S v Boesak

• Jurisdiction: South Africa
• Judge: van Heerden ACJ, Smalberger JA, Olivier JA, Farlam AJA, Mpati AJA
• Judgment Date: 12 May 2000
• Citation: 2000 (3) SA 381 (SCA)
• Docket Number: 105/99
• Counsel: M C Maritz SC (with him J G Cilliers) for the applicant/appellant. J C Gerber for the State.
• Court: Supreme Court of Appeal

Smalberger JA, Olivier JA et Farlam AJA

[1] This matter involves an application for leave to appeal and, H if granted, the determination of the appeal itself.

[2] The applicant is a former minister of the Dutch Reformed Mission Church in Bellville. He was intimately involved in South African politics. He was elected as President of the World Alliance of Reformed Churches (WARC) in 1982. In 1984 the church council of the I applicant's congregation decided to establish a trust as an extended ministry of the Bellville South Mission Church. In October 1985 this came into being as 'The Foundation for Peace and Justice' (FPJ). The applicant became a trustee and director of the FPJ. He also operated bank accounts under the name of the WARC although he was not accountable to the parent J

Smalberger JA, Olivier JA et Farlam AJA

organisation for the funds in such accounts. These accounts, unless the context requires otherwise, will be referred A to in the singular as the WARC account.

[3] The objective of the FPJ was in essence to ameliorate the effects of government policy at that time. Several prominent international religious and humanitarian organisations donated substantial amounts to South African organisations such as the B FPJ to further this objective. Moneys were also donated to the WARC account for this purpose. Many of these donor organisations were based in Scandinavian countries. Danchurch, to mention but one, a religious organisation in Denmark, provided financial assistance to persons in countries where, in its view, human rights were being breached. Other C donors included the Church of Norway, the Olaf Palme Centre and the Swedish International Development Authority (SIDA).

[4] The evidence indicates that the applicant was trusted by these organisations to deal with the donated money in accordance with D their wishes and aims. There can be no dispute that the applicant was, in the legal sense, in the position of a trustee.

[5] The accounts of the FPJ were audited annually. However, this method of donor protection proved hopelessly ineffective. It appears E that the auditors reposed too much trust in the administrators of this fund, including the applicant. The ordinary checks and balances that would have ensured that the donor money reached its intended recipients were sorely lacking. Large amounts of these donor funds found their way into the pockets of corrupt employees of the various trusts of which the applicant was a trustee. F

[6] In 1988 the Children's Trust was set up for the benefit of child victims of apartheid at the instance of the American musician, Mr Paul Simon (Simon), who donated a large sum of money towards this objective. At the outset there were three trustees responsible for administering this trust, namely the applicant, Mrs Mary Burton and G Archbishop Desmond Tutu.

[7] In 1990 the ties between the FPJ and the Mission Church were severed. Also in 1990 the applicant resigned as President of the WARC, the remaining WARC account was closed and another account, the Urban H Discretionary Account (UDA), was opened. The applicant's lifestyle changed as well. He divorced his first wife, announced his intention to marry his present wife, paid off a number of her debts and acquired a house, first in Vredehoek and later in the more affluent suburb of Constantia. The more relaxed political climate at that time is also I relevant. As a result thereof a number of funders decided to support more specific developmental projects of the FPJ instead of giving general donations for its work. In 1994 the applicant was appointed Minister of Economic Affairs in the Western Cape Government and the activities of the FPJ practically ground to a halt. J

Smalberger JA, Olivier JA et Farlam AJA

[8] In 1998 the applicant appeared before the A Court a quo on 32 charges of fraud and theft relating to the funds under his administration. The State contended that these donor funds, referred to above, were donated mainly by foreign donors to various organisations with which the applicant was associated. It was further alleged that the applicant, through a web of theft and fraud, had misappropriated these funds. The gist of the applicant's defence B in respect of the counts on which he was convicted was that he was entitled in his own right to the funds alleged to have been stolen or that he had used them for the purposes for which they had been donated.

[9] At the close of the State's case the applicant was C discharged in respect of five of the 32 charges. At the end of the case the trial Court, Fox- croft J and assessors, found the applicant guilty of three counts of theft and one count of fraud. The applicant was sentenced to a period of two years' imprisonment in respect of each count. However, the sentences in respect of the convictions on count 4 (fraud) and count 5 (theft) were to run concurrently, with the D result that the applicant was to serve a total of six years' imprisonment. On being refused leave to appeal by the trial Judge, the applicant petitioned the Chief Justice for leave to appeal to this Court against his convictions only.

[10] The Judges who considered the application for leave to appeal to this Court referred the application to a Full Court for E consideration and hearing of argument by virtue of the provisions of s 21(3)(c)(ii) of the Supreme Court Act 59 of 1959. Because the success or otherwise of the application for leave to appeal depends, inter alia, on the prospects of eventual success of the appeal itself, the argument on the application would, to a large extent, have to address the merits of the appeal. For this reason the F parties were requested to argue the appeal as though the application for leave had been granted.

[11] It is trite that different considerations come into play when considering an application for leave to appeal and adjudicating the appeal itself. In the former instance, the applicant must convince G the Court of appeal that he or she has a reasonable prospect of success on appeal. In the latter, the Court of appeal has to decide whether the appellant's guilt has been established beyond reasonable doubt. Success in an application does not necessarily lead to success in the appeal.

[12] In the present case, and after full argument on behalf of H the applicant and the respondent has been heard, it cannot be said that the applicant has not shown reasonable prospects of success in the appeal. The issues that were argued are involved and much can be said for the arguments advanced on behalf of the applicant. In the circumstances we consider it to be appropriate to grant leave to the I applicant to proceed with the appeal against the convictions on all the contested counts. That opens the door to a full consideration of the merits of the appeal itself. The applicant will henceforth be referred to as 'the appellant'.

[13] It is apposite at this stage to state, once again, the ambit of the concept of reasonable doubt and of the approach of this Court in J

Smalberger JA, Olivier JA et Farlam AJA

applying that concept. It was elucidated in S v Ntsele 1998 (2) SACR 178 (SCA) at A 182b - f by Eksteen JA as follows:

'Die bywyslas wat in 'n strafsaak op die Staat rus is om die skuld van die aangeklaagde bo redelike twyfel te bewys - nie bo elke sweempie van twyfel nie. In Miller v Minister of Pensions [1947] 2 ALL ER 372 op 373H stel Denning R (soos hy toe was) dit soos volg:

"It need not reach certainty, but it must carry a high degree B of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course it is possible, but not in the least probable', the case is proved beyond reasonable doubt." C

Ons reg vereis insgelyks nie dat 'n hof slegs op absolute sekerheid sal handel nie, maar wel op geregverdigde en redelike oortuigings - niks meer en niks minder nie (S v Reddy and Others 1996 (2) SASV 1 (A) op 9d - e). Voorts, wanneer 'n hof met omstandigheidsgetuienis werk, soos in die onderhawige geval, moet die hof nie elke brokkie getuienis afsonderlik betrag om te besluit hoeveel gewig daaraan geheg moet word nie. Dit is die kumulatiewe indruk wat al D die brokkies tesame het wat oorweeg moet word om te besluit of die aangeklaagde se skuld bo redelike twyfel bewys is (R v De Villiers 1944 AD 493 op 508 - 9).'

[14] Counts 4 and 5 arise from Simon's donation to the Children's Trust, mentioned in [6]. The third conviction, on count 9, concerns the theft of money donated by SIDA for a project called the 'audio-visual project'. The fourth conviction, on count 31, relates E to funds which the appellant is alleged to have stolen from the FPJ. We deal with each conviction in turn.

Counts 4 and 5 F

[15] It is common cause that Simon donated a sum of money for the setting up of the Children's Trust of which the appellant was a trustee and effectively the controller. However, the actual amount donated to the trust is in dispute.

[16] The following facts are not in issue. An amount of G R682 161,21 was paid on behalf of Simon via a credit transfer from the Presbyterian Church in the USA into the WARC account. The relevant document evidencing receipt of payment indicated that it was a 'religious or charitable transfer'. That document was signed by Ms T Sacco ('Sacco') who worked for the appellant at the time. Only R423 000 of this money was later transferred from the WARC account to H the Children's Trust. The balance of R259 161,21 remained in the WARC account.

[17] The Court a quo found that the appellant had...