IN THE HIGH COURT OF SWAZILAND
Ruling on application in terms of S174(4) of the Criminal
Procedure and Evidence Act 67 of 1938
HELD AT MBABANE CRIM. CASE NO. 420/10
In the matter between:
REX Applicant
VS
THEMBA PHINEAS DLAMINI 1st Respondent
JOHANNES MANDLA NDLANGAMANDLA 2nd Respondent
THEMBI NDLANGAMANDLA 3rd Respondent
ESAU MUZI DLAMINI 4th Respondent
DUMSANI MNAZARETHA MKHUMANE 5th Respondent
EDUCUM SUPPLIERS INVESTMENTS (PTY) LTD 6th Respondent
HART SUPPLIERS (PTY) LTD 7th Respondent
Neutral citation: Rex v Themba Phineas Dlamini and Others (420/10) [2015] SZHC 153 (11 September 2015)
CORAM MAMBA J
HEARD :
DELIVERED: 11th September 2015
[1] This is an application for the discharge and acquittal of the accused persons in terms of section 174 (4) of the Criminal Procedure and Evidence Act 67 of 1938 (as amended). This section provides as follows:
‘If at the close of the case for the prosecution, the Court considers that there is no evidence that the accused committed the offence charged or any other offence of which he might be convicted thereon, it may acquit and discharge him.”
In R v Mphumelelo Mamba and 3 Others, case 138/2009 a ruling delivered on 2nd December 2009, this court stated the position as follows;
‘This provisions have been the subject of many judicial decisions within this jurisdiction. Amongst these cases is Rex v Duncan Magagula and 10 Others, Criminal Case 43/1996 (unreported) when Dunn J said:
“This section is similar to section 174 of the South African Criminal Procedure and Evidence Act 51 of 1977. The test to applied has been stated as being whether there is evidence on which a reasonable man acting carefully might convict.”
See also Rex vs Obert Sithembiso Chikane and Another Criminal Case 41/2000 where the court (per Masuku J) emphasized the point that the Court has a discretion, to be exercised judicially in deciding whether or not to grant the application for a discharge. (See also the decision of this court in Rex vs Mario Masuku, Criminal Case 348/2008 delivered on 23 September 2009).’
[2] Initially, there were seven persons appearing on the indictment. However, when the trial began on 10 September 2014 and before the plea was taken, the crown acting in terms of section 6 of the Criminal Procedure and Evidence Act 67 of 1938 applied to withdraw the charges in respect of the 3rd, 4th, 5th and 7th accused persons. The charges were accordingly withdrawn and therefore this ruling relates to the three remaining accused herein.
[3] There are, in all nine (9) counts of theft in the indictment and these are as follows:
3.1 On the first count, it is alleged that all three accused persons are guilty of the crime of theft. The crown alleges that this offence occurred between 03 May 2007 and 02 October 2007 at Evelyn Baring High School in Nhlangano where the first accused (hereinafter referred to as A1) was the School Principal. It is alleged that the accused unlawfully and intentionally caused a general deficiency of E3 783.95.
3.2 Likewise, the second count alleges that the accused, between the 15th day of January, 2007 and 4th March 2008, all three accused unlawfully and intentionally caused a general deficiency of E18,895.00 at the same school.
3.3 The 3rd count alleges another general deficiency of E6909.00, that was unlawfully and intentionally created by the accused at the same school during the period between 02 October 2007 and 15 July 2008.
3.4 On the 4th count, a general deficiency of E21 034.55 was allegedly created. This was during the period 03 May 2007 to 02 October 2007 and 15 July 2008.
3.5 On count 5, a general deficiency of E4, 594.25 is complained of and is said to have occurred or caused on 02 October 2007.
3.6 On count 6, a general deficiency of E24 740.00 is alleged to have been caused by the accused on 14 September 2009.
3.7 Only A1 is changed on count seven (7), where it is alleged that he unlawfully and intentionally created a general deficiency in the sum of E4000.00. This is said to have occurred on 08 December 2006.
3.8 Again, only A1 is charged on counts 8 and 9. There, it is alleged that he intentionally and unlawfully caused a general deficiency of E6013.95 and E4800.00 on 15 March 2005 and 24 January 2006, respectively and as in all the other counts, this offences were committed at the school stated above.
[4] It is also alleged and it is common cause that at all times material hereto, the second accused (hereinafter referred to as A2) was a director of the 6th Accused, who shall hereinafter be referred to as A6.
[5] In its quest to establish its case against the accused, the crown led 18 witnesses. I should immediately note that at the close of the case for the crown, the crown abandoned the last count, ie, count nine (9) and A1 was consequently acquitted and discharged thereon. During argument for the discharge of the accused on the rest of the charges, counsel for the crown conceded that the crown had produced or led no evidence implicating any of the accused in respect of count two (2). All three accused persons were again, accordingly acquitted and discharged on that count. This ruling is therefore only in respect of the seven (7) remaining counts namely; counts 1, 3, 4,5,6,7 and 8. I deal with these counts below.
[6] The first crown witness was Esau Muzi Dlamini (PW1). He informed the court that he was a Director of Hart Suppliers (Pty) Ltd, a company of which A2 was once a director. The company was in the business of supplying books, stationery and cleaning material and equipment to schools. He informed the court that in or about 2010, whilst A2 was a member of Parliament, A2 informed him that as a Member of Parliament (MP), he was through A6, experiencing difficulties collecting money for work and services rendered to schools in Swaziland. For this reason, A2 requested PW1 to collect his company’s cheque from Evelyn Baring High School (hereinafter referred to as the school). Pw1 agreed to do this and the money, in the form of a cheque for E24 740.00 was collected by his company from the school on behalf of A2 and A6. The cheque was deposited into Hart Suppliers’ bank account. After deducting Hart Suppliers’ bank charges and commission, a cheque in the sum of E24 340.00 was issued and payable to A6. This evidence is in respect of count 6. I pause here to observe that although PW1 stated in his evidence in chief that the request to him was made by A1 in 2010, under cross examination he conceded that this could have been in 2009. A simple calculation shows that the deductions referred to above amount to E400.00. This amount, PW1 stated, was agreed upon between him and A2; presumably before the cheque was actually collected from the school.
[7] PW2, Thobile Dladla, an employee of Hart Suppliers testified that the cheque in question was actually brought to her for banking by A2. She banked it on 14 September as per exhibit A. Her evidence has not been disputed by any of the accused and is therefore common cause.
[8] The invoice in question on count 6 is exhibit V and is dated 05 August 2009. Its layout or format is markedly different from the other invoices. For example, the postal address of A6 appears on the top left corner whilst only its telephone numbers appear on the top right hand corner. The telephone numbers have eight digits. This, according to the crown is irregular as local telephone numbers had only seven digits at the time. Again, on the bottom left hand corner it has the words “P.S. cheque paid to Hart Suppliers (Pty) Ltd”. This suggests that it was or might have been completed after the relevant date and backdated. This clearly cries out for an explanation from the accused.
[9] PW12, Dumsane Mnazaretha Mkhumane testified mainly on count seven. He told the court that he was the chairman of the School Committee from 2004 till 2008. In his capacity as chairman he was signatory to the school’s bank account together with A1. He testified that members of the school committee were eligible to apply or request for loans from the school and, he requested and was granted a loan of E4000.00 by A1. This was on 08 December 2006. He never repaid any of this money and A1 told him that he had used his own money to repay it and in turn PW12 had to reimburse him. PW12 had, at the time he testified, not done so. There is no evidence either, that A1 indeed repaid this money to the school. A1’s claim of having repaid the money on behalf of PW12, may, if proven to be false, amount to attempted theft by conversion as he told Pw12 not to repay the money or loan to the school but to him. Apart from this, attached to that cheque made out to PW12 is a receipt ostensibly from S and S Stationery (Pty) Ltd dated 11 December 2006 in support of that payment. Prima facie this is false accounting at the very least. This evidence, thus incriminates A1 in this regard and he is therefore not entitled to a discharge at this stage of the trial.
[10] On count 8, the crown alleges that A1 caused or created a general deficiency or shortage of E6 013.95 on 15 March 2005. The supporting voucher has no number. The cheque in question in number 001689 and is dated 15 March 2005 and is made payable to Esau Nxumalo. This cheque was signed by A1 and PW12. The annotation or purpose of the payment as per the said voucher was ‘cash to buy Books from RSA’. There is also an undated receipt from Vrydump Suppliers (Pty) Ltd of 1207 Pongola for a receipt of cash in the same amount from the school. The receipt number is 0594. The crown alleges that no such company exists in South Africa trading and registered under that name or S & S Stationery (Pty) Ltd. This was stated by PW15 Abram Ntate Tuwe from the Intellectual Property Commission of South Africa, in Pretoria. For now, there is no evidence to gainsay this. The conclusion or deduction is thus nearly inescapable that these invoices and receipts are a forgery. Equally suspicious is the whole transaction and related payments relevant thereto. The prima facie evidence is that the stationery in question was neither ordered by the relevant heads of department nor received by them.
[11] Again, Esau V. Nxumalo (PW8) who is the payee in respect of this cheque testified that he cashed the cheque and gave the money to A1 who allegedly said it was for wages due to certain persons who had painted the school. However, on being questioned further on the latter point, PW8 admitted that he may not be certain that indeed A1 said the money was for the said purpose as this was not the only cheque A1 had required him to cash at the bank at the time. This concession does not, however, detract from the prima facie evidence that Vrydump Suppliers (Pty) Ltd does not exist and the material allegedly purchased was not received by the school. This evidence implicates A1. He is therefore again not entitled to be acquitted and discharged at this stage of the proceedings.
[12] The evidence on counts 1, 3, 4 and 5 overlaps in many essential respects. For instance, count 3 alleges that the offence was committed ‘on or about the 2nd October 2007 and 15th July 2008’. This is repeated in count 4, with the addition that the 3rd May 2007 is also alleged. The latter date, i.e. 03 May 2007 also appears in count 1. The confusion, however, does not end here. All four of these counts include the 2nd day of October, 2007. Whilst specific amounts have been alleged on each count as constituting a general deficiency or shortage, the evidence is less than clear on these counts. Having said this, the crucial point for consideration though is that all these transactions relate to the alleged selling, supply of and payment for books and stationery by A6 to the school. The crown has led evidence from the responsible heads of departments at the material time at the school who all testified that they never received some if not all of these books or goods. Exhibits R1 – R4 concern the supply of materials to the school. A sum of E22 646-25 was charged and paid for these. The invoice is dated 03 May 2007 and the relevant cheque is number 002316 dated 07 May 2007. According to R2, these goods were received by A1 who in turn issued cheque R4 as payment. This clearly calls for an explanation from him as to whether he actually received these items and if so what he did with those items.
[13] As stated above, the common date in all these four counts is 02 October, 2007. According to the indictment E46 321.75 is the total general deficiency involved in these counts. PW7, Themba Rodgers Mamba informed the court that as head of the social studies department, he did not receive some of the Books listed in invoice number 0121 dated 15 July 2008 from A6. He testified that on 13 March 2009, he received only 90 copies of the Book Geography of Swaziland as per exhibit H. These books had been ordered in 2008. The other books for his department listed on that invoice were neither ordered nor received by him.
[14] PW3, PW4, PW5, PW6 and PW10, who were all heads of departments at the material period, testified that some of the books in the various invoices from A6 had not been requisitioned or ordered by them. Pw3, Maria Nkosazana Lukhele particularly emphasized that none of the books listed in invoice 0040 dated 02 October 2007 had been ordered by her or the department of English. She also stated that these books were also not received by her and were also not reflected in her Stock Book which she kept at the time. She also emphasized that the school usually did not order books in October as this was the time for examinations. Orders were made prior to that month. I note, however, that because the invoice is dated 02 October 2007 would seem to suggest that the order may have been actually made before that date.
[15] I do observe that the crown case has not been logically and systematically presented. The evidence is scattered and at times disjointed. For example, there was no attempt whatsoever made to quantify or state the values of the Books that were not received by the various departments of the school on each count. The witnesses were content just to state that certain books were not received by them or their departments. These deficiencies or imperfections, however, do not render the evidence by the crown so weak as to merit no response from the accused. The invoices and cheque payments are not evidence of delivery of the items in question. There are also no order or requisition documents in support of these invoices and payments. If indeed the books were actually supplied, A2 and A6 must say so. Similarly if these books or items were actually received by the school, then A1 must give that explanation.
[16] Lastly, it is noted that the documentary evidence used by the various heads of departments was secondary material. There was, nonetheless, no objection to the admissibility of these documents by the defence and I do not think that this is a matter that should influence this ruling one way or the other. It is a non-issue. Again, the exact amounts that are involved in each of the four counts dealt with in the last segment of this judgment, are, I believe, matters that may or would be ascertained by way of argument - based of course on the evidence led before this court.
MAMBA J
For the crown: Mr A. Matsenjwa
For Accused one: Mr M. Mabila
For Accused 2 and 6: Mr B.J. Simelane
