S v Xego

JurisdictionSouth Africa
JudgeNG Beshe J
Judgment Date11 October 2018
Docket NumberCA&R30/2016
CourtEastern Cape Division
Hearing Date10 May 2017
Citation2018 JDR 1818 (ECG)

Beshe J:

[1]

The appellants stood trial in the Regional Court, East London on the following charges:

Count 1

Fraud:

IN THAT during August 2007, and in East London, in the Regional Division of the Eastern Cape, the accused acting in the execution of a conspiracy between themselves and persons to the state unknown, with the common intent to defraud, did unlawfully and falsely misrepresent to Dr Bothma and/or to the Department of Home Affairs that Accused no 1 was dead.

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Beshe J

AND DID by means of the aforesaid misrepresentation, induced the said Dr Bothma and/or the Department of Home Affairs, to their loss and/or prejudice, actual or potential, to issue a death certificate in the name of Accused no 1

WHEREAS the accused, when they made the misrepresentation as aforesaid, well knew that Accused no 1 was still alive.

COUNT 2

AGAINST ACCUSED NO 1 ONLY (in terms of Section 156 of the Criminal Procedure Act, 51 of 1977)

FRAUD:

In that on or about 19 July 2007 and at or near Port Elizabeth in the Regional Division of the Eastern Cape, accuse no 1 did unlawfully, falsely and with the intention to defraud, directly or by implication, misrepresent to the Department of Home Affairs that he was applying for a South African identity document for the first time and that an identity number had not yet been allocated to him.

And by means of the said misrepresentations induced the Department of Home Affairs to its actual and or potential prejudice to consider processing the application and to issue a new identity document to him.

Whereas when the accused made the application be well knew that he had previously been issued with an identity document.

AND THUS the accused did commit the crime of FRAUD.

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Beshe J

COUNT 3

FRAUD READ WITH SECTION 51 OF THE CRIMINAL LAW AMENDMENT ACT 105 OF 1977.

IN THAT in or during the years 2007 to 2008, and in East London, in the Regional Division of the Eastern Cape, the accused did unlawfully, falsely and with intent to defraud misrepresent to Discovery Life that Accused 1 was dead and that accused no 2 was entitled to claim against policies 5130088318 and 5130090574

AND DID by means of the aforesaid misrepresentation, induce Discovery Life and/or its employees, to their prejudice, actual or potential, to process and consider the death claim in respect of policies 5130088318 and 5130090574

WHEREAS the accused, when they made the misrepresentations as aforesaid, well knew that:

Accused 1 was still alive; and/or

Accused no 2 was not entitled to the benefits in terms of the policies.

COUNT 4

FRAUD

In that on 02 February 2007 and at near East London in the Regional Division of the Eastern Cape, the accused unlawfully, falsely and with the intention to defraud, misrepresented to Santam Insurance and/or its employees that a

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Beshe J

vehicle, a Chico golf with registration number DCG 692 EC, had been stolen and that accused no 2 was entitled to institute a claim for the loss of the vehicle against policy number 39810105731

And by means of the said misrepresentations induced Santam Insurance and or its employees, to their prejudice, actual and/or potential, to accept the claim and to pay out the amount of R 59 926-58 in settlement thereof

Whereas when they so misrepresented the accused well knew that the vehicle had not been stolen, and that accused no 2 was not entitled to institute a claim on the basis that it had been stolen and to receive payment from Santam Insurance.

COUNT: 5

FRAUD

ONLY AGAINST ACCUSED NO 2 (The provisions of Section 156 of the Criminal Procedure Act, 51 of 1977, having application)

In that on 31 January 2007 and at or near Cambridge, East London, in the Regional Division of the Eastern Cape, accused no 2, did unlawfully, falsely and with the intention to defraud, misrepresent to the South African Police Services and or Inspector Vuyani Matyaleni that her vehicle, a Chico golf with registration number DCG 692 EC, had been stolen outside her workplace

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Beshe J

And by means of the said misrepresentations induced the South African Police Services and or Inspector Vuyani Matyaleni, to their actual and or potential prejudice, to register the complaint, open a docket with reference CAS: Cambridge 15/02/2007 and investigate the case.

Whereas when the accused lodged the complaint she well knew that her vehicle ([Chico golf with registration number DCG 692 EC] had not been stolen but that she had voluntarily handed the keys of the aforementioned vehicle to Sipho Nkumanda.

ALTERNATIVE TO COUNT NO 5

ATTEMPTING TO DEFEAT THE ADMINISTRATION OF JUSTICE

THAT the accused is guilty of the crime of Attempting to Defeat the Administration of Justice

IN THAT upon or about the 31ST day of January 2007 and at or near Cambridge, East London, in the Regional Division of the Eastern Cape, the accused did unlawfully and with intent to defeat or obstruct the course of justice, commit an act, to wit, lay a false complaint with the South African Police Services and or Inspector Vuyani Matyaleni, claiming that her vehicle [Chico golf with registration number DCG 692 EC] had been stolen outside her workplace when in fact it was not.

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Beshe J

[2]

The trial got underway on the 9 January 2012 after the appellants pleaded not guilty to all the charges against them. At the conclusion of the trial and on the 13 January 2015, the appellants were found guilty on all the main charges they were facing. First appellant was sentenced as follows:

Count 1: 3 years imprisonment.

Count 2: 3 years imprisonment.

Count 3: 15 years imprisonment in terms of Section 51 of Act 105 of 1997.

Count 4: 4 years imprisonment.

The Magistrate ordered that the sentences imposed in respect of Counts 1, 2 and 4 should run concurrently with the sentence in respect of Count 3.

[3]

The first appellant was granted leave to appeal against both the convictions and the sentences, whereas the second appellant was only granted leave to appeal against the convictions by the court a quo.

[4]

The grounds upon which first appellants' appeal is premised, are in essence the following:

The state failed to prove that he acted in the execution of a conspiracy with second appellant or persons unknown to the state, with a common purpose to commit fraud in respect of Count 1.

In respect of Count 2, the court a quo is assailed for accepting evidence that suggested first appellant knowingly and intentionally completed the late registration of birth document.

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Beshe J

The conviction in Count 3 is assailed on the basis that there is no evidence that first appellant was aware that a death claim in respect of his Discovery Life policy was submitted for payment to Discovery Life.

It was further argued that the state failed to prove beyond reasonable doubt that first appellant was party to conspiracy to have the motor vehicle that is the subject matter in Count 4 reported stolen fraudulently so.

[5]

The second appellant's grounds for appealing the convictions are inter alia that:

The state did not prove the charges against her beyond reasonable doubt.

There was no evidence that she associated herself in anyway with reporting first appellant's purported death or submitting a death claim/s to Discovery Life.

Both in supplementary heads of argument filed on behalf of second appellant and in argument before us, submissions were made in support of the assertion that the state did not adduce sufficient circumstantial evidence from which the court could conclude that the only inference to be drawn was that second appellant was complicit in the commission of the offences charged.

[6]

The appellants did not testify in their defence and did not call any witnesses. In this regard, counsel for the appellants submitted that this did not put the appellants at risk of conviction, because the state's evidence was not of a nature or weight that called for an answer or explanation from them.

[7]

It is common cause that on the 1 August 2007, Dr Bothma who had treated first appellant previously was approached by two people. A man who claimed to be first appellant's brother, and a woman, both of which he could not identify, visited his rooms. The gentleman who had introduced himself as first

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Beshe J

appellant's brother reported that the latter had passed away. And that in order to issue the death certificate, the officials at the Home Affairs Department required a B11663 form and requested him to complete one for them. He asked the gentleman questions relating to how first appellant died. Having received that information, he deduced that he must have died from a burst artery aneurism and duly completed the requisite form and categorised the death as a natural one or one brought about by natural causes.

[8]

It is also common cause that prior to the two people approaching Dr Bothma on the 1 August 2007, he had seen first appellant as a patient on previous occasions. Subsequent to completing the B11663 form in question Dr Bothma received telephone calls from a person who identified himself as first appellant's brother. He was enquiring whether Dr Bothma was aware of any reason why proceeds from the Discovery Life Policy had not been paid to first appellant's family. He reported that he had not received any correspondence from Discovery Life and advised the caller to seek legal advice in this regard. Subsequent to that Dr Bothma received a letter from Cooper Conroy Bell and Richards Inc. Attorneys requiring him to furnish them with first appellant's medical records.

[9]

The letter was penned by Ms Bulube, a partner at the abovementioned firm of attorneys. The letter recorded that Ms Bulube was acting on behalf of second appellant, who is the surviving spouse of the first appellant who died on 1 August 2007. That second appellant's claim had been...

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