S v Masoanganye and Others

• Jurisdiction: South Africa
• Judge: Kgomo JP, Rampai AJP and Hendricks J
• Judgment Date: 13 August 2013
• Hearing Date: 12 August 2013
• Docket Number: CAF 7/2012
• Citation: 2015 (2) SACR 577 (NWM)
• Court: North West High Court, Mahikeng
• Counsel: NL Skibi for the first appellant, instructed by the Justice Centre, Mahikeng. RJ Nkhahle for the second appellant, instructed by the Justice Centre, Mahikeng. P Venter for the third appellant, instructed by the Justice Centre, Mahikeng. NJ Carpenter for the state.

Kgomo JP (Rampai AJP and Hendricks J concurring):

The charges, convictions and punishment F

[1] Mr Andries Joe Masoanganye, the first appellant, was the Master of the High Court, Mahikeng. On 8/9 July 2010 he was convicted and sentenced as follows by Leeuw JP in the North West Division of the High Court (Mahikeng): G

[1.1]

Count 1: Theft on 12 April 2001 in the amount of R181 858 from the Guardian Fund, and was sentenced to 8 years' imprisonment. Henceforth identified as the Bophuthatswana IGI (Bop IGI) Insolvent Estate offence.

[1.2]

Count 2: Theft on 15 May 2001 in the amount of H R122 548,58 from the Guardian Fund, and was sentenced to 10 years' imprisonment. This offence related to Estate Late Lebopo.

[1.3]

Count 3: Theft on 28 August 2001 from the Guardian Fund in the amount of R400 000, and was also sentenced to 10 years' imprisonment. This count relates to Estate Late Shadi. I

[1.4]

Count 4: Theft on 19 October 2001 from the Guardian Fund in the amount of R113 138,22 and was similarly sentenced to 10 years' imprisonment. The money emanated from Estate Late Malatse (not Malatsi) and was due to African Bank or, more appropriately, to Unique Finance. J

Kgomo JP (Rampai AJP and Hendricks J concurring)

[1.5]

A Count 5: Theft on 4 April 2002 in the amount of R400 000 (compare count 3 in [1.3] above) from the Guardian Fund. A sentence of 10 years' imprisonment was repeated. The theft related to Estate Late Sehoone whose beneficiaries were his children from the Titis (not Titus) family.

The court a quo ordered all the sentences to run concurrently. The B effective sentence that the Master is serving since July 2010 is 10 years' imprisonment.

[2] The state alleged that the Master acted in cahoots with Ms Tlaleng Alina Mhlekwa, the third appellant, who was his assistant. Also complicit C in the scheme was held to be Mr Abdul Kader Ahmed, a sole legal practitioner who was accused of having laundered some of the ill-gotten gains through his firm's trust account. Mr Ahmed is the second appellant. A fourth accused, Mrs Grace Keatlaretse Mooketsi, was convicted only in respect of count 2 in that it was found that she colluded with the Master and was sentenced to pay a fine of R3000 or in default D of payment to serve three years' imprisonment. She has appealed neither her conviction nor her sentence.

[3] Attorney Ahmed, the second appellant, was convicted and sentenced as follows:

[3.1]

E Count 1: Guilty of the theft stated in [1.1] above and sentenced to eight years' imprisonment, two years of which were conditionally suspended for three years.

[3.2]

Count 4: Guilty of the theft stated in [1.4] above and sentenced to six years' imprisonment.

By virtue of these sentences having been ordered to run concurrently, F second appellant's effective sentence is six years' imprisonment. He is out on bail pending appeal.

[4] The third appellant, the Assistant Master, was convicted and sentenced as follows:

[4.1]

Count 1: Guilty as set out in [1.1] above and sentenced to eight G years' imprisonment whereof four years were conditionally suspended for three years. This is the only count on which she has been convicted. She is also out on bail pending appeal.

[5] Leave to appeal in respect of both their convictions and sentences was granted to the full court of the High Court by the court a quo, to the H three appellants on 10 May 2011. The fourth accused, Ms Mooketsi, accepted her fate.

[6] It is difficult to characterise the defence of the Master. It is amorphous and wavers between: He was duped into signing the cheques or I approving payment; he signed without checking; someone unknown to him kept a parallel system or a set of records which was presented to him as authentic but was later destroyed or disappeared; and even that he has done nothing wrong. Attorney Ahmed blames a now deceased so-called paralegal, Mr Patrick Mogorosi, for his woes or the surreptitious disappearance of his powers of attorney and other relevant documentation J from the Master's Office or from his office files. The Assistant

Kgomo JP (Rampai AJP and Hendricks J concurring)

Master claims that she had been barely six months in that office, was not A familiar with the workings in the Master's Office and signed the cheque in count 1, the offence she was convicted of, in blissful ignorance or in good faith.

The background information B

[7] Mr Jan Horn is an employee of the Department of Justice and Constitutional Development (DOJ) and attached to the Quality Assurance section. When the investigation pertaining to these cases was commenced, he had held this position for the past three years. Prior thereto his curriculum vitae reads: He served in various magistrates' C offices for 20 years, from being a clerk to magistrate. This was followed by 12 years in the Office of the Master of the High Court in Pretoria (Tshwane). The period is apportioned thus: Two years as control officer; and about 10 years as supervisor in respect of the Guardian Fund.

[8] The duties of a Quality Assurance Officer (QAO) entail examining the D records of magistrates' offices to assess whether the prescripts of the department are adhered to and to ensure that irregularities are eliminated. His training and experience placed him in good stead to testify how a Master's Office functions:

[8.1]

A Remittance Register (the R/R) is kept, in which is entered all cheques, cash and revenue stamps — in fact all negotiable instruments. E

[8.2]

The registry section in the Master's Office opens the post upon receipt. The staff members in this section are appointed by the Master. They are the ones who enter the remittances. The specific amount in respect of each negotiable instrument is reflected. F

[8.3]

The registry clerk provides the register, together with the negotiable instruments, to a duly assigned officer in the Guardian Fund office. This officer checks whether the particulars in the register correspond in every respect with the instruments and G signifies his/her imprimatur for later inspection with a signature and a date.

[8.4]

Upon the completion of this verification the register and liquid instruments are taken to a cashier who issues a corresponding receipt to every payee. The receipt numbers are entered in the relevant columns of the remittance register for control purposes. H

[8.5]

Next, an account card, colloquially termed a 'blue card' due to its colour, is opened for every payment received. This is in fact more of a spreadsheet than a card. According to Mr Horn, if there are three minor beneficiaries, for example, an account card must be opened for each one of them with the amount due to each one specified on the account card. I

[8.6]

When payment is made, an entry to that effect must be reflected on the account card. The purpose of the payment must also be recorded, for example, 'maintenance'. The cheque number and the amount paid out must in addition be entered on this account/blue card. J

Kgomo JP (Rampai AJP and Hendricks J concurring)

A [9] With this uncontested background evidence it is vital to examine how claims are processed. The importance of this exercise reposes in the fact that it enables the court to determine whether the appellants, within their respective fields of endeavour or responsibility, did what was required of them. Regard could be had to the various layered documentation which serves as checks and balances. Mr Horn testified that there are essentially B two accounts in the Guardian Fund:

[9.1]

An interest-bearing account for minors and people who lack mental capacity, like mentally ill persons. In such cases interest is paid to the beneficiaries with their claims. For maintenance a form J341 is completed when the parent or guardian requisitions C money for an under-21-year-old.

[9.2]

A non-interest bearing account is used for creditors who could not be traced by the liquidator but who subsequently claim a refund from the Guardian Fund. As the account suggests, only the capital amount is paid out. When a claim is made in this instance the creditor himself/herself may simply write a letter D and dispatch same with a copy of their identity document to the Guardian Fund. An attorney authorised by means of a power of attorney may also intercede.

[9.3]

For inheritance a J251 form is completed. The Master, or in the Master's absence the Assistant Master, determines what premium E is to be paid monthly or bimonthly or half-yearly to a claimant, depending on the need. Inheritance is claimed by a beneficiary who has attained the age of majority.

[9.4]

When a claim for inheritance is lodged, the Assistant Master must peruse the relevant estate file to establish whether the rightful beneficiary has made the requisition. This incumbent F checks the contents of the file against the entries on the account/blue card and further collates those with the particulars on the J251 form. These are some of the built-in checks and balances to obviate improper payment.

Count 3: Estate Late Shadi G

[10] I find it convenient to deal with the conviction relating to Estate Late Shadi first. It expedites comprehension of the modus operandi devised by the perpetrators of the theft because direct evidence in this H regard was adduced. Surprisingly, only the Master was convicted on this count. Ms Bontle Shadi was called as a witness by the state in terms of s 204 of the Criminal Procedure Act 51 of 1977 (CPA). It is common cause that an amount of R400 000 was paid out to Ms Shadi, the widow of the late Karabo Shadi. A cheque for the stated amount was signed on 28 August 2001 by the Master and accused 5, Mr Theo Mogapi, who I was acquitted on all the charges he faced. Mr Mogapi's name features prominently throughout this judgment. He...