellant’s attorney asked Ms Bizani a
question about the signature on the commitment letter the presiding magistrate
indicated that his patien ce was wearing thin. The investigating officer said that she
did not know who signed the letter, but the letter reflected the details of Ms Mgijima.
She testified that she asked Ms Mgijima if she was the author of the letter and she
told her that she did n ot write it and that she did not know the signature affixed
thereon.
[22] When the appellant’s attorney indicated that it was Ms Mgijima’s evidence that
she delegated some of her duties to Ms Bolo and asked Ms Bizani if she could not
see the name of Ms Bolo in that signature, the presiding magistrate jumped in asking
if the appellant’s attorney was about to finish and said that he was about to stop the
further questioning of this witness. Despite that open hostility, the appellant’s
attorney continued and asked if the investigating officer was aware that the signature
and the content of the commitment letter were disputed, she responded affirmatively.
She was then asked if she took the letter to a forensic analyst to confirm if the letter
was not signed by M s Bolo and she said she did not do so. She was then asked if
her colleague, the initial investigating officer had done so, the presiding magistrate
again interjected before the witness could answer this question. The magistrate
asked if that evidence would not be before court if Mark Behrens had taken the letter
for forensic analysis of the signature and indicated that the court’s time was being
wasted. The prosecutor also entered the fray objecting to the questioning of this
witness about the signature on the commitment letter on the basis that the
appellant’s attorney was cross-examining his own witness.
[23] On the prosecutor’s objection the appellant’s attorney argued that the State had
conveniently not called the investigating officer despite her expla nation on the issue
of the forensic analysis of the signature being crucial to the charges. The court then
said that it would not allow the appellant’s attorney to contravene the rules by cross -
examining a witness he had called. The appellant’s attorney th en indicated that he
would withdraw questions determined by the court as cross -examination. At that
point, the presiding magistrate said that “ They are all cross -examination, your
questions. And I rule them off .” The appellant’s attorney asked if all his questions
were being ruled off and the court said yes. There were further exchanges between
the appellant’s attorney and the presiding magistrate in which it was clear that the
court was not just being openly hostile but was also being openly obstructive thus
preventing the elicitation of this crucial evidence from the investigating officer. When
at some point the appellant’s attorney made another attempt to pursue the issue of
the signature on the commitment letter, the court continued with its open hosti lity to
the extent of disparagingly questioning the capability of the appellant’s attorney to
lead and cross-examine witnesses in a criminal trial.
[24] At this stage the appellant’s attorney asked if the matter could stand down so
that he could catch his breath. Instead of granting this request, the presiding
magistrate subjected the appellant’s attorney to more ridicule and repeated
questioning his capability in the running of a criminal trial. Appellant’s attorney’s
request for an adjournment was not entertained, instead, the court excoriated him for
not taking an adjournment that had apparently been offered by the court earlier.
However, on perusal of the record, it does not appear that an adjournment was
offered at any stage after the investig ating officer started testifying. In any event, this
specific adjournment request was for a specific reason that the appellant’s attorney
felt he needed to catch his breath. This was perfectly normal and there was nothing
out of the ordinary with this requ est especially after he had been openly ridiculed in
court in the manner he was treated. In the final analysis, the matter was not
adjourned, and appellant’s attorney had to continue under those obviously difficult
circumstances. The trial continued withou t the appellant’s attorney having been
allowed to elicit evidence relating to the signature on commitment letter from the
investigating officer.
The court a quo’s judgment.
[25] In its analysis of the evidence, the court a quo correctly pointed out that t he
commitment letter that was at the centre of the charges faced by the appellant
appeared to have been signed by Ms Bolo. The court noted that the Falaz
commitment letter included KN95 masks in the items that were being procured which
were not part of the deviation process. The court found that Ms Mgijima was
unequivocal that the commitment letter was not issued by the department. It also
found to be “ a fact not speculation that any official dealing with commitment letters
would have known that the letter of Falaz was not issued by the department”.
[26] After asking itself some rhetorical questions like why would Ms Bolo or Ms
Mtshawulana, who knew the systems and procedures of the department, order
things the department did not need, the court said that there was no evidence that
those officials had anything to do with Falaz. It concluded that it was the appellant
who was dealing with the matter and the department. It is unclear if in concluding as
he did, the presiding magistrate was saying that because those officials who testified
might not have issued a commitment letter in that fashion, therefore no other
departmental official or any other person other than the appellant could have done
so. It was equally unclear that because items that should not ha ve been ordered
were ordered, therefore, it could not be those officials in the supply chain
management unit who did or could have done so. The court said that the errors in
the Falaz commitment letter indicated that it was issued by somebody who did not
even know what was required. It then said that the appellant was just a messenger
and, on that basis, concluded that as a messenger who would not have known what
was required, he was the one who forged that commitment letter. In making this
conclusion, the court did not explain, with reference to the evidence, the basis on
which it arrived at the conclusion that it was only the appellant who could have
forged the Falaz commitment letter.
[27] After considering the evidence of Ms Bolo regarding the appellant having said
that he was a legal advisor, assistant to the MEC and a messenger which
inexplicably, the court accepted as having been proved, all of which the court said
were lies by the appellant, the court commented that after those lies were told fraud
was committed. It approached that specific issue on the basis that because the
appellant had lied about his position in the department, therefore, it was the
appellant who forged the Falaz commitment letter. The difficulty with the court’s
conclusion in thi s regard is that even if the appellant lied about those aspects, how
that had anything to do with forging the commitment letter is difficult to understand.
[28] Some of the troubling comments of the court a quo in its judgment do call for
special mention . For example, the court said that a departmental official who was
committing fraud could not have made errors in the commitment letter. It said that a
departmental official would have committed fraud in a proper way which it appeared
to describe it as being the way they normally did things. The basis on which the court
made conclusions about how departmental officials would have issued a fraudulent
commitment letter is difficult to understand. Similarly, how it excluded any and all
other departmental offic ials including those who might have worked in the supply
chain management unit but were not responsible for the issuing and signing of
commitment letters was not explained. This is besides the fact that it was not clear
from the evidence how many officials worked in the supply chain management office
as no clear evidence was led in this regard and whether or not all of them besides
Ms Mgijima, Ms Mtshawulana and Ms Bolo, were familiar with commitment letters.
This is again besides the fact that the court di d not say anything about Mr Nokela
and Mr Matshotyana whom the evidence suggests, were somehow involved in the
workings of that office or at least, had some proximity to it. In making all those
conclusions without any evidential basis, it appears that the court embarked on
untrammelled conjecture.
[29] There is another concerning and inexplicable conclusion by the court a quo. It
was the court’s conclusion that because Ms Bolo was on leave, she could not have
signed the Falaz commitment letter. The basis on which the court excluded the
possibility of Ms Bolo signing the letter before she went on leave was not examined
by the court. There was no evidence of how commitment letters were ordinarily
signed. In other words, it was never explored with witnesses whe ther Ms Bolo only
signed the letters by hand and not electronically which, if she could also sign
electronically, she could have done so wherever she was. Most surprisingly, the
court said that as a matter of law, he who alleges must prove. It then said t hat if one
alleged that A committed an act, one has a duty to prove that. I am not sure what
the court meant by this. I assume that the court understood that in criminal
proceedings an accused person has no duty to prove anything. What was required of
the court was for it to make a proper assessment of all the evidence including
appellant’s version.
[30] This basic principle of our criminal trial jurisprudence has been stated and
restated on numerous occasions by our courts. In Olawale4 the Supreme Court of
Appeal per Mhlantla JA, the approach to the assessment of evidence in a criminal
trial was set out as follows:
“It is a trite principle that in criminal proceedings the prosecution must prove its case
beyond reasonable doubt and that a mere preponderance of probabilities is not
enough. Equally trite is the observation that, in view of this standard of proof in a
criminal case, a court does not have to be convinced that every detail of an
accused’s version is true. If the accused’s version is reasonably possibly true in
substance, the court must decide the matter on the acceptance of that version. Of
course it is permissible to test the accused’s version against the inherent
probabilities. But it cannot be rejected merely because it is improbable; it can only be
rejected on the basis of inherent probabilities if it can be said to be so improbable
that it cannot reasonably possibly be true.
that it cannot reasonably possibly be true.
4 Olawale v S [2010] 1 All SA 451 (SCA) at 455 paras 13-14.
In evaluating the evidence against the appellant, one must look at the reliability and
credibility of the witnesses, consider if any of them had a motive to falsely implicate
the appellant and further look at the probabilities of the State’s version”
[31] There are many other examples of the unfortunate manner in which the
appellant’s trial in this matter was conducted and of the numerous factual
misdirections and inaccurate statements of the law. Some of them make it difficult
not to conclude that the court determined the appellant’s guilt without evaluating all
the evidence and arrive at any conclusion it con sidered appropriate informed by the
evidence. For instance, at some point the court specifically said that there was no
supporting evidence that the signature on the commitment letter was that of Ms Bolo.
The difficulty with this approach is not just that it was a misdirection of law. It is also
the fact that the court seemed to have expected the appellant to prove by way of
evidence that the signature in that document was that of Ms Bolo. In this regard, the
correct approach was whether the State had prove d that it was the appellant who
forged Ms Bolo’s signature. On the contrary, the court approached the issue of the
signature on the commitment letter on the basis that the appellant needed to prove
that he did not forge Ms Bolo’s signature.
[32] Another ar ticulation of this principle was set out earlier by the same court in
Viveiros5 in which Zulman JA said:
“It is trite that there is no obligation upon an accused person, where the State bears
the onus, “to convince the court”. If his version is reasonabl y possibly true he is
entitled to his acquittal even though his explanation is improbable. A court is not
entitled to convict unless it is satisfied not only that the explanation is improbable but
that beyond any reasonable doubt it is false. It is impermi ssible to look at the
probabilities of the case to determine whether the accused’s version is reasonably
probabilities of the case to determine whether the accused’s version is reasonably
possibly true but whether one subjectively believes him is not the test. As pointed out
5 S v Vivieros [2000] 2 All SA 86 (A); 2000(1) SACR 453 (SCA) para 3.
in many judgments of this Court and other courts the test is wh ether there is a
reasonable possibility that the accused’s evidence may be true.”
[33] It was part of Ms Mtshawulana’s evidence that she had been told by Mr
Matshotyana that the appellant would deliver some gloves supplied by AVNG. The
appellant and the AV NG agent indeed delivered them after which she invited him to
her office and handed to him a commitment letters for AVNG. How Ms Mtshawulana
would give the AVNG commitment letter to the appellant in the presence of the
AVNG agent flew in the face of her ow n evidence that suppliers could fetch their
commitment letters. The other matter of concern is Mr Matshotyana’s role in the
general procurement processes of the department. The evidence established that he
was one of the employees of the department and see mingly dealt with the supply
chain management office. The evidence of Ms Bolo was also that she saw the Falaz
commitment letter for the first time after it was sent to her by Mr Matshotyana. It was
unclear how Mr Matshotyana got to be in possession of the said commitment letter
as he was never called by the State to testify. Another person whose role in the
procurement office remained mysterious was Mr Nokela who seemed to be lingering
around the procurement office with no clarity as to his presence or role in that office.
I mention these officials not to suggest that they were somehow implicated in the
forgery but to show that the appellant was not the only one might not have known the
finer details of issuing commitment letters. Ms Bolo’s evidence that she did not
immediately question the authenticity of what looked like her signature in the Falaz
commitment letter when it was sent to her by Mr Matshotyana for the reason that she
did not know whom to trust is not without significance. None of this evidence was
considered by the court a quo.
The admission of Sefalafala’s affidavit.
[34] In dealing with Sefalafala’s affidavit in its judgment, the court a quo merely
indicated that it had ruled it admissible in terms of section 3(1)(c) of the Law of
Evidence A mendment Act 45 1988. It did not explain its reasoning in admitting
Sefalafala’s affidavit beyond saying that it did so in the interests of justice. What the
interests of justice required on the facts of this case was not explained. Section
3(1)(c) of this Act has no less than seven considerations that must be taken into
account in deciding whether or not in a specific case hearsay evidence should be
admitted in the interests of justice. The court made no analysis of the factors on
which it based its decisi on to admit that affidavit in relation to the provisions of
section 3(1)(c) 6. This is as concerning as the court a quo ’s approach to
contradictions between Sefalafala’s affidavit and the appellant’s evidence. The court
appeared to have overlooked the fact that Sefalafala’s affidavit was tendered by the
State to prove that the appellant was implicated in the offences. To criticise the
appellant for inconsistences between the evidence of the State and the version of
the appellant in the manner it did is mind boggling to say the least.
[35] There is another matter of serious, if not grave concern in how the court a quo
dealt with the affidavit of Sefalafala. It is that the court allowed a situation in which
even the person who took the affidavit was not called by the prosecutor and no
explanation was proffered as to this egregious disregard of one of the well -known
principles of admission of documents especially in a criminal trial. In other words, not
only was Sefalafala’s evidence accepted in the form of an affidavit, even the affidavit
itself was simply handed up from the bar to be part of the record. The police offic er
who saw and spoke with Sefalafala and obtained his evidence in the form of an
affidavit was not called to testify. It was incumbent upon the prosecutor to call this
affidavit was not called to testify. It was incumbent upon the prosecutor to call this
6 Mawanda Makhala and Another v Director of Public Prosecutions, Western Cape 2025 (1) SACR 275 (CC).
person to confirm to the court that he saw Sefalafala and personally interviewed him
and took his affidavit from him. He would also have testified about where he took it,
when this happened and most importantly, confirm if the signature thereon was that
of Sefalafala. In this regard the court not only had a right but also a duty to raise this
issue with the prosecutor as soon as it realised that an impermissible procedure to
admit this crucial piece of evidence into the record was being embarked upon.
[36] That Sefalafala’s affidavit was central, if not key to the court a quo’s conviction
of the appellant and occupied its mind throughout is also bolstered by its reference to
it both in its judgment convicting the appellant and also in its judgment on the
sentence imposed. In sentencing the appellant, the court, inter alia , said the
following:
“Even when the evidence was very strong against him, for example, an affidavit from
Falaz put in, which said it was the accused who was negotiating this deal. In my
view, one would have changed his plea to guilty at that stage, not to go further and
deny the obvious, deny the obvious – waste the time of the Court. It comes to mind
that the contents of that affidavit which directly implicates the accused, were not at all
challenged.”
The fact that the hearsay evidence of Sefalafala was irregularly, and impr operly
entered into the record, even if it could have somehow been admitted, must lead to
the ineluctable conclusion that the evidence on which the appellant was convicted
and sentenced was, at best, sullied.
Inferential reasoning.
[37] It is clear from th e record that the court embarked on wide scale speculation to
fill the gaping holes in the evidence tendered by the State. For instance, it said that it
came out clearly that appellant requested Khato Mbodi to approach Falaz for a
tender. The factual basis for this conclusion was not set out by the court a quo in its
judgment save for what Sefalafala said about him in his affidavit. The court went on
to say that Falaz furnished Khato with its particulars which Khato must have handed
them to the appellant. It then inferred from its own speculation that the appellant
must have completed or written the commitment letter. As a matter of law, inferential
reasoning cannot be based on speculation. It must be based on solid factual
foundation. That this is so was e loquently explained by the full court of this Division
recently in Tom7 as follows:
“The principles in relation to inferential reasoning are well established. The standard
of proof beyond reasonable doubt in criminal proceedings requires the application o f,
what the court in the oft -quoted case of R v Blom (Blom) referred to, as the two
“cardinal rules of logic”:
‘In reasoning by inference there are two cardinal orders of logic which
cannot be ignored:
(1) The inference sought to be drawn must be consisten t which all the
proved facts. If it is not, the inference cannot be drawn.
(2) The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they do not
exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct.’
Some of the key principles underlying the test in Blom, as amplified in R v De Villiers
are the following: the facts from which the prosecution seeks to draw the inference of
guilt must not also be reasonably consistent with a hypothesis other than the one
relied upon, in other words, the inference of guilt must be the only reasonable
inference; there must be some evidential foundation to support the inference to be
drawn, and spec ulation, conjecture or a bare possibility will not be sufficient, as the
inferential conclusion sought to be drawn is determined against the strength of the
inferential conclusion sought to be drawn is determined against the strength of the
factual premise provided by the context of the facts of the case, all of the
circumstances establis hed by the evidence must be considered and weighed in
7 Tom v S 2023 (2) SACR 283 (ECMk) paras 10-11.
deciding whether the inference is consistent with the proved facts. The evidence
must be considered as a whole, and not by a piece -meal approach and, following
from the fact that the burden of proof res ts on the State throughout criminal
proceedings to prove the guilt of the accused beyond reasonable doubt, the accused
person is not required to establish that some other inference should be drawn, or to
prove particular facts which are to support such other inference.”
[38] The court a quo was either not aware of these time honoured principles, or it did
not truly understand their implications and therefore applied them incorrectly which
led to the serious misdirections that are evident from the record. Wh ere the analysis
of the evidence should have begun, the court went straight to the conclusion of guilt
after making transient references to what it called, “ facts not speculation ”. As
explained quite succinctly, in Tom, this is as impermissible as is the shifting of the
burden of proof from the State to the appellant. While the court a quo made
references to inferential reasoning, the established facts on which it drew its
inferences were not explained as a result of wh ich one cannot tell from the judgment
which facts the court found to be established on which it then drew its inferences.
This is hardly surprising as it never really considered and properly analysed the
appellant’s evidence which it was obliged to do, nor did it consider internal
contradictions in the evidence of the State about which it could have made whatever
conclusions as to their impact. It could only have rejected appellant’s evidence after
considering it and making whatever conclusions about it, bu t ignoring appellant’s
evidence was not an option.
[39] In light of the fact that the court expressed itself as it did regarding Sefalafala’s
affidavit referred to earlier, the unavoidable question is whether it was still able to
consider the evidence of t he appellant objectively and with an open mind when it
consider the evidence of t he appellant objectively and with an open mind when it
already considered him guilty as soon as it received Sefalafala’s affidavit. It is not
unreasonable in the circumstances to conclude that the court’s impatience and
hostility to the appellant’s attorne y and its downright obstruction when the
investigating officer was being questioned by the appellant’s attorney regarding the
signature on the commitment letter, was because it had already made up its mind
about his guilt. This trial was characterised by a plethora of unfortunate misdirections
both on facts and the law, procedural errors and an egregious disregard for
procedural fairness. This case typified how a criminal trial should not be conducted
and all of these misdirections cumulatively led to the a ppellant not receiving a fair
trial. Some of the court a quo’s utterances to and about the appellant’s attorney were
uncalled for and clearly did not inspire confidence in our criminal justice system.
Courts must always exercise patience in conducting tria ls and allow an accused
person enough berth to exercise his right to challenge the evidence of the State and
to adduce evidence to disprove the case of the State against him. Openly leaning in
favour of the State even in cases that could be regarded as ope n and shut is simply
impermissible as even in those cases an accused person is still entitled like any
other accused person, to challenge the evidence presented against him even if in
doing so he would appear to be wasting the court’s time.
The constitutional right to a fair trial.
[40] Not so long ago, the Constitutional Court in Kapa8 explained the right to a fair
trial and its centrality to the confidence of the public in the criminal justice system as
follows:
“[26] The right to a fair trial enshrined in section 35(3) of the Constitution
encompasses various fundamental rights, including the right to remain silent,
8 Kapa v S 2023 (4) BCLR 370 (CC); 2023 (1) SACR 583 (CC) paras 26 -28.
and to adduce and challenge evidence. In Molimi, this Court described the right
to a fair trial as follows:
‘[T]he right to a fair trial … ‘has to instil confidence in the criminal justice
system with the public, including those close to the accused, as well as those
distressed by the audacity and horror of crime’ …. More importantly,
proceedings in which little or no respect is acco rded to the fair trial rights of
the accused have the potential to undermine the fundamental adversarial
nature of judicial proceedings and may threaten their legitimacy.’
[27] Although the concept of a fair trial is a cornerstone of our criminal law
jurisprudence, not every minor irregularity vitiates the right to a fair trial. In
Zuma, this Court expressed itself as follows on the nature of the irregularities
that render a trial unfair:
‘The right to a fair trial … embraces a concept of substantive fairness which is
not equated with what might have passed muster in our criminal courts before
the Constitution came into force. In S v Rudman; S v Mthwana 1992 (1) SA
343 (A), the Appellate Division, while not decrying the importance of fairness
in criminal proceedings, held that the function of a court of criminal appeal in
South Africa was to enquire -
‘whether there has been an irregularity or illegality, that is a departure from
the formalities, rules and principles of procedure according to which our law
requires a criminal trial to be initiated or conducted … [A court of appeal]
does not enquire whether the trial was fair in accordance with “notions of
basic fairness and justice”, or with the “ideas underlying the concept of justice
which are the basis of all civilised systems of criminal administration”.’
That was an authoritative statement of the law before 27 th of April 1994. Since that
date, section 25(3) has required criminal trials to be conducted in accordance with
those ‘notions of basic fairness and justice’. It is now for all courts hearing criminal
those ‘notions of basic fairness and justice’. It is now for all courts hearing criminal
trials or criminal appeals to give content to those notions.”
[41] As earlier indicated, the court a quo clearly ignored all these principles which
underly the notions of basic fairness and justice w hich are entrenched in our
constitutional order. In addition to that, the court disregarded a key aspect of our
criminal trial architecture which is the onus of proof in a criminal trial. The court
approached the evidence of the appellant on the basis that he had to prove his
innocence. This is patently incorrect as an accused person bears no such onus
which rests solely with the State. Furthermore, even the suspicious aspects of the
appellant’s conduct which were disconcerting, were in themselves not enoug h to
reach the conclusion of guilt, with the State still being required to do more to prove
the guilt of the appellant beyond reasonable doubt which it lamentably failed to do.
Conclusion.
[42] In essence, the appellant was charged with the forgery of the signature of Ms
Bolo and fraud. Nowhere did the court make a clear finding, with reference to
evidence that the appellant forged Ms Bolo’s signature and the basis for that
conclusion. In any event, it could not have done so as there was no way of
conclusively determining if that signature was not truly that of Ms Bolo as that
signature was never subjected to forensic analysis. No objective evidence was
presented to the court to establish that the signature on that commitment letter was
forged and that it w as the appellant who committed that forgery as the prosecutor
inexplicably chose not to pursue that aspect through the forensic analysis of that
signature, an area of expertise that is readily available within the State machinery.
[43] It was on the basi s of the numerous misdirections of facts and law, and the
procedural misdirections evident from the record that this Court came to the
conclusion that it did. In essence, we concluded that there was a complete failure of
justice on many fronts and at numer ous angles resulting in the conviction of the
appellant being unsustainable, unjust and therefore indefensible, a concession which
counsel for the State also correctly made during the hearing of this appeal.
The result.
[44] In the result, on 5 September 2025 the following order was issued:
1. The late prosecution of the appeal is condoned.
2. The late filing of the respondent’s heads of argument is condoned.
3. The appeal is upheld, and the conviction and sentence of the appellant is set
aside.
4. It is ordered that the appellant must be released from custody at the Wellington
Correctional Centre forthwith.
______________________
M.S. JOLWANA
JUDGE OF THE HIGH COURT
I agree:
______________________
M. MHAMBI
JUDGE OF THE HIGH COURT (ACTING)
Appearances:
Counsel for the applicant : S.X. Mapoma
Instructed by : Makangela Mtungani Inc.
Mthatha
Counsel for the respondent : M.B. RANGULA
DPP
Mthatha
Date heard : 05 September 2025
Date delivered : 02 December 2025