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
MPUMALANGA DIVISION MBOMBELA (MAIN SEAT)
CASE NO: A39/2025
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE 29/5/2026
SIGNATURE
In the matter between:
JACOB ZENEZELE MNCWANGO APPLICANT
and
THE STATE RESPONDENT
This judgment was handed down electronically , circulated to the parties and their legal
representatives by email. The date and time for the hand -down of the judgment is deeme d to
be 29 May 2026 at 10h00.
JUDGMENT
2
Vukeya J, Venter AJ (Concurring)
[1] This is an appeal against the conviction and sentences imposed on the appellant
by the Regional Magistrate, Mbombela on 20 January 2023. The appellant was
charged, together with two others, with Fraud, alternatively Theft, and two counts of
Money Laundering. The appellant was convicted of Theft and Money Laundering and
sentenced to ten (10) years imprisonment, of which three (3) years imprisonment was
suspended on certain conditions. He was also sentenced to three (3) years
imprisonment for Money Laundering. It was ordered in terms of section 280 (2) of the
Criminal Procedure Act 51 of 1977 (“CPA”) 1 that these sentences were to be served
concurrently.
[2] The appellant brings an appeal against the conviction and sentence having been
granted leave to appeal against both the conviction and the sentence by the Court a
quo.
[3] It was alleged by the respondent that during 2012, the appellant and others
falsely and with a common intent to defraud, misrepresented to the Department of
Rural Development and Land Affairs, Mpumalanga (“DRDLA”) that they had
rendered services to the benefit of the Endloveni Community. They presented a
Memorandum, Resolutions, and an Invoice to DRDLA pretending that these were
prepared by the Endloveni Community Project Association (“ECPA ”), responsible for
community projects and services for the Endloveni Community.
[4] It was also alleged that the accused misrepresented to DRDLA that services at
the Endloveni Community were rendered by Sadia Enterprises Trading CC (“Sadia”)
1 280. Cumulative or concurrent sentences, reads.—
(1)…
(2) Such punishments, when consisting of imprisonment, shall commence the one after the expiration, setting aside or remissi on of the other, in such order as
the court may direct, unless the court directs that such sentences of imprisonment shall run concurrently.
3
for the infrastructural development of Endloveni Portion 2 and 29 of Hermansburg
450JT, whereas in fact and in truth no services were rendered by Sadia or any of the
companies or close corporations alleged to be subcontracted under Sadia, namely, JM
Mncwango Trading CC (“the CC”). It was further alleged that an amount of R2.95
million was paid into the bank account of Sadia, a company whose Director was Ms
Thandi Mildred Mndawe (“Thandi Mn dawe”). The amount deposited into Sadia by
the DRDLA was, according to the allegations, distributed into other bank accounts,
including the bank account of the CC.
[5] Evidence led at the trial in the court a quo is summarised hereunder as follows.
Mr Esau Nkosi, a member of ECPA, testified that he only knew accused 3 as a mentor
appointed by the DRDLA. The ECPA , representing the community of Endlov eni for
Community development, qualified for a grant of R2.95 million. When the amount
was not received by the ECPA, Mr Esau Nkosi approached Mr Alex Sam Nkosi
(“Alex Nkosi”), the Department’s Chief Director, to inquire as to its payment . It was
discovered that the amount was paid to Sadia, as consented to by Thandi Mndawe. Mr
Esau Nkosi did not know the appellant, who was the first accused in the Regional
Court proceedings. He testified that he had never dealt with the appellant.
[6] Alex Nkosi, the Chief Director: Restitution Unit in the DRDLA , confirmed in
evidence that the ECPA was entitled to a grant of R2.95 million authorised between
2007 and 2008. That amount, according to Alex Nkosi, was paid to the service
provider for services believed to have been rendered. He became aware that the ECPA
had not received the funds when he received a complaint from the community
representatives of Endlov eni that the funds had not been paid over. Alex Nkosi then
held a meeting with Thandi Mndawe , and she informed him that indeed the money
was paid to a service provider who would render service s, and yet l ater it transpired
was paid to a service provider who would render service s, and yet l ater it transpired
that the services had not been rendered. Alex Nkosi confirmed that there was no
relationship between the DRDLA and Mncwango, the appellant, and stated that no
money was paid to the appellant by the DRDLA.
4
[7] Sergeant NR Bhiya (Sgt Bhiya), the Investigating Officer in the case, dealt with
the complaint regarding the R2.95 million missing from the DRDLA, which was
intended for the Endloveni Community's development . He first interviewed Thandi
Mndawe, and she confirmed that the amount was deposited by her into a bank account
of the CC’s, a subcontractor of Sadia. He told the court that he obtained from the Bank
an affidavit deposed to in terms of section 236 of the CPA, after which he was able to
obtain the bank statements of both Sadia and the CC.2 These statements were handed
up and accepted as evidence in the trial under exhibits “F” and “G”. He conceded
during cross-examination that the names appearing in the FNB account and the names
of the appellant were not the same and that the funds were received by the CC and not
the appellant in his personal capacity.
[8] Sgt Bhiya further conceded that the CC should have been charged and not the
appellant. He further stated that the appellant had admitted that he was the sole
member of the CC. Two bank statements were admitted into the record through this
witness, and in terms of a section 236 affidavit from an employee of the bank, namely,
a bank statement from an FNB account held by Sadia and a Standard Bank (“Std
Bank”) account in the name of the CC. Sgt Bhiya provided evidence that Thandi
Mndawe gave him a document , “an appointment letter” , appointing the CC as a
contractor to handle the construction at Endloveni.
[9] According to Sgt Bhiya’s analysis of Sadia's FNB bank statement , an amount
of R2 950 000. 00 was deposited into this account by the DRDLA on 14 March 2012.
The documents, according to Sgt Bhiya, revealed that Grace Makoka, who was
accused 2 at the time of trial, was given signing powers over the account of the CC
2 Section 236 Proof of entries in accounting records and documentation of banks reads—
2 Section 236 Proof of entries in accounting records and documentation of banks reads—
(1) The entries in the accounting records of a bank, and any document which is in the possession of any bank and which refers to the said entries or to any
business transaction of the bank, shall, upon the mere production at criminal proceedings of a document purporting to be an a ffidavit made by any person who
in that affidavit alleges-
(a) that he is in the service of the bank in question;
(b) that such accounting records or document is or has been the ordinary records or document of such bank;
(c) that the said entries have been made in the usual and ordinary course of the business of such bank or the said document has been compiled,
printed or obtained in the usual and ordinary course of the business of such bank; and
(d) that such accounting records or document is in the custody or under the control of such bank, be prima facie proof at such proceedings of the
matters, transactions and accounts recorded in such accounting records or document.” (Footnotes omitted.)
5
(Std Bank Account No: 3[...]) on 15 March 2012, which was one day after the money
was deposited into Sadia’s FNB Bank account by the DRDLA.
[10] Sgt Bhiya also testified that an amount of R1 000 000. 00 was transferred to the
Std Bank account of the CC from Sadia’s FNB account on 16 March 2012. Another
amount of R1 000 000. 00 was transferred to the CC’s Std Bank account on 17 March
2012. Again R300 000. 00 was transferred into the CC’s account on 23 March 2012.
From the reconstructed record of the cross-examination of Sgt Bhiya, it transpired that
Sgt Bhiya confirmed that the bank statement did not reflect the names of the appellant
and that the money was actually received by the Close Corporation, JM Mncwango
Trading CC.
[11] Sgt Bhiya also conceded that no money was paid from the account of the CC
into the personal account of the appellant. Although the witness conceded that the CC
should have been charged separately, he stated that the appellant had told him that he
was the sole member of the CC. When it was put to the witness that the appellant
would deny receiving payments from the DRDLA, the witness told the court that the
amount was paid into an account over which the appellant had signing powers.
[12] Mr Clement Mndawe Maseko’s evidence was that as the Project Co -Ordinator
for the DRDLA, he conducted an inspection on the delivery of services by Sadia to the
Endloveni Community on instructions of the Chief Director. He discovered that no
services were rendered by Sadia Enterprises Trading CC as per their quotation. He
then compiled a report and furnished it to Alex Nkosi as requested.
[13] Thandi Mndawe, became a witness for the state after a guilty plea and
sentence. She had been arraigned with the appellant and his co -accused on similar
charges. At the time of the commission of the offence, this witness’ company, Sadia
Enterprises Trading CC, had been appointed as the service provider of the DRDLA.
Enterprises Trading CC, had been appointed as the service provider of the DRDLA.
This came as an arrangement with Grace Makoka who was working for the DRDLA.
Thandi Mndawe had to render certain services for the benefit of the Endlov eni
6
Community and received an amount of R2 950 000. 00 for this purpose. She testified
that after the payment was made by the DRDLA, she then had a meeting with Grace
Makoka, who told her that the CC would be responsible for th ose services as a
subcontractor. Makoka further told her to deposit an amount of R2 300 000. 00 into a
Std Bank account held by the CC.
[14] Her evidence was that she made a payment of R2.3 million into the bank
account of the CC as she had been informed that the CC would be the sub -contractor.
In her evidence, Thandi Mndawe confirmed the details of her company, Sadia, and the
transactions in which she transferred a total of R2 300 000. 00 into the bank account
of the CC. A letter of appointment was also produced in evidence , and Ms Thandi
Mndawe told the court that the letter of appointment was issued in fav our of the CC
for the services to be rendered at Endloveni Community.
[15] She testified that she did not know the appellant before her arrest and that the
appellant never attended any meetings with DRDLA in relation to projects meant for
the Endloveni Community.
[16] At the close of the state’s case, the appellant elected to close his case without
giving evidence, after which a conviction followed as aforementioned.
[17] Aggrieved by the conviction and the sentence imposed on him by the Regional
Magistrate, the appellant noted an appeal against both the conviction and the sentence
and contended that:
17.1. The court acted irregularly as there was no finding on the main count of
fraud nor on count 2 of money laundering against the appellant, while he
pleaded “Not-Guilty” on both counts.
17.2. In finding that the state did prove the elements of theft beyond a
reasonable doubt , whereas the elements of unlawful consciousness,
wrongfulness, and appropriation had not been proved. The Magistrate
7
should not have found that the appellant was aware of the
misappropriation and/or the origin of the money.
17.3 The Magistrate also erred in finding that the appellant acted in
furtherance of a common purpose with his co -accused and that it was
impossible that the appellant did not know about the activities of JM
Mcwango Trading CC as its sole member and a signatory to its bank
account. According to the appellant , the Magistrate ought to have found
that the evidence led about JM Mncwango Trading CC was inadmissible
and ought not to have found that it was improbable that payments were
not known to the appellant.
17.4. Admitting exhibits F and G1 to 4 as a section 236 statement entitling the
state to hand in exhibit G1 to 4 was irregular, and it did not comply with
the Criminal Procedure Act nor with the prescripts of Government
Gazette 3619 of 21 July 1972.
17.5. By convicting the appellant for actions of a legal person , while there is
no evidence that the appellant was personally involved in the deposits ,
these were transfers from the legal person's business account, whereas
the appellant was charged in his personal capacity.
[18] The main contentious issue in this appeal is the question of whether the court
was correct in accepting exhibits “F” and “G” as prima facie proof of the allegations
in terms of section 236 of the CPA. It was argued on behalf of the appellant that the
section 236 affidavit did not meet the requirements of an affidavit , and therefore
admitting exhibits F and G1 to 4 as the statement , which is a section 236 certificate
entitling the state to hand -in exhibit G1 to 4 , was irregular and didn't comply with the
CPA nor with the Regulations Governing the Administration of an Oath or
Affirmation (“the Regulations”).3
[19] Section 236 deals with the admission of evidence which may be presented to
the court as proof of entries in accounting records and documentation of banks. It
the court as proof of entries in accounting records and documentation of banks. It
3 Prescribed by the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act 16 of 1963), published under GNR1258 of 21 July 1972.
8
provides that the entries in the accounting records of a bank, and any document which
is in the possession of any bank which refers to the said entries or to any business
transaction of the bank, shall, upon its mere production at criminal proceedings of a
document purporting to be an affidavit made by any person, be prima facie proof at
such proceedings of the matters, transactions and accounts recorded in such
accounting records or document.4
[20] The person deposing to the affidavit must allege in the affidavit that he or she
is in the service of the bank in question; that such accounting records or document is
or has been the ordinary records or document of such bank; that the said entries have
been made in the usual and ordinary course of the business of such bank or the said
document has been compiled, printed or obtained in the usual and ordinary course of
the business of such bank. The deponent must further allege that such accounting
records or document is in the custody or under the control of such bank.5
[21] Statements that do not comply with legislation and its scheme of regulations
may be found to be defective to the extent that no reliance can be placed on them for
purposes of section 236. The purpose of section 236 is to shorten the proceedings as it
removes the need to call bank officials to hand in documents which should , in most
cases, not even be in dispute, in a criminal trial.
[22] Exhibit “F” is a statement in terms of section 236 (1) and (2) of the CPA
deposed to by Brenda Mitchell (“Ms Mitchell”). On the face of it, the statement meets
the requirements of a section 236 statement. In this statement, Ms Mitchell alleges that
she is in the service of Std Bank; that such accounting records are the ordinary records
and documents of St d Bank; that the entries on the bank statements and in the
accounting records have been made and compiled, printed or obtained in the usual and
accounting records have been made and compiled, printed or obtained in the usual and
ordinary course of the business of St d Bank; and that the bank statements, accounting
records and documents have been in the custody or under the control of Std Bank.
4 Section 236 of the CPA.
5 Ibidem.
9
Although section 236 permits the admission of this type of evidence, it remains
hearsay evidence if the deponent does not give viva voce evidence of the facts
contained in the statement.
[23] Section 3(4) of the Law of Evidence Amendment Act 45 of 1988 (“the
Evidence Amendment Act”) defines hearsay evidence as “evidence, whether oral or in
writing, the probative value of which depends upon the credibility of any person other
than the person giving such evidence .” This definition focuses on the declarant to
determine whether the evidence is hearsay evidence. Undoubtedly, a section 236
statement is hearsay evidence if the person upon whose credibility the probative value
of the evidence depends, is not called to testify a t trial. Despite the fact that our
hearsay law has been liberated by section 3 of the Evidence Amendment Act, section
236 is still a useful tool in dealing with the production of hearsay evidence as it
elevates these types of documentary evidence to the status of prima facie proof, upon
their mere production.
[24] Strict compliance with the requirements of section 236 is, however, necessary
because this section constitutes a departure from the common law and allows hearsay
evidence to be admitted upon the mere production of a document in a trial where ,
normally, the person who presents the evidence should be the person upon whom the
probative value of the evidence depends. However, under section 236, if the statement
is an affidavit, its mere production makes it admissible. This statement is therefore
supposed to meet the requirements of an affidavit.
[25] A simple definition of an affidavit is that “it is a written declaration or
statement sworn to or affirmed before a person who has authority to administer an
oath, namely, a commissioner of oaths”. The Regulations ( supra) prescribe how a
Commissioner of Oaths should administer an oath. Regulations 3 and 4 read thus:
“3. (1) The deponent shall sign the declaration in the presence of the
“3. (1) The deponent shall sign the declaration in the presence of the
commissioner of oaths.
10
(2) If the deponent cannot write he shall, in the presence of the commissioner
of oaths affix his mark at the foot of the declaration: Provided that if the
commissioner of oaths has any doubt as to the deponent's inability to write he
shall require such inability to be certified at the foot of the declaration by
some other trustworthy person.
4. (1) Below the deponent’s signature or mark the commissioner of oaths shall
certify that the deponent has acknowledged that he knows and understands the
contents of the declaration and he shall state the manner, place and date of
taking the declaration.
(2) The commissioner of oaths shall—
(a) sign the declaration and print his full name and business address
below his signature; and
(b) state his designation and the area for which he holds his
appointment or the office held by him if he holds his appointment ex
officio.” [my underlining]
[26] It was argued at the hearing of this appeal that there was no substantial
compliance with the requirements of the above regulations and that the effect of this is
that there was no affidavit in terms of section 236. Noticeably, Ms Mitchell signed the
declaration, but the Commissioner of Oaths (“the Commissioner”) did not state
whether the person taking the oath was male or female. He also did not state, 1) the
date on which the oath was administered, 2) his full name as the Commissioner or at
least, 3) an official date stamp to confirm that he was a member of the South African
Police Service.
[27] The argument was that this non -compliance left the state with evidence under
exhibits “G1 - G4,” which should not have been admitted, as it remained inadmissible
hearsay. Exhibits G1 - G4 are the documents on which the state based its case against
the appellant. These documents were introduced into the record through the evidence
of S gt Bhiya, who was evidently the Investigating Officer of the case and the
Commissioner for the Section 236 statement. The appellant also took issue with this
Commissioner for the Section 236 statement. The appellant also took issue with this
and contended that Sgt Bhiya not only t ook part in the commissioning of the section
11
236 statement but also presented evidence at the trial as the main witness who
investigated the case and collected evidence. It was submitted on behalf of the
appellant that he had an interest in getting a conviction and thus should not have acted
as a Commissioner.
[28] It has been held in Lohrman v Vaal Ontwikkelingsmaatskappy6 that, provided it
appears with reasonable clarity how a declaration was stated to be the truth, namely
either on oath or affirmation, the relevant part of the Regulations governing the
attestation of affidavits is thereby complied with. It was stated, further, that the court
enjoys a discretion in this regard.
[29] Surrounding the section 236 affidavit are three issues which this court must
deal with in this judgment. Firstly, the question whether the statement of Ms Mitchell
(“Exh F”) meets the prerequisites of an affidavit and secondly, whether Sgt Bhiya who
was the Commissioner who and also tendered evidence relating to the section 236
statement, had an interest in the matter and thirdly, whether Sgt Bhiya could give
evidence in relation to the facts contained in the statement.
[30] In dealing with the question whether Ms Mitchel l’s statement meets the
requirements of an affidavit, the starting point is the question whether there was
substantial compliance with the requirements of Regulation 7 when her affidavit was
obtained. Firstly, the declaration was signed by Ms Mitchell, but the Commissioner
did not indicate whether the person taking the oath was male or female.
[31] Although the Court in Absa Bank Ltd v Botha, N.O and Others 7 dealt with a
situation where the deponent, who was a female person, was referred to as “he”, it
remarked as follows:
“Thus, if the deponent is a female, the commissioner of oaths would be
required to use the pronoun “she”, and if the deponent is a male, the
6 Lohrman v Vaal Ontwikkelingsmaatskappy (Edms) Bpk 1979 (3) SA 391 (T) at 395.
6 Lohrman v Vaal Ontwikkelingsmaatskappy (Edms) Bpk 1979 (3) SA 391 (T) at 395.
7 Absa Bank Ltd v Botha NO and Others (39228/12) [2013] ZAGPPHC 163; 2013 (5) SA 563 (GNP) (7 June 2013) at para 10.
12
commissioner of oaths would be required to use the pronoun “he”. In a case,
such as this, where the commissioner of oaths certifies that the deponent has
acknowledged that “he” knows and understands the contents of the
declaration, but from the declaration itself it is apparent that the deponent is a
female, because she declares as much, then the Court would be unable to place
reliance on the certification of the commissioner of oaths because ex facie the
affidavit it would be unclear whether the deponent is a male or a female.
Hence, the Court would be unable give effect to the “presumption of
regularity” for purposes of assuming that the declaration was sworn to (or
affirmed) and signed in the presence of the commissioner of oaths.” [my
underlining]
[32] Similarly, in a situation where the Commissioner has failed to indicate whether
the person making the declaration is male or female, it becomes difficult to conclude
that such person swore to the declaration in the presence of the Commissioner . It is
also difficult to conclude whether the statement was obtained legitimately, as it does
not display the date on which the oath was administered. Sgt Bhiya also failed to
include his full name as the Commissioner, nor an official date stamp to confirm the
date, nor the fact that he was in the service of the police.
[33] In this situation, the witness would have to testify under oath as the probative
value of the evidence depended on her. Sgt Bhiya gave evidence and tried to analyse
the bank statements and the other exhibits which were handed up to the court.
[34] An issue was raised on behalf of the appellant during the trial that the
statements and documents relating to section 236 could not be handed up through the
evidence of Sgt Bhiya and that Ms Mitchel l would have to be called to testify as the
probative value of the exhibits depended on her. Considering the defects that existed
in the purported affidavit by Ms Mitchell, even if the court a quo had found that the
in the purported affidavit by Ms Mitchell, even if the court a quo had found that the
statements could not be handed up in terms of section 236, that would not be the end
of the matter. Nothing would have prevented the respondent from calling Ms Mitchell,
as the bank official, or , if no longer available, other bank officials in control of the
13
bank statements, who could testify positively to the bank statements, in evidence for
the State.
[35] In terms of Regulation 7(1), a Commissioner shall not administer an oath or
affirmation relating to a matter in which he has an interest. The appellant referred this
Court to the case of Ludi v Meyer and Others8 to support the submission that the
Investigating Officer was not supposed to act as a Commissioner of Oaths in terms of
this section 236 affidavit because he had an interest in the matter. This submission is,
however, in direct contrast with the view held by Mangena AJ in Ludi v Meyer (supra)
wherein the court stated as follows:
“The regulation provides that a commissioner of oaths shall not administer an
oath or affirmation relating to the matter in which he has an interest. Since Ms
Hendricks is an employee at the Pieter Swanepoel Attorneys, she, so it was
submitted, has an interest in the matter. This cannot be correct. Regulation
7(2) provides that sub -regulation 1 shall not apply to an affidavit or a
declaration mentioned in the schedule. Item 2 of the schedule provides that a
declaration taken by a commissioner of oath who is not an attorney and whose
only interest therein arises out of his employment and in the course of his
duty. Ms Hendricks is not an attorney and commissioned the oath in the course
of the performance of her duties. She has no other interest in the matter other
than the one arising out of her duties on an [sic.] employee.”
[36] Quoted hereunder, is what Wallis JA (Ponnan, Schippers and Hughes JJA and
Kgoele AJA concurring) stated in Kouwenhoven9:
“Commissioners of oaths are persons designated by the Minister of Justice as
such by virtue of their office. The current designation includes no fewer than
77 categories of officers, ranging from members of the National Executive and
a number of persons holding office in the administration of justice (but
curiously not judges, although their secretaries are designated), to the
curiously not judges, although their secretaries are designated), to the
chairperson of management of a children’s home in Pretoria. In terms of s 7 of
the statute all of these are authorised to administer an oath or affirmation or
8 Ludi v Meyer and Others (Reasons) (5356/2023) [2025] ZAMPMBHC 13 (24 January 2025) at para 8.
9 Kouwenhoven v Minister of Police and Others 2022 (1) SACR 164 (SCA) at para 34.
14
take a solemn or attested declaration within the area for which they are a
commissioner. Regulation 7(1) precludes a commissioner from performing
these functions ‘relating to a matter in which they have an interest ’. The
authorities already cited say that this must be a pecuniary interest or an interest
whereby the rights and obligations of the commissioner would be affected ”
[my underlining]
[37] In S v Sihlobo 10 the Court stated that:
“According to Regulation 7(1), a commissioner of oaths is prohibited from
administering an oath or affirmation in which he or she has an interest.
Regulation 7(2) stipulates that the provisions of sub -regulation 1 shall not
apply to an affidavit or a declaration mentioned in the schedule. The schedule
provides that Regulation 7(1) does not apply to any affidavit or declaration
taken by an officer who is in the service of the State, provided: his only
interest in the declaration arises out of the performance of his duties in such
service; the primary interest in the declaration is that of the State. ” [my
emphasis]
[38] Clearly, Sgt Bhiya was an employee of the South African Police Service, and
when he obtained the statement of Ms Mitchell, he was performing his duties. There is
no evidence that he would have experienced either financial gain or financial loss
whether or not he obtained the statement. His only interest in obtaining the statement
arose out of the performance of his duties under the service of the South African
Police Service and not out of any personal interest. The primary interest in obtaining
the statement was that of the State. Regulation 7(1) , therefore, does not find
application in the circumstances under which Sgt Bhiya obtained the section 236
statement from Ms Mitchell.
[39] A Commissioner of an affidavit must not be an “interested party” in the matter.
He cannot give evidence as to the content of the affidavit. All he or she can give
He cannot give evidence as to the content of the affidavit. All he or she can give
evidence on is that a statement was written down (by him or her or someone else), that
10 S v Sihlobo [2004] JOL 12831 (Tk) at para 18.
15
the maker of the statement took an oath that this was a true statement, that such oath
was given before a commissioner of oaths, and that the maker of the statement signed
the document in the presence of the Commissioner. Once there is a written document ,
such as an affidavit , sought to be adduced into evidence, the only evidence which the
Commissioner could give pertains only to the circumstances of the making of the
affidavit and does not go to the content of the affidavit , as the probative value of the
evidence depends on the credibility of another, namely, the signatory/deponent to the
affidavit.
[40] In essence, there was no substantial compliance with the requirements of the
above Regulations and the effect of this is that there was no affidavit in terms of
section 236. In other words, the evidence convicting the appellant of Theft and
Money Laundering was based on hearsay evidence from Sgt Bhiya and documents
that should not have been admitted unless viva voce evidence was led. Therefore , the
appeal stands to be upheld as the evidence relating to the theft is intertwined with the
evidence of money laundering, and the charges were all dependent on the section 236
evidence.
[41] The appellant further contended that the court a quo failed to pronounce the
verdict on the main count of Fraud and on the second count of Money Laundering ; he
argued that on those grounds the convictions ought to be set aside as the court acted
irregularly.
[42] It is a fundamental duty of a presiding officer to deliver a judgment and verdict
on the record. A failure to announce an acquittal is indeed an irregularity. When a
presiding officer fails to pronounce a “not guilty” verdict in open court, the resulting
omission often constitutes a procedural irregularity that may make the proceedings
irregular or invalid, requiring appellate intervention or a correction of the court
record. While a verbal announcement is essential for transparency, if the verdict was
record. While a verbal announcement is essential for transparency, if the verdict was
formally recorded in the case file (minute order or court record), but not spoken, a
higher court can confirm the acquittal based on the record.
16
[43] In Tuta v The State 11 the Constitutional Court was faced with a situation where
an unsigned ex tempore judgment was part of the transcribed record , and that
judgment was ambiguous on the issue of putative self -defence. The ex tempore
judgment differed materially from the signed judgment later provided in that matter,
and it was only in the second judgment that the issue of putative self -defence was
clarified. The Constitutional Court made remarks about patent errors in ex tempore
judgments and the general need for clear reasons to be contained in a judgment. The
Constitutional Court proceeded to state that:
“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.”
[44] The above re-emphasises the rights of an accused person to a fair trial and the
court's duty to give reasons for its judgment and pronounce its verdict with finality to
ensure a fair trial for the accused person.
[45] In casu, the Magistrate convicted the appellant on the alternative charge of
Theft in respect of count 1 of Fraud and was supposed to deliver a verdict of “Not
Guilty” on the Main Count ; she, however, omitted to do so. Furthermore, she
proceeded to hand down a verdict of “Guilty” on count 3, omitting count 2. In respect
of count 1, it is obvious that she would not have convicted the appellant both on the
Main Count and on the alternative , and, therefore, it can be reasonably concluded that
she intended to discharge the appellant on the main count of Fraud.
[46] In respect of count 2, there are no clear reasons relating to whether the
Magistrate intended to convict or to acquit the appellant. However, it can be said that
she erred when she failed to pronounce a verdict for the benefit of the accused.
Because of the findings made in this judgment regarding the documents handed in by
11 Tuta v The State (2024 (1) SACR 242 (CC) at para 62.
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way of section 236, it is prudent to state that this Court is justified in concluding that
the appellant should have been acquitted in respect of count 2.
[47] In the result, I propose that the following order be made:
(1) The appeal in respect of the alternative charge of Theft ( count 1) and
count 3 (Money Laundering) is upheld.
(2) The appellant is found not guilty and discharged on the Main Count
(count 1 of Fraud) and on count 2 of Money Laundering.
_____________________________
L VUKEYA
JUDGE OF THE HIGH COURT
_____________________________
P VENTER
ACTING JUDGE OF THE HIGH COURT
Appearances:
For the Applicant: Adv Du Plessis
Instructed by: Coert Jordaan Attorneys
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For the Respondent: Adv Phatudi
Instructed by: National Prosecuting Authority
Date of Hearing: 14 November 2025
Date of Delivery: 29 May 2026