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[2018] ZASCA 10
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Maqebhula v S (284/2017) [2018] ZASCA 10 (5 March 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 284/2017
In
the matter between
TENGIMPILO
MAQEBHULA
APPLICANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Maqebhula v The State
(284/17)
[2018] ZASCA 010
(5 March 2018)
Coram:
Ponnan, Willis and Mathopo JJA and Davis and Rogers AJJA
Heard
:
16 February 2018
Delivered:
5 March 2018
Summary:
Application for leave to appeal against
dismissal by high court of petition for leave to appeal against
conviction and sentence
by regional court – relevant test
whether applicant has reasonable prospects of success – no such
prospects in present
case.
ORDER
Application
for leave to appeal from:
The
Eastern Cape Division, Grahamstown (Mbenenge J and Bacela J sitting
as court of appeal against a decision of the Port Elizabeth
Regional
Court).
The application is
dismissed.
JUDGMENT
Rogers
AJA (Ponnan, Willis and Mathopo JJA and Davis AJA concurring)
[1]
This is an application for leave to appeal which has been referred to
open court for argument. On 6 February 2014 the applicant
was
convicted in the Port Elizabeth Regional Court on two counts of fraud
and sentenced to a fine of R20 000 or, failing payment,
two
years’ imprisonment, the counts being taken together for
purposes of sentence. The applicant sought leave to appeal against
conviction and sentence which the magistrate refused. A petition to
the court a quo was dismissed. The applicant now applies for
leave to
appeal against the dismissal of the petition.
[2]
The test we must apply is whether the applicant enjoys reasonable
prospects of success, not whether an appeal would succeed.
[3]
At the relevant time the accused, a lieutenant-colonel in the South
African Police Service (SAPS), was the commanding officer
of the
Grahamstown Local Criminal Record Centre (LCRC). The charges of fraud
arose from two trips he undertook in police vehicles,
the first on
Thursday and Friday 24-25 June 2010, the second on Saturday 12
February 2011. The applicant’s superior officer
was Brigadier
Botha. The applicant made the prescribed application to Botha to use
the vehicle for the June 2010 trip. He made
no such application for
the February 2011 trip.
[4]
The first count alleged that during the period 22-25 June 2010 the
applicant unlawfully, falsely and with the intention to defraud,
represented to Botha and/or the SAPS that he had to testify in his
official capacity in a criminal case in Cradock on 24 June 2010;
that, while being under an obligation to do so, omitted to disclose
that he did not attend the criminal case and/or would or did
travel
to certain other towns alleged in the preamble to the charge; and
that, by means of the said misrepresentations, induced
the SAPS –
to its loss and prejudice – to grant him authorisation to use
the vehicle for the purpose stated in the
prescribed application.
[5]
The second count alleged that on or about 12 February 2011 the
applicant unlawfully, falsely and with the intention to defraud,
failed to disclose to Botha and/or the SAPS that he undertook a trip
with an official vehicle under circumstances where he had
a duty to
disclose such fact; and that, by means of the said misrepresentation,
precluded the SAPS – to its loss and prejudice
– from
instituting legal action and/or disciplinary proceedings against him
to recover the wasted funds of the trip.
[6]
I shall deal with the two counts chronologically but mention that the
events relating to the second trip were uncovered first
and prompted
the investigation which uncovered the events relating to the first
trip.
[7]
On 22 June 2010 the applicant applied to use a police vehicle to
travel for official purposes via the shortest route from Grahamstown
to Cradock on 24 June 2010, departing at 07:00 and returning at
17:00. The stated purpose was to attend court as a witness. The
applicant attached to his application a subpoena purporting to show,
by way of a handwritten annotation, that an earlier hearing
to which
he had been subpoenaed had been remanded to 24 June 2010. Botha
approved the application.
[8]
The evidence established that the applicant was subpoenaed to attend
the Cradock case in May 2010. The investigating officer
in the
Cradock case testified that the handwritten date ‘24 June 2010’
was not his and that he had not told the applicant
that the case had
been remanded to that date or that he was required to be present on
that date. On the contrary, the case was
remanded to 13 October 2010.
[9]
The official vehicles are fitted with tracking systems which send SMS
messages to the server every few minutes. This permits
close
monitoring of the vehicle’s location, speed and distanced
travelled. When the discovery of alleged irregularities in
respect of
the second trip led to an investigation of earlier trips, the
tracking report for the vehicle used by the applicant
on the first
trip showed that shortly after 07:00 on 24 June 2010 the applicant
left Grahamstown and travelled on the N2 through
King William’s
Town to East London where he stopped in Church Street at 09:46.
Within East London he travelled between several
addresses and then
headed back on the N2, leaving East London at 12:06 and arriving in
King William’s Town at 13:00. He spent
about fifteen minutes
there before returning to Garcia Street in East London. After
stopping there for a few minutes, he headed
north on the N6 through
Queenstown to Cradock where he arrived at 17:49. He drove to several
locations in Cradock before turning
off the ignition for the night at
20:44. The applicant left Cradock early the next morning, arriving
back in Grahamstown at 07:13.
[10]
It is common cause that the applicant did not testify in Cradock on
24 June 2010 and that the court did not sit at all during
that week.
The applicant’s version was that at the hearing in May the case
was provisionally remanded to 24 June 2010 because
of the accused’s
ill-health and that his arrangement with the prosecutor was that he
would phone the prosecutor (whose name
he could not recall) on 23
June to check whether the case was running. He claimed to have done
so and to have been told that the
case was not proceeding. He
testified that he then phoned Botha to say that although he was no
longer needed as a witness in Cradock,
he still needed to go there to
fetch a docket. Botha, he alleged, gave him the go-ahead.
[11]
The applicant testified that he arranged with his colleague in
Cradock to leave the docket at the police station because he
might
only get there late; and that while in Cradock he went to the charge
office to collect the docket. He said that he also drove
to various
locations in Cradock to trace witnesses in connection with a civil
case where a W/O Senekal was suing him and the state.
(This was not
something he claimed to have mentioned to Botha as a purpose of the
trip.) When asked where he slept in Cradock,
he could not remember.
He confirmed that he had friends in Cradock but could not remember
whether he spent the night with one of
them.
[12]
In regard to his visits to King William’s Town and East London
(which he likewise did not claim to have mentioned to
Botha), his
evidence was that the Grahamstown LCRC needed certain fingerprinting
supplies (ninhydrin and superglue) which, after
phoning around, he
could only source from the LCRC in East London; and that he needed to
deliver various papers to the King William’s
Town police
station.
[13]
The applicant’s version about phoning Botha for an oral
variation first emerged during the applicant’s evidence.
The
State successfully applied to reopen its case to call Botha. The
latter denied having received the alleged call. He testified
that he
would not have authorised a trip for the purposes claimed by the
applicant as there were closer police stations which could
have
supplied the materials and because officers from the Grahamstown LCRC
regularly visited the large LCRC in Port Elizabeth.
[14]
Even on the applicant’s version, he did not have authority to
travel to East London or to extend the trip into a second
day. The
applicant’s actual trip was about three times longer than a
direct journey from Grahamstown to Cradock. In any event,
there is no
prospect that another court will find the applicant’s version
to be reasonably possibly true. Since on his version
he knew on 22
June that the Cradock case might not run on 24 June, it made
absolutely no sense to make the application to Botha
without first
finding out whether the Cradock case was proceeding. He could have
phoned the prosecutor on 21 or 22 June, before
lodging his
application. Furthermore, if – as he claimed – he had
several reasons, and not one, for visiting Cradock,
one would have
expected him to mention the other reasons (fetching the docket;
tracing witnesses) in his application for authority,
particularly
since he knew that his commitment as a witness might fall away.
[15]
The magistrate, who saw and heard the witnesses, believed Botha and
disbelieved the applicant. A reading of the record does
not suggest
any basis on which an appeal court might interfere with this finding.
On the contrary, the applicant was a poor witness.
[16]
His version of the lengthy trip undertaken supposedly to obtain
minuscule supplies of ninhydrin and superglue is ludicrous.
Furthermore, there were material discrepancies between the version
put to the state witness Lt-Col Muller and the version the applicant
subsequently gave. What was put to Muller was that when the applicant
arrived at East London he discovered that his colleague,
W/O Bengo,
could only supply him with the superglue, not the ninhydrin, and that
he thus sourced the ninhydrin from the LCRC in
Queenstown. When he
testified, however, he claimed to have obtained both materials from
Bengo in East London, and that was also
the evidence of Bengo whom
the defence called as a witness. There was, however, a discrepancy
between the applicant’s testimony
and that of Bengo: the
applicant claimed to have taken delivery of the materials in Church
Street near the Oxford Street police
station whereas Bengo alleged
that the hand-over occurred outside the Cambridge police station in
Garcia Street.
[17]
The detailed tracking information is not reconcilable with the
applicant’s account. His version was that the recorded
stopping
of his vehicle in Church Street at 09:46 was the occasion when Bengo
supplied him with the ninhydrin and superglue. Although
the police
station was in Oxford Street, there was, he said, no parking
available there, so his colleague met him briefly in Church
Street.
The tracking report, however, shows that he spent an hour at this
location and the related Google image indicates that
the place where
he stopped in Church Street was some distance from Oxford Street.
[18]
The tracking report also shows that after stopping in Church Street
for an hour, the applicant drove to the Cambridge police
station in
Garcia Street where he spent a further 45 minutes. According to the
applicant, he needed to get crime intelligence there
whereas Bengo
claimed that this was where he met the applicant briefly to hand over
the fingerprinting materials.
[19]
In regard to the papers he supposedly needed to deliver in King
William’s Town, there was no reason for him not to have
delivered them on his way to East London if his version of the reason
for the visit were the truth. It made no sense, on his version,
for
him to drive through King William’s Town to East London and
then back to King William’s Town and then back again
to East
London.
[20]
His version as to what he did in Cradock is also not credible. He
claims to have needed to fetch a docket there. However there
was
unchallenged evidence from the State that according to the tracking
report he did not stop at any Cradock police stations.
[21]
In my view, therefore, the applicant has no prospects of success in
respect of the first count.
[22]
As I have mentioned, the applicant did not seek authority for the
second trip. The circumstances in which it was discovered
are these.
On Friday 11 February 2011 W/O van Staden used the vehicle for
official purposes. When he arrived back in Grahamstown
he filled the
tank and returned the keys and logbook to the applicant. On the
Monday morning Van Staden accompanied W/O de Klerk
on an intended
trip in the same vehicle. When, shortly after leaving the police
yard, De Klerk stopped at a garage to buy petrol,
Van Staden
expressed surprise because he had left the vehicle with a full tank.
They checked the logbook. No weekend trip was reflected
and the
odometer reading purported to show that the vehicle had only
travelled three kilometres since Van Staden parked it on the
Friday.
[23]
When the tracking report for the vehicle was retrieved, it revealed
the following (it is common cause that the applicant was
the driver).
On Saturday 12 February 2011 the applicant departed from Grahamstown
at 11:12. He drove north on the R350 to Bedford,
then east on the R63
through Cookhouse to Somerset East where he stopped for about three
minutes. He then retraced his course on
the R63 through Cookhouse and
Bedford where, instead of turning south onto the R352 back to
Grahamstown, he carried on through
Bedford and Adelaide to Fort
Beaufort where he stopped for a couple of minutes before driving
south on the R67 back to Grahamstown
where he arrived at 15:05. The
total distance covered was 351 km.
[24]
The applicant’s explanation was that he needed to verify the
northern point of a sketch plan at a location just east
of Cookhouse.
Because it was a very busy period, he was unable to get to this
during the week. He drove to Somerset East to buy
something to eat
and drink. In cross-examination it was pointed out to him that the
tracking report did not indicate that the vehicle
had stopped in the
vicinity of Cookhouse after he returned from Somerset East and he was
invited to explain this apparent inconsistency
with his version. His
reply was that he had not switched off the ignition when checking his
sketch plan because it had only taken
a minute or two. By this stage,
I should mention, an expert called by the State had testified that if
the car was stationary with
the engine idling, the tracking report
would not show that the vehicle had stopped unless it was stationary
for two successive
SMS signals. Asked why he had not bought something
to eat in Cookhouse, he said the outlets there were more expensive
than the
Spar at Somerset East.
[25]
The applicant’s explanation for the trip was undoubtedly false;
and if it was false, that could only be because the true
purpose of
the trip was unrelated to police business. On the applicant’s
version, he travelled an extra 50 km (25 km each
way) just to buy
some takeaway food and drink at a supposedly cheaper price. This is
an absurd story. And why would the applicant
not have switched off
the ignition when finalising his sketch plan, even if he only needed
a few minutes? His version was plainly
tailored to meet the problem
raised by the tracking report.
[26]
Even so, his version fell far short of meeting the difficulties
created by the tracking report. The version put to the State
witnesses was that to reach the location of the sketch plan he had
needed to travel about ten minutes on a dirt road off the R63.
The
tracking report showed no such deviation. The SMS signals were
generally only one or two minutes apart (the longest interval
was
three minutes) and showed the vehicle at all times on the R63. The
tracking report recorded that he was driving at an average
speed of
around 120 km/h when returning from Somerset East to Cookhouse and
that this leg of the trip took 13 minutes. The distance
between
Somerset East and Cookhouse is about 25 km, which, at a speed of
around 120 km/h, would take 12½ minutes. This shows
that he
did not stop at all between Somerset East and Cookhouse.
[27]
The applicant’s counsel submitted that her client in his
evidence had not been sure whether he had checked the sketch
plan
before or after stopping at Somerset East. If he had stopped to check
the plan before rather than afterwards, this would account
– so
the argument went – for the fact that his trip from Cookhouse
to Somerset East took 20 minutes as opposed to the
12½
minutes which the return trip took. This argument, however, is
incompatible with the tracking report. Although
the applicant only
turned off the ignition in Somerset East 20 minutes after leaving
Cookhouse, he arrived in Somerset East within
11 minutes and then
spent another 9 minutes driving around the town at a slow speed,
consistent with someone looking for an address.
He certainly could
not have spent any time deviating to a location near Cookhouse. Apart
from the matter of timing, the tracking
report does not show that he
turned off the R63 on his way to Somerset East.
[28]
The applicant also ran into difficulty when confronted with the two
case numbers he specified in his exculpatory statement
as being the
case numbers to which the sketch plan related. One was a Cookhouse
case, the other a Somerset East case. He wrote
the statement by hand
and gave it to a secretary to type. The Cookhouse case mentioned by
him was a murder case where the accused
was sentenced on 21 January
2010, ie before the applicant’s trip. The Somerset East case
was a business robbery. The applicant
claimed that the typist had
made a mistake with the Somerset East case and that the correct case
was actually another Cookhouse
case. The notion that the secretary
mis-typed ‘Somerset East’ where the applicant had written
‘Cookhouse’
and that she had also got the case number
completely wrong is bizarre, particularly since there were no other
typing errors in
this document and that there was in fact a Somerset
East case with the numbers typed by the secretary.
[29]
In short, neither of the cases mentioned by the applicant in his
exculpatory statement were the cases for which the sketch
plan was
supposedly needed. His version ultimately was that the sketch plan
actually related to a Cookhouse stock theft case. The
sketch plan he
purportedly produced on 13 February 2011 in relation to the stock
theft case has all the appearances of a bogus
computer-generated
document without any meaningful features.
[30]
Another fact which tells against the applicant is that if the purpose
of the trip was solely to check a sketch plan in the
vicinity of
Cookhouse, he would have returned to Grahamstown by the same route he
got to Cookhouse, namely on the R350. Yet instead
of turning south
onto the R350 at Bedford, he travelled a considerably longer distance
on the R63 to Fort Beaufort where he stopped
for a minute or two
before heading south onto the R67.
[31]
When one adds, to all of the above, that despite the journey of 351
km the odometer reading changed by only three kilometres,
one can
arrive at no other conclusion than that the applicant undertook a
private journey but arranged for the odometer to be disconnected
or
reversed to conceal this fact, an operation which, according to the
State’s evidence, would not have been difficult for
one who
knew what to do. Nobody else could plausibly have fiddled with the
odometer; and it is fanciful beyond all reason to suppose
that the
odometer coincidently malfunctioned on the very weekend the applicant
made unauthorized use of the vehicle.
[32]
The applicant denied that an officer of his rank was obliged to seek
authorisation for the official use of vehicles. Botha’s
evidence, supported by documents, established the contrary beyond
doubt. It was argued on the applicant’s behalf that the
regional court should not have had regard to Botha’s evidence
concerning the need for authorisation because this part of
the
applicant’s defence had been foreshadowed in the
cross-examination of the State witnesses. While this is so, no
objection
was taken when Botha was led on the rules relating to
authorisation. On the contrary, he was cross-examined thereon. After
Botha’s
evidence the magistrate afforded the applicant an
opportunity to reopen his case which was declined.
[33]
The applicant’s counsel submitted that because Botha’s
evidence indicated that the applicant would not have needed
authorisation for a trip taken within the Grahamstown LCRC’s
service area, the state needed to prove that Somerset East was
not
within the Grahamstown LCRC’s service area. However it was
never the applicant’s case that he had not needed authorisation
because he only travelled within his own service area. Moreover, we
know that the applicant on this trip travelled to Fort Beaufort.
De
Klerk’s unchallenged testimony was that there was an LCRC at
Fort Beaufort, so the latter town could not have been within
the
Grahamstown LCRC’s jurisdiction. In any event, jurisdiction
would only matter if it were reasonably possibly true that
the
applicant was using the vehicle for official police business; the
applicant was not permitted, even within his service area,
to use the
vehicle for private purposes.
[34]
The applicant’s counsel criticised the magistrate for
emphasising the alleged disconnection of the odometer, submitting
that the charge in respect of the second count did not allege that
the applicant’s misrepresentation lay in the false odometer
reading. She also drew attention to the fact that the non-disclosure
alleged in the charge sheet was not a failure, in advance,
to
disclose the proposed trip but the failure, after the event, to
disclose that it had been undertaken. Her submissions regarding
the
content of the charge are correct, although the preamble to the
charge highlighted the fact that the odometer reading had only
changed by three kilometres and this circumstance was fully canvassed
in the evidence. During the course of oral argument, she
furthermore
seemed to suggest that this count contained insufficient
particularity, as required by s 84 of the Criminal Procedure
Act 51
of 1977 (CPA).
[35]
Be that as it may, I do not consider that the formulation of the
charge holds out any prospect of success for the applicant
because
the conviction is sustainable on the basis alleged, namely the
applicant’s failure, after the event, to disclose
the trip. As
a senior officer subject to the rules relating to the use of official
vehicles, he was under a duty to disclose his
proposed use of the
vehicle and to do so by way of the prescribed application. Having
failed to do so, he was under a duty, afterwards,
to disclose that he
had used the vehicle and to seek ex post facto ratification. Because
of this duty, his silence constituted
a misrepresentation by omission
that he had not used the vehicle. The disconnection of the odometer
is simply a piece of evidence
in the overall picture of dishonesty.
Moreover, the count is certainly not amenable to quashing for want of
particularity and the
applicant, who had the benefit of legal
representation, could have requested further particulars in terms of
s 87 of the CPA.
[36]
The applicant’s counsel argued that it was not proved beyond
reasonable doubt that the applicant’s failure to notify
Botha
or the SAPS was an omission attributable to fraudulent intent. She
referred us to
S v Gardener & another
2011 (4) SA 79
(SCA)
where Heher JA in the context of the facts of that particular case,
identified nine factors which influenced the conclusion
as to whether
or not the appellants had the intention to defraud the company of
which they were directors (para 35). In regard
to the third factor –
the opportunity to disclose – she pointed out that the
applicant’s evidence was that when
he was confronted on the
Monday morning he had not yet got round to filling in the logbook,
that the logbook was then seized, and
that it was only many months
later that he was asked for an explanation. For various reasons this
argument has no prospects of
success. Since the applicant’s
evidence about the trip was undoubtedly false, the only possible
inference is that he had
no intention of ever disclosing the trip.
His non-completion of the logbook was not negligent tardiness but a
deliberate decision.
He had ample opportunity of making disclosure,
both by completing the logbook and by tendering his explanation as
soon as it emerged
that there was something suspicious. He chose not
to do so, only responding when formally charged.
[37]
The same applies to the first factor in
Gardener
, on which
counsel also relied, namely ‘[w]hat had to be disclosed, not so
much as a requirement of law, but rather as a matter
of pragmatism’.
Once it is concluded that the applicant’s explanation for the
trip was false and that its true purpose
was unrelated to official
police business, there can be no doubt that as a matter of pragmatism
he was under a duty to disclose
it and that his failure to do so was
fraudulent. On the facts of the present case, none of the other
factors enumerated in
Gardener
would lead to a conclusion
favouring the applicant.
[38]
I should mention that at the trial the defence sought to establish
that race relations at the Grahamstown LCRC were tense and
that the
applicant was being victimised by white colleagues. We are unable on
the record to form a view on the legitimacy of this
complaint but I
am satisfied that it has no bearing on the present application. A
racially motivated campaign against the applicant
would only be
relevant if it tended to show that evidence given against him was
dishonest or fabricated. In the present case, enquiries
into the
applicant’s conduct were not part of a campaign against him;
they were fortuitously prompted by the experiences
of Van Staden and
De Klerk on 11 and 14 February 2011. They did not know what the
tracking report would say. They did not know
that the applicant had
used the vehicle over the weekend. The applicant’s guilt was
primarily established by the tracking
information (the content of
which was largely confirmed by the applicant himself), the absence of
proper applications for authorisation
and his hopeless attempts to
explain his movements.
[39]
Finally, and in regard to sentence, this was a matter for the trial
court. The applicant would need to persuade an appeal court
that
there was a material misdirection or that the sentence was shockingly
severe. I do not think he has reasonable prospects of
demonstrating
any such thing. Corruption and financial dishonesty are rife in this
country, sadly also in organs of state. The
cases which are
prosecuted are the tip of the iceberg. Heavy sentences are warranted;
and the higher the position held, the more
exemplary should the
sentences be.
[40]
The application is dismissed.
__________________
OL
Rogers
Acting
Judge of Appeal
APPEARANCES
For
Applicant
L
Crouse
Instructed
by
Legal
Aid, Port Elizabeth c/o Legal Aid, Bloemfontein
For
Respondent
T
van Zyl
Specialised
Crime Unit, Eastern Cape, c/o National Prosecuting Authority,
Bloemfontein