S v Madikela

• Jurisdiction: South Africa
• Judge: Kotzè JA Galgut AJA and Smith AJA
• Judgment Date: 02 May 1993
• Citation: 1994 (1) SACR 37 (BA)
• Counsel: P Yutar SC for the appellant J Smit SC for the State
• Hearing Date: 24 March 1993

Kotzé JA:

Six adult male persons were tried by Hendler J in the General Division on an indictment which contained (a) a main and (b) an alternative count as follows:

(a)

in that during January 1991 they unlawfully and intentionally attempted to steal the amount of R45 million, the property or in D the lawful possession of the Department of Finance of Bophuthatswana; alternatively

(b)

in that during the month aforementioned they unlawfully and intentionally stole two blank Bophuthatswana Government cheques, the property or in the lawful possession of the Department of Finance of Bophuthatswana. E

Pleas of not guilty were entered on behalf of all the accused on both the main and the alternative counts. The said pleas notwithstanding, they were all found guilty of attempted theft. The present appellant, who was accused 6 at the trial, was sentenced to 13 years' imprisonment of which F three years were suspended on certain conditions. He alone has appealed against conviction and sentence pursuant to leave granted by Stewart CJ. Reference to the sentences imposed on the remaining five accused (hereinafter referred to as they were in the Court a quo, viz accused 1, 2, 3, 4 and 5 respectively) will be made later in the course of this judgment.

Facts which are common cause or not substantially in dispute are as G follows:

1.

At all relevant times accused 1 was employed by the Department of Finance of Bophuthatswana as a programmer and had access to blank cheques used by the said Department for payment of, inter alia, salaries of Government employees.

2.

H During January 1991 accused 1 stole, at the said Department, two blank Bophuthatswana Government cheques numbers 947999 and 948000. The said cheques were, according to their tenor payable by the Standard Bank, Mmabatho.

3.

As a result of an earlier arrangement with accused 2, accused 1 handed the two cheques to accused 2. I

4.

Accused 2, who was previously approached by accused 3, who had discussed with him the possibility of obtaining Government cheques, in turn handed the cheques to accused 3.

5.

Prior to all this, accused 3 and accused 4 had discussed their financial problems and they embarked on a plan to obtain Government J cheques and to cash same. Accordingly, after accused

Kotzé JA

A 3 received the two cheques from accused 2, he handed them to accused 4.

6.

Accused 4 then approached accused 5 with the request to help him to facilitate the cashing of the cheques. Together they approached the appellant with the same request.

7.

B Appellant, being a businessman, had the necessary expertise to achieve this object and agreed to be of assistance.

8.

Subsequent to the events described in 2-7 above appellant introduced Tony McGeer (McGeer) to accused 4.

9.

By prior arrangement and after the aforesaid introduction, accused 4 and appellant met McGeer at his place of business. C

10.

At the said meeting McGeer promised accused 4 and appellant that a Trust Bank manager would assist in cashing the cheques.

11.

McGeer told appellant that the Trust Bank manager would make the necessary arrangements with the Standard Bank manager.

12.

McGeer was promised a payment of R5 million. D

13.

On 3 January 1991 McGeer, at the request of appellant, met him at his place of business. Appellant opened a briefcase, took out the aforesaid two blank Government cheques, mentioned they were stolen and told McGeer that he had already made arrangements for R45 million. E

14.

Appellant requested McGeer to have the cheques deposited in his (McGeer's) account, and after having received his R5 million, to pay the balance over to him.

15.

Unbeknown to appellant McGeer agreed with the police for the setting of a trap.

16.

F On 16, 17 and 18 January 1991 telephone conversations took place between appellant and McGeer during the course of which the former told the latter not to make trouble for him and, that if he should land into any trouble on account of the R45 million he would kill him. McGeer's response was that he would be proceeding with the plan and that he would be ready any time.

17.

G During the afternoon of 18 January 1991 appellant, together with accused 4 and accused 5, came to see McGeer at his place of business. Appellant again exhibited the two cheques to McGeer.

18.

Appellant asked McGeer whether he had a computer to be able to print the cheques. McGeer indicated that he was not in a position to print the cheques himself. Appellant thereupon asked McGeer H whether he did not perhaps know anybody who could do the printing of the cheques.

19.

After McGeer had summoned De Klerk the appellant took out the two cheques and showed these to De Klerk.

20.

I Appellant requested De Klerk for help and indicated that there should not be any problems because there had already been a case in the past involving R180 million which caused no problems.

21.

Appellant promised De Klerk...