Fraud

Accomplice witnesses

THE HIGH COURT OF SWAZILAND

CRIM. APPEAL CASE NO. 10/2001

In the matter between

ZEPHANIA MAGAGULA 1ST APPELLANT

ELLIOT MPIPI MATSENJWA 2ND APPELLANT

Vs

REX

Coram MAPHALALA J

MASUKU J

For 1st Appellant MR. C. NTIWANE

For 2nd Appellant MR. S. KUBHEKA

For the Respondent MR. L. NG`ARUA (Director of Public Prosecutions)

JUDGMENT

(13/12/2001)

Maphalala J:

The two appellants in this matter appeared before the Senior Magistrate in Manzini and were charged with three counts of fraud as follows:

COUNT 1

The accused are guilty of the crime of fraud. In that upon or about 15th February 1999, and at or about Swaziland National Provident Fund in the district of Manzini, the said accused 1 and 2 did unlawfully and with intent to defraud, misrepresent to the Swaziland National Provident Fund, that a certain claim which the accused there and then produced and exhibited to the said Swaziland National Provident Fund was a copy of the claim of Patrick Buti Sacolo and according to the said claim Patrick Buti Sacolo would receive a sum of E63, 334-41, and did means of the said misrepresentation induce the said Swaziland National Provident Fund, to his prejudice, to order that such a claim be processed and allow time there and then contracted by the said accused whereas the accused knew that the said claim was made without the knowledge and consent of the said Patrick Buti Sacolo, therefore such is not a true copy of his claim and that the accused were not entitled to such claim of E63, 348-41.

COUNT 2

The accused are guilty of the crime of fraud. In that upon or about 22nd October 1998, and at or near Swaziland National Provident Fund in the district of Manzini, the said accused 1 and 2 did unlawfully and with intent to defraud, misrepresent to the Swaziland National Provident Fund that a certain claim which accused there and then produced and exhibited to the said Swaziland National Provident Fund was a copy of Dlamini Mkhetfwa Kenneth would receive the sum of E22, 412-35, and did by means of the said misrepresentation induce the said Swaziland National Provident Fund to his prejudice, to order that such a claim be processed and allow time and credit for payment of such claim there and then contracted by the said accused whereas the accused knew that the said claim was not a true copy and was done without the knowledge or consent of the said Kenneth Mkhetfwa Dlamini, therefore the accused were not entitled to such claim of E22, 412-35.

COUNT 3

The accused are charged with the crime of fraud. In that upon or about 21st October 1997, and at or near Swaziland National Provident Fund in the district of Manzini, the said accused 1 and 2 did unlawfully and with intent to defraud, misrepresent to the Swaziland National Provident Fund that a certain claim which the accused there and then produced and exhibited to the said Swaziland National Provident Fund was a copy of the claim of Mncina Griffiths Mihlayifani and according to the said claim Mncina Griffith Mihlayifani would receive the sum of E39, 407-55, and did by means of the said misrepresentation induce the said Swaziland National Provident Fund to his prejudice, to order that such a claim be processed and allow time and credit for payment of such claim there and then contracted by the said accused whereas the accused knew that the said claim was made without the knowledge or consent of the said Mncina Griffiths Mihlayifani, therefore such claim is not a true copy of his claim and that the accused were not entitled to such claim of E39, 497-55. The total amount involved is E125, 168-31.

The first appellant pleaded not guilty to all the charges and the presiding Magistrate in the court a quo convicted the 1st Appellant of the charges and sentenced him in the manner set out below:

Count 1 - Seven (7) years imprisonment without the option to pay a fine.

Count 2 - Four (4) years imprisonment without the option to pay a fine.

Count 3 - Six (6) years imprisonment without the option to pay a fine.

The 1st Appellant’s sentences were backdated to the 30th November 1999, and were to run concurrently.

The 2nd Appellant pleaded not guilty to the charge and was convicted and sentenced in respect of the third count to five (5) years imprisonment without the option to pay a fine and the sentence was backdated to the 30th November 1999.

At the commencement of this appeal Mr. Ntiwane for the 1st Appellant moved an application by notice of application that the Notice of Appeal dated the 23rd October 2000, be amended and be substituted with the Notice of Appeal annexed as annexure “B” to the application. The application was duly granted as there was no opposition by the Crown.

Mr. Kubheka for the 2nd Appellant also filed an application by Notice of Application for an order condoning the 2nd Appellant for the late filing of a Notice of Appeal and granting the appellant leave to appeal against the judgement of the Magistrates Court. This application was subsequently granted by the court.

In view of the complexity of the case it is important to outline the grounds of appeal by the two appellants in extenso. The grounds of appeal in respect of the 1st Appellant read as follows:

AD CONVICTION

AD SENTENCE

In respect of the 2nd appeal the following grounds are advanced:

1. AD CONVICTION

2. AD SENTENCE

The sentence is excessive and induces a sense of shock.

I now proceed to outline the facts which were led before the court a quo leading to the conviction of the appellants. The crown’s evidence is that false claims were lodged with the Swaziland National Provident Fund (hereafter referred to as “The S.N.P.F”) in Manzini. According to PW6 Simanga Simoen Lukhele the 1st Appellant approached him having a Graded Tax number of a customer. The 1st Appellant told PW6 the owner of that Graded Tax number that he wanted to claim his money. 1st Appellant asked PW6 to ascertain how much that customer had. PW6 did so. The claim was accordingly processed by PW6. The cheque for the sum of E39, 497-55 was made by the Swaziland National Provident Fund in favour of the claimant. The Graded Tax number belonged to Mncina Griffiths Mhlayifani.

Again the 1st Appellant came to PW6 with a Graded Tax number for Patrick Buti Sacolo. The 1st Appellant brought the claim forms for Patrick Buti Sacolo to PW6. PW6 processed the claim and a cheque of E63, 348-41 was made by the Swaziland National Provident Fund in favour of the claimant. PW6 then went on leave. When he came back the 1st Appellant gave him a claim form for Kenneth Mkhetfwa Dlamini. PW6 processed the claim and a cheque for E22 412-35 was made by the Swaziland National Provident Fund in favour of the claimant. This cheque was never cashed as it was stopped by the Swaziland National Provident Fund. The cheque for E39, 497-55 was cashed at Siteki - First National Bank. The person who brought the cheque to the bank was attended by PW7 Mavis Lungile Dlamini. The Senior Magistrate in the court a quo found that this piece of evidence was not in dispute. The cheque for the sum of E63, 348-41 was cashed at Matsapha – First National Bank by PW5 Paul Simelane who posed as Patrick Buti Sacolo.

From these facts the Senior Magistrate held that it was clear that it was the 2nd Appellant who was the architect of the false claim in the name of Patrick Buti Sacolo. The charge that the appellants are facing is that of fraud and not forgery, reasoned the learned Magistrate. The 2nd Appellant according to the learned Magistrate committed forgery through PW5 when he made the false document purporting to be a claim lodged by Patrick Buti Sacolo. There was no evidence that the 2nd Appellant presented the claim to Swaziland National Provident Fund.

The Senior Magistrate held that the evidence revealed that it was the 1st Appellant who made a misrepresentation to PW6 that the owner of the Graded Tax number wanted to claim. That was not correct as PW2 Patrick Buti Sacolo told the court that he never lodged that claim. He found that in Count 1 it was the 1st Appellant who made the misrepresentation to the Swaziland National Provident Fund through its employee PW6.

In Count 2 the learned Senior Magistrate found that it was the 1st Appellant who submitted the claim for Kenneth Mkhetfwa Dlamini to PW6. 1st Appellant asked PW6 to process it and PW6 did so. PW3 told the court that he never lodged that claim and that he never authorised anyone to do so on his behalf.

In Count 3 the learned Senior Magistrate found that it was 1st appellant who misrepresented to PW6 that Griffiths Mncina wanted to claim his money. The claim was processed and the cheque was made in his favour. The evidence revealed that during the lunch hour 2nd appellant came to PW6 carrying Mncina’s cheque. The cheque was cashed in Siteki at First National Bank by 2nd appellant. When PW6 and 2nd appellant came back from Siteki he told PW6 that the documents for the claim would be destroyed and fresh ones lodged when he reaches the qualifying age. From these facts the learned Magistrate concluded that 2nd appellant knew that the money was obtained illegally and that 2nd appellant associated himself with the crime knowing of its commission.

The learned Senior Magistrate found that the evidence of the two accomplice witnesses was corroborated. The evidence of PW6 about the cheque that was cashed at First National Bank in Matsapha was corroborated by PW8 who also supported her evidence by documentary evidence.

As regards the appellant’s defence the learned Magistrate rejected 1st appellant denial of having committed the offence holding the view that 1st appellant did not deny that it was his duty to fill the forms when a customer has come to claim his money and thus his bare denial was not enough. A bare denial is not a defence. That 1st appellant failed to establish his defence whereas he was connected to the crimes. 2nd appellant just denied everything and he failed to give an acceptable reason why the crown witnesses told lies against him.

The learned Senior Magistrate on the issue of finger prints and handwriting evidence held that such a case this evidence does not apply as the charge is fraud and not forgery.

The above are the findings of the Senior Magistrate in the court below.

We have heard comprehensive arguments for the two appellants by Mr. Ntiwane for the 1st applicant as well as Mr. Kubheka for the 2nd applicant. Mr. Ng`arua also advanced formidable arguments on behalf of the crown. Comprehensive Heads of Arguments were filed on behalf of the parties in this appeal. We record our indebtedness to counsel in this regard.

Mr. Ntiwane for the 1st appellant raised a number of issues in his attack on the conviction and sentence by the Senior Magistrate in the court a quo. Firstly, that the court a quo erred in fact and in law in finding and holding that it was the 1st appellant who made the misrepresentation to the Swaziland National Provident Fund which resulted in the fraud in respect of all the counts in that the “misrepresentation” occurred in Pigg’s Peak and not in Manzini where the 1st appellant was based.

Secondly, it was contended on behalf of the 1st appellant that the court a quo erred in fact and in law in finding and holding that the question of finger prints and handwriting evidence did not feature in the case at all as the claim forms that were exhibits form the basis of the fraud appellant was convicted of. Given the 1st appellant’s denial it was significant to establish who completed the claim forms and submitted them for payment. In the event it cannot be shown that in fact the 1st appellant completed the claim forms and submitted them it cannot be said he committed the fraud, argued Mr. Ntiwane.

Thirdly, it was argued that the court a quo erred in fact and in law in finding and holding that the accomplice witnesses PW5 and PW6 were credible. Mr. Ntiwane went further in great detail to punch holes in the evidence of these witnesses to support his contention. I shall advert to this aspect of the matter in great detail later in the course of this judgement.

Lastly, it was contended on behalf of the 1st appellant that the court a quo erred in holding that appellant has failed to establish his defence in as much as the 1st appellant had no legal duty to prove his innocence.

Mr. Kubheka for the 2nd appellant associated himself with the submissions made by Mr. Ntiwane on these questions. He abandoned the points in limine he had raised in his Heads of Arguments which was an attack on the record of proceedings in the Magistrate court which in his view was so poorly prepared and so unreliable as a purported transcript of the proceeding in that court that it can be fairly said that it denied the 2nd appellant his right of appeal. Mr. Kubheka in his withdrawal rightly conceded that these fears were unwarranted as the court record was in order.

In his main arguments Mr. Kubheka in a large measure treaded on the same ground adverted to by Mr. Ntiwane for the 1st appellant. However, the thrust of his arguments on behalf of his client was that there was no evidence led that the 2nd appellant helped the perpetrator or accomplices to escape justice in as much as there is no act by which the 2nd appellant protected either the perpetrator or accomplices from liability. The court a quo gave no reasons whatsoever for the finding that the 2nd appellant was an accessory after the fact. The court was referred to the case of S v Mlovi 1925 A.D. 131, which is cited in C.R. Snyman, Criminal Law (4th ED) p. 273 in this regard.

Mr. Ng`arua for the crown argued per contra. Firstly, he submitted that the fact of the discovery is being confused with the fact that the forms were filed in Pigg’s Peak. The evidence of PW1 shows that the discovery was made after the genuine claim had been filed in Pigg’s Peak. The argument that the “misrepresentation” ought to have taken place in Pigg’s Peak is a fallacy, according to Mr. Ng`arua.

Under this head he contended further that the fact that the 1st appellant was not found physically submitting the forms and thus cannot be liable as not true in terms of the doctrine of common purpose. On this score Mr. Ng`arua moved this court to amend the charge sheet in terms of Section 154 (1) of the Criminal Procedure and Evidence Act No. 67/1938 by inserting the words “acting in common purpose” in the indictment.

Secondly, on the issue of the evidence on the handwriting and fingerprints Mr. Ng`arua holds the view that the argument is fallacious in that for a fraud to occur the perpetrator does not have to prepare the documents himself.

Thirdly, on the issue of the evidence of the two accomplice witnesses Mr. Ng`arua took the view that the contradictions pointed out by counsel do not go to the root of the matter. What is important is that the two witnesses were testifying on the same event. It is the agreement between these witnesses on the event that carries the day, argued Mr. Ngarua.

On the last point raised by Mr. Ntiwane that the appellant had no legal duty to prove his innocence, Mr. Ng`arua conceded that this was indeed the legal position but stated that in casu the Senior Magistrate merely took notice of this and this did not influence his ultimate findings.

The above, therefore are the submissions for and against the conviction and sentences in respect of the appellants in this matter.

I now proceed to address the issues raised ad seriatum, viz i) the question of “misrepresentation”; ii) the handwriting and fingerprints evidence, iii) the evidence of the two accomplice witnesses and iv) the 1st appellants’ denial.

In respect of Count 1 the court a quo found and held as follows:

“Fraud consists in the unlawful making with the intent to defraud, a misrepresentation which causes actual or potential prejudice. The evidence revealed that it was accused no. 1 who made a misrepresentation to PW6 that the owner of the Graded Tax number wanted to claim. That was not correct as PW2 Patrick Sacolo told the court that he never lodged that claim. In Count 1 therefore it was accused no. 1 who made the misrepresentation to the Swaziland National Provident Fund through its employee PW6” (per p. 82 of the record).

Similarly in respect of Count 2 the court found as follows:

“It was accused no. 1 who submitted the claim for Mkhetfwa Kenneth Dlamini to PW6 accused no. 1 asked PW6 to process it. PW6 did so...” (per p. 82 of the record).

In respect of Count 3 again the court a quo found as follows:

“It was accused no. 1 who misrepresented to PW6 that Griffiths Mncina wanted to claim his money. The claim was processed and the cheque was made in his favour”.

Fraud consists in the unlawful making, with intent to defraud, misrepresentation, which causes actual prejudice or which is potentially prejudicial to another (see J.R.L. Milton, South African Criminal Law and Procedure (2nd ED) page 755 and the cases cited thereat). In the case in casu we are inclined to agree with Mr. Ng`arua that for a fraud to occur the perpetrator does not have to present the document himself. He may operate through third parties as it is shown by the excerpts from the record cited above. It is our view, therefore in this regard that the submissions advanced on behalf of the appellants are without merit in this particular case.

In my view, with the greatest respect to the learned Senior Magistrate the evidence of fingerprints and handwriting was crucial in this case given the 1st appellant’s denial. It was significant to establish who completed the claim forms and submitted them for payment. As it is, it could not be established as to who completed the forms in question.

It is my view that the crown case in the case in casu stands or falls on the evidence of the two accomplice witnesses PW5 and PW6 and it is imperative therefore to establish whether they were credible witnesses. The court a quo found that the evidence of PW5 and PW6 was acceptable and that they made errors in their evidence because of the lapse of time and that they were not deliberately telling lies. It went on to say that it had exercised the necessary caution according to law.

The classic statement of what has been described as “the common rule of practice” in dealing with accomplice evidence is contained in the judgment of Schreiner JA in the South African Appellant Division in the case of Rex vs Ncanana 1948 (4) S.A. 399 (A) at pages 405 – 406 where the following appears:

“What is required is that the trier of fact should warn himself, or, if the trier is a jury, that it should be warned, of the special danger of convicting on the evidence of an accomplice; for an accomplice is not merely a witness with a possible motive to tell lies about an innocent accused but is such a witness peculiarly equipped, by reason of his inside knowledge of the crime, to convince the unwary that his lies are the truth. This special danger is not met by corroboration of the accomplice in material respects not implicating the accused, or by proof aliunde that the crime charged was committed by someone ... The risk that he may be convicted wrongly ... will be reduced, and in the most satisfactory way, if there is corroboration implicating the accused. But it will also be reduced if the accused shows himself to be a lying witness or if he does not give evidence to contradict or explain that of the accomplice. And it will also be reduced, even in the absence of these features, if the trier of fact understands the peculiar danger inherent in accomplice evidence and appreciates that acceptance of the accomplice and rejection of the accused is, in such circumstances, only permissible where the merits of the former as a witness and the demerits of the latter are beyond question”.

This statement of Schreiner JA has been applied with approval by the Court of Appeal in Jeremiah Petros Dludlu vs The King Criminal Appeal NO 12/93.

From the afore-going, it is clear that corroboration implicating the accused person with the commission of the crime and the danger of convicting an accused person will be reduced where the latter is a lying witness, the court must appreciate that rejection of his evidence and acceptance of the accomplice is only permissible where the merits of the accomplice as a witness are beyond question.

Can that be said to be the position in this case? In the instant case in my view it is not so. PW6 attempted to state what happened in chronological order though not mentioning the dates. According to him the first claim they dealt with is one in Griffiths Mncina’s name followed by that of Patrick Sacolo and later the Mkhetfwa Dlamini claim. However, this evidence is at variance with the evidence by PW1 who gave a chronological outline of events with the actual dates.

The versions given by PW5 and PW6 in respect of the circumstances surrounding the deposit, withdrawal and sharing of the money at the First National Bank are totally different. A number of differences emerge from their evidence. PW5 testified that it was after midday that he proceeded to the First National Bank in the company of the 2nd appellant. PW6 on the other hand testified that it was on a Saturday morning at 9.00am that they proceeded to the First National Bank, Matsapha.

PW5 testified about the 2nd appellant as having been present. PW6 on the other hand testified that there were four (4) persons present, i.e. appellants, Patrick Sacolo and himself.

Further on, PW5 testified that after he had made the withdrawal of the money he gave it to the 2nd appellant and was given E1, 500-00 as his share. On the other hand PW6 testified that in fact Patrick Sacolo (presumably PW5) took all the money himself and only gave the three of them (i.e. 1st appellant, 2nd appellant and himself) E15, 000-00 to share.

From the above it is clear that the versions given by the accomplice witnesses PW5 and PW6 are very different in respect of material issues and as such their evidence should not have been accepted.

PW5’s evidence is also not corroborated by PW8 the banker who testified that in fact the person who made the withdrawal first came to the bank on the previous day. There he opened the account and deposited the cheque. A sum of E60, 000-00 was withdrawn on the following day the cheque was deposited. PW5 only testified that he was given a cheque which he took on that day and presented it for payment. He could not testify about the amount he withdrew.

Clearly, on the face of the evidence of PW8, PW5’s version is very suspicious and ought not to have been accepted.

Furthermore, PW6 testified that after the cheque had been cashed at Siteki - First National Bank together with the 2nd appellant they proceeded to Manzini where after certain discussions they shared the money. He received E20, 000-00, 1st appellant received E20, 000-00 and 2nd appellant received the balance of E23, 000-00. That cannot be so as the cheque that was cashed at Siteki was for E39, 000-00. It cannot be said that PW6 confused the transactions, i.e. Matsapha and Siteki because he does mention who was present at each instance and who received benefits from the transaction they were involved in.

On this aspect it is my view that the evidence of PW5 and PW6 is not corroborative of each other in instances where it ought to be in agreement and as such the court a quo ought not to have accepted their evidence and relied thereon in returning the verdict.

On this aspect of the matter Mr. Ng`arua for the crown conceded that the appellant had no legal duty to prove his innocence. This indeed, is a trite principle of our law and it was expressed in clear terms by Greenberg J. in the seminal decision in R v Difford 1973 A.D. 370.

“...No onus rests on the accused to convince the court of the truth of any explanation which he gives. If he gives an explanation, even if that explanation is improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but also that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal”.

In casu, the 1st appellant could not deny that it was part of his duty to assist Swaziland National Provident Fund client process their claims and to that end assisted them in filing the claims.

All in all for the afore-mentioned reasons the conviction is against the weight of evidence adduced at the trial in as much as not all the elements of the offence were proved beyond any reasonable doubt.

As an aside, the convictions and sentences have been set aside not without a heavy heart in view of some evidence which links the appellants to the crimes. This is particularly so since the crimes were perpetrated against a national institution and involve large sums of money. However, in terms of the law we are constrained to reach the verdict that we have where the crown fails to sufficiently prove a case against an accused person beyond a reasonable doubt. This case may be a pointer to the complainant that there is a need to strengthen the procedures and processes for payment in order to avoid such incidences occurring as it would appear that the shepherds sometimes turn themselves into wolves.

In the result, the appeal in respect of both appellants succeeds and their convictions and sentences are set aside.

S.B. MAPHALALA

JUDGE

I agree

T.S. MASUKU

JUDGE

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