the court rejects maree's application for leave to appeal

8/4/2019 The court rejects Maree's Application for Leave to Appeal

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IN THE HIGH COURT OF SOUTH AFRICA(NORTH GAUTENG HIGH COURTf PRETORIA)

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - .D E lE T E W H IC H E V E R r s N O T A P P L IC A B L E;'1) REPORTABLE:(NO.

[2) OF INTEREST TO OTHER JUDG~NO'

~ : T : ~ . ~ I ; . ; 0 . ~ ~ . ~ r ~ a t t M r ~ ~ r G : N A j U - , . . . . . ""_I-"""CASE N o. A 1 1212008

SYDNEY MAREE Appllcant)

and

THE STATE Respondent

JUDGMENT: APPL1CATlON FOR LEAVE TO APPEAL

Van der Byl. AJ~-}

I ntrod u e ti on

[1J In th is m a tier we 0n 29 October 2010 drsmisse d a n a pp ea l by th e A ppf can ta ga in st h is con viction a nd the sen ten ce im po se d u pon h im in th e reg io na 1 co urt s ittingat P retori a on two ch a rges of frau d.

(I w i II fa r the sa ke of co n venience refer to the A pplicant as" the Accused')

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[2] As is ap parent from au r judgment it was, broadly spea king, the Accu sed' sdefence -

(a) that he was instructed by Dr Ru ite rs to "ring fence~out of the funds of NEF anamount of money to be paid to Deutsche Securni es in an atte mpt to cou nter thepossi biIity of Deutsche Securities relying on cl ause 2 of the Mandate;

) (b) that he, thereupo n, with knowledg e and approval of Dr. Ruite rs , fra udulently -

(i) forged clause 2 of the Mandate and a further Mandate so as to pretendthat agree ments exist in terms of which the N EF agreed to pay certainamaunts to Deutsche Securities fa r the services it had rendered;

(ii) created two Deutsche Securities' tax invoices on 9April 2004 and 9 June2004 for R512 700 and R399 000. respectively; and

) (iii) caused the am 0unts to be pa id into his personal bank accou n t a n orshortly after these dates.

[3] In view of his defe nce as such he vehemently den led the evidence of Dr. Ruitersto the effect -

(a) that, aIthaug h he was awa re of th e existen ce of the Mandate, he had noknowledge of the specific provisions of the Mandate;

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(b) th at he, afte r havi ng received info rmation th at the Accu sed was inva lved incertai n irregular tra nsactl ans at the NEF, confronted the Accused on 17 June2004 0n the occasion of wh ich the Accused admitted that the info rmation wastrue and that he did not know why he had done that.

)

[4] We held, referri ng to n ine unsati sfactory featu res relat[ng to his evidence, tha t

the Accused's version is so improbable that it can simply not be reasonably possiblytrue.

(5] The Accused now seeks leave to appea I again st both the convicti on and thesentence imposed upon him.

[6) As is apparent from the Notice of Appli cation fo r Leave to Appea I ("theNotice~)dated 12 November 2010 his application for leave to appeal against the conviction isdirected at three issues relevant to the proceedings a quo.

Firstly, alle-ged contradictions in the evidence of Dr. Ruiters (paras 3, 4, 5, 6 , 7,8 and 9 of the Noti ce)

[7] In th is regard it is contended tha t we erred inn at attach [ng due weight to thecontrad ictionsin the evidence of Dr. Rulters, particu larly, rega rding his knowledgereIating to the provis ions of the Mandate, bein9 a contenti on based on an anegati on

{a} that we fa ited to conside rand attach due weight to the fact that the affidavits of

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Mr Kingston and Mr. Van Coller contradicted Dr. Ruiters' evidence;

(b) that we failed to attach due weight to the fact the viva voce evidence of Mr.Kingston contrad icted Dr. Ruiters in th at Mr. Kingsto n expl iciUy stated th at theMandate and its te rms were discussed with Dr. Rulters;

(c) that we erred by not attach ing suffi cient weig ht to the evidence of Mr. Kin9ston) that the draftlng of the Mandate was with the interaction of the Minister, DrRuiters and the Accused;

(d) that we erred in find i n9 that the evidence of Mr. Kingstan was acceptable andcorroboration for the evidence of Dr. Ruiters and that we should have found thatM r. K[ngston contradicted his own sworn statement;

(e) that we erred in not attach ing any weight to the fact that Dr. Ruiters alsocontradicted his own affidavit and the evidence of Mr. Frost.

(8] In this regard I must refer to the decision ln the case of R v Dhlumayo andOthers 1948 (2) SA 677 (A) in wh ich the learned Judge indicated at 702A as follows:

"Indeed, even in a written judgment it is often impossible, without goinginto the facts at undue length, to referio all the considerations that arise.Moreover, even the most careful Judge may forget, not to consider, butto mention some of them. In other words, it does not necessarily foJlowthai, because no mention is made of certain points in the judgment-more especially, of course, if that judgment be an oral and extemporeone - they have not been taken into account by the trial Judge in arrivingat his decis;on. No judgment can ever be perfect and aJl-embracing. Ifwourd be most unsafe invariably to condude that everything that is not

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mentioned has been overlooked.".

)

[9] The issue whetherthe affidavits of Mr. Kingston and Mr. Van Coller contradictedthe eviden ce of Dr. Ruite rs was not raised in the proceedi ngs before us with particularconfidence, hence the fact that we did not deal with the issue explicitly. We, having dulyconsidered all the evidence in context, were, however. aware of the issue as raised inthe proceed ings a quo. This issue was extensively canvassed unde r cross-exa minatianwith both Dr. Ruiters and Mr. Kingston (see: eg., p. 161 of the record). It relates,partlcu larly, to the fact that Mr. Kingston seems to have stated in h~spolice state mentthat both Dr. Ru iters and the Minister ~were aware of the (work) that Deutsche weredoing and the terms of the mendete". Mr. Kingston expla ined when cross-exam ined thathe did not mean by that that they were ~aware of the detailed aspects of the mandate~and he did know whether any of them had read the mandate. He explicitly stated thathe, nor anyone e rse from Deutsche Iwent throug h the mandate with them. This affidavitas wen as the affidavit of Mr. Van Calter were aIso canvassed under cross exa minaUonwlth 0 r, Ruiters (see: p. 63 of the record). He denied having had any d iscussion withMr. Kingston on the terms of the mandate. It was, furthermore, put to Dr. Ruiters thatMr. Van Coller had stated in his statement that the mandate had been approved by Dr.

Ruiters. Dr. Ruiters persisted in not having seen the mandate before 17 June 2004. Mr.Van Coller was not called as a witness and he was accordingly not afforded theopportunity to testify what he meant by having said that.

)

In my 0pinion Mr Kingston satisfacto r[ly exp' ained what he mea nt by what is co ntainedin his statement and in any event stated explicittythat he never discussed the provisionsof the mandate with Dr. Ruiters. That was exactly the gist of Dr. Ruiters' evidence .

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[10] It is, furthermore, not correct, as is contended in the Notice, that Mr Kingstonexpl icitly stated in his eviden ce that he, particuIarly. discu ssed the term s of the mand atewith 0 r. Ruiters.

[11] No reasons appear from paragra ph 8 of the Notice as to the respects in wh tchDr. Ruiters contradicted his own evidence and the evidence of Mr. Frost.

.. 1 A party is, in order to comply with the provisions of RuIe49 of the Uniform Rules, bou ndto indicate in his 0r her noti ce of application for leave to appeal why each find ing of factand ru~ingof law raised in the notice that is to be to criticised as wrong (Tzouras v SAWimpy (PtyJ Ltd 1978 (3) SA 204 (W) at 20SE; Sv Maliwa and Others 1986 (3) SA"721 (W) at 726E; Mo/ebatsi v Federated Timbers (Pty) Ltd 1996 (3) SA 92 (B) at 941;Songomo v Minister of Law and Order 1996 (4)SA 384 (E) at 3851; Van der Walt vAbreu 1999 4 SA 85 (W) at 94E).

It would appear that the co ntradi ctio n between the evidence of Dr. Ruiters and M r . Frostreferred relates to the fact that Dr. Ru iters testified th at he was at the time hesummoned Mr. Frost to his offi ce aware of on 'y payment made by the Accused whilstM r . Frost testified that Dr. Ruiters referred to two paym ents.

Thisis j n my view a contrad ictio n which is, co nside r~ng all the evide nee in context, of nomaterial impartance.

[12} t am accordingly unpersuaded that the re are contradictions between the

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evidence of Dr. Ruiters and the statement or evidence of Mr. Ki ngsto n or that thecontents of Mr. Kingston's statement detract from the evidence of Dr. Ruiters.

{13] In the result the re are in m y vlew no prospects that another Court may come toa difference conclusion on the issues raised in paragraphs 3,4,5,6,7,8 and [9]of theNotice, sum rnarized in parag raph (7] above.

) S&condly. the State's failure to cat! Mr. Van Coller and Ms Reiley as witnesses(paras 10, 11. 12, 13 and 14 of the Notice)

[14] 1 n th is rega rd it is contended that we fa iled to consider and attach due weig ht Irelying on the case of S v Texeira 1980(3) SA 755 (A), to the failure by the State to callMr Van Coller and Ms Reiley as witness.

)

(15} V\lhy the State is criticized for not having called Ms. Re iIy is unelear. Her ro le inthe matter had bee n ra ised by the Accused for the first time under cross-exam inationand in the Accused's evidence. It is in any event criticism that has not been raised intheHeads of Arg ument fi Ied an be half of the Accused.

[16] As far as Mr Va n Coller is concemed, the criticism, I assurne, relates to what Mr.Van Coller seems to have said in his statement relating to the question whether Dr.Ruiters had approved the mand ate.

[17] It was held in Texeira's case, supra, at 7648, that the failure by the State to call

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an alJailabte witness whose evidence may justlfy an inference that such witness'evidence may reflect adversely on the credibility and reliability of a witness.

)

[18] I have no reason to be Iieve, conside ring aU the eviden ce in context and thephrase relied on contained in Mr. Van Coller's statement, that Mr. Van Coller's evidencemay have such an effect on the evidence of Dr Ruiters. Accord ing to th e phrase

co ntained in Mr. Van Co ller's statement, put to Dr Ruiters under cross-exam ination, notnecessari 'y in fu II context of the stateme nt as a whole, 0 r. Ru ite rs approved themandate. It does not necessarily mean that he had done that afte r havj ng consideredthe detailed terms of the mandate. There is also no indication that Mr. Van Coller whowas at the time employed by Deutsche Securities cou k : I have had personal knowledgeof what occurred in Dr. Ruiters' Department.

[191 I am accordingly unpersuaded that in the circumstances this issue detract fromthe cred ibil i ty of Dr. Ruiters.

Thirdly, the probabilities (paras 15! 16, 17 and 18 of the Notice)

[20) In this rega rd It is contended that we shou Id have held that the State bears theonus to prove the guilt of the Accused, but ij nstead found that the improba bilities of theevidence of the Accused outweigh the inconsistencies and improbabillties in the State'scase without evaluat~ng the strength of the State's case.

[21} Th is is a wrong pe rception of ou r j ud9ment.

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[221 As clearly appears from the record and 0urj udgment, the actions performed bythe Accused were com man cause and that the only iss ue was, as set 0u t in ou rjudgment (p. 6, para [8]), ~whether or not the Accused performed all (those) actions onthe official instructions of Dr. Ruiters to have the amounts a vailable for payment toDeutsche Securities and, having done that as instructed, whether or not he had anyintenNon to defraud any of the parties concerned".

) {23] That called for an eva! uation of the credi bility of the evide nce of Dr. Ruite rs onhis denia Ithat he instru cted the Accused as such and his evidence as to what occurredin his office between him and the Accused an 17 June 2004.

[24] This is exactly what we considered with due regard to the submissions made onthe Accused's behalf, as summarized in our judgment at p. 24 (para [34) of ourjudgment against the backg round of the principles referred to at pp. 21 to 24 (paras(26] to [331) of 0ur judg me nt.

) [25] In having done that we held that the Accu sed's versio n is, if rega rd is had, forinstance, to the nine indications and other considerations set out at pp. 25 to 30 (paras[38] to [48]), so improbable that it can simply not be held to have been reasonablyposslbly true.

(26] Having done that we concluded, against the background of the credible evidenceof Dr. Ruiters, as su pported in variaus respects by the evidence of Mr. Kingston and Mr.

Frost, that the State proved its case beyond all reasonable doubt.

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[271 I am accord ingIy unpers uaded that another Cau rt may on the se contentio nscome to a different con clusio n.

Sente nee (paras 19. 20 I 21. 22, 23. 24, 25, 26 and 27 of the Notice)

[28] In this regard it is contended that we, although hav j ng conside red the issue of

rehabi Iitation, in effect erred -

(a) in overemphas ising the element of deterre nce and retributlon;

{b) in attaching any weight to the fact that the fu nd s we re recovered and that noactua I prej udice was suffered;

(e) in not attaching we'ght to the severity of the sentence of 10 years imprisonmentaIthoug h ha1fhas been suspended;

(d) inn at findi ng that the Accused has suffe red lrnmensely due to the incident;:

(e) in not balancing the perso nal ci rcumsta nces of the Accused against the effectof the sentence;

(f) in nat fi nd in9 th at a non-cu stod ial wou Id have in the ci rcumsta nces been anappropri ate sentence.

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(29) These are all considerations which were, as is apparent from our judgment (pp.31 to 34, para (SO) to (63]), considered exte nsively by the mag istrate.

[30] As indicated in our judgment, punishment is "pre-eminently a matter for thediscretion of the trial Court" and that we were unable to hoId that the magistrate failedto exercise hls discretion jud iclally and properly or th at the sentence imposed isdlsturbl ngly inappropriate.){31] Iam unpersuaded that for the reasons set out in our judgment that another Cou rtmay, bearing in mind the prescribed sentence of 15 years imprisonment, come to adiffere nt conclusion.

!n the resu It the followin g order is made:-

1. The Applicant's application for leave to appeal is dismissed.

) 2 . In so fa r as we have at the time of the hearing of this appi icatio n been j nformedthat the Applicant intends, in the event of his application for leave to appealbeing dismissed, to approach the Supreme Court of Appeal fa r such [eave andthe State having indicated that it has no objection against the Accused's bailbeing extended, it is ordered that the Applicant's bail be extended pending theoutcome of an appl ication for leave to appea' to the Sup reme Court of Appea I,

to be lodged before or on 24 December 2010.

PCVAN DEACTING JUDGE OF THE HIGH COURT

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~.

)

)

Onthe instru ctions of:

ON BEHALF OF THE RESPONDENT

an the instructions of:

DATE OF HEARINGJUDGMENT DELIVERED ON

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ADV F LABUSCHAGNE(012) 303 78464 OR 082 334 3547

MCHUNU ATTORNEYSTe l Floor, South WingPres ident Place160 Jan Smuts

RosebankJOHANNESBURG

Ref: N T MchunulMareJ223310002Tei: (011) 778 40iO or0832971146

ADV M RAMOORTHY

DIRECTOR OF PUBLIC PROSECUTIONSPRETORIA

Tel: (012) 401 01420 or 0823793566

2 December 20103 December 2010

the court rejects maree's application for leave to appeal

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