THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Non-reportable
Case No: 1107/2020
In the matter between:

AZWIFANELI GEORGE MPHANAMA
APPELLANT

and

THE STATE
RESPONDENT

Neutral citation:
Mphanama v The State (1107/2020) [2022] ZASCA 11 (24
January 2022)

Coram:

Zondi and Hughes JJA and Weiner, Unterhalter and Molefe AJJA

Delivered:
This judgment was handed down electronically by circulation to
the parties' representatives via email, publication on the Supreme
Court of Appeal website and release to SAFLII. The date and time
for hand-down is deemed to be 11h00 on 24 January 2022.

Summary:
Criminal law – fraud – submission by appellant, a magistrate, of
false claims in terms of motor vehicle benefit scheme – prima
facie evidence– approach of court discussed – appellant
choosing not to testify – court finding that he had a case to
answer. Defeating/obstructing the course of justice – reducing
traffic fine before trial after prosecutor refused to do so – not
proven beyond a reasonable doubt.

ORDER
On appeal from: Full Court of Limpopo Division of the High Court, Polokwane
(Semenya J, Makgoba JP and Kaganyago J concurring):
The appeal against the convictions on counts 15 – 18 is dismissed.
The appeal against the conviction on count 21 is upheld and the conviction is
set aside.

JUDGMENT

Weiner AJ (Zondi, Hughes JJA, Molefe and Unterhalter AJJA concurring)
Introduction
[1] The appellant, Azwifaneli Mphanama, was charged with three other accused,
being Arnold Tshililo Mabirimisa (Mr Mabirimisa), Makhubu Harriet Phiri (Ms Phiri) and
Mabirimisa Bus Service (Pty) Ltd (MBS). The appellant was accused 1, Mr Mabirimisa
was accused 2, Ms Phiri was accused 3, and MBS was accused 4.

[2] They were charged with 21 counts in respect of the offences of corruption in
contravention of s 8 of the Prevention and Combating of Corrupt Activities Act 12 of
2004 (counts 1-8); fraud (counts 9-18); money laundering in contravention of s 4 of the
Prevention of Organised Crime Act 121 of 1999 (counts 19-20), and defeating the
ends of justice (count 21).

[3] The trial took place in the Limpopo Division of the High Court, Thohoyandou
(the trial court) in February 2016. The appellant was granted a discharge in terms of
s 174 of the Criminal Procedure Act 51 of 1977 (the CPA) in respect of all charges,
save for counts 15-18 and count 21. He was convicted on counts 15-18 and sentenced
to 18 months’ imprisonment, suspended for three years on condition that he:
‘1)
. . . repays the amount of R3 638.95 to the Registrar of [the] court on or before
7 September 2017; and

2)
. . . is not convicted of an offence of which dishonesty is an element and in respect of
which the [appellant] is sentenced to imprisonment without the option of a fine.’
On count 21, the appellant was convicted and fined R12 000 or six months’
imprisonment, which fine was to be paid in four instalments of R3 000 each.

[4] An appeal to the Full Court of the Limpopo Division of the High Court was
dismissed on 6 May 2020. Special leave to appeal to this Court was granted on
25 August 2020.

The indictment
[5] On counts 9-18, it was alleged that the appellant, in the period from May 2008
to March 2009 (the period), in the Regional Division of Limpopo, ‘in his capacity as the
Head of Office at Dzanani Magistrates’ Court, unlawfully and falsely, and with the
intention to defraud, gave out and pretended to the Department of Justice and
Constitutional Development and/or the Department of Justice and Correctional
Services’ (the Department) that:
(a)
When undertaking official trips during the period appellant utilised a Toyota
RAV4 1800cc petrol multi-purpose vehicle, a RAV4 (the RAV 4); and/or
(b)
He was entitled to be compensated by the Department in terms of General
minute 19 of 2008 for official trips undertaken during the period in terms of the
prescribed tariffs for the RAV4; and/or
(c)
The claims submitted by the appellant for the kilometres driven were supposed
to be calculated in terms of the prescribed tariffs for the RAV4; and
(d)
When making the representations, the appellant knew that:
(i)
The vehicle which he used to undertake the official trips during the period
was a Cadillac 200cc petrol sedan (the Cadillac) and not the RAV4 and
he was not entitled to submit claims on the tariff applicable to the RAV4,
as he did not utilise that vehicle for undertaking official trips;
(ii)
The amounts that he was entitled to claim and receive from the
Department as compensation for the official trips undertaken during the
period were supposed to have been calculated in terms of the tariffs
prescribed for the Cadillac.
(e)
As a result of the aforesaid misrepresentations, which the Department
accepted, it processed the claims and paid the appellant in terms of the tariff

applicable to the RAV4, instead of processing the claims in terms of the tariffs
prescribed for the Cadillac. This was to the prejudice of the Department in that
the difference between the amount claimed and received, and the amount
which should have been claimed and paid out was R10 353.09.

[6] In respect of count 21 – defeating or obstructing the course of justice – the
appellant was indicted on the following facts. During or about May 2009, the appellant,
in his capacity as a magistrate, unlawfully and with the intent to defeat or obstruct the
course of justice, reduced a fine of R1 000 to an amount of R700 in respect of a written
notice issued by a traffic official to one Herman Mudau. Mr Mudau had approached
the office of the prosecutor with an application for a reduction of the amount of the fine,
and the application was rejected by the prosecutor.

Admissions made in terms of s 220 of the CPA
[7] The admissions made by the appellant which are relevant to this appeal include
the following:
‘1.6
By virtue of his position as Head of the Office, [the appellant] was in terms of the motor
vehicle financing benefit for magistrates entitled to be reimbursed for kilometres
travelled [on official business];
1.7
General minute 19 of 2008 . . . makes provision for the amounts that Magistrates can
claim in respect of kilometres travelled;
1.8
The General minute further prescribes tariffs for different categories of vehicles in
terms of which the amount to be claimed as compensation for official trips undertaken
by the Magistrates are determined;
1.9
A Magistrate who qualifies for the travelling allowance is obliged to submit particulars
of the vehicle he/she intends to utilise for official trips to the Department;
1.10
A Magistrate cannot without the authority of the Department utilise a vehicle other than
the one in respect of which the particulars were submitted to the Department when
undertaking an official trip.’

Evidence of the State
Magistrate Nditsheni Baldwin Makamela
[8] Mr Makamela was employed by the Department as a magistrate. He was the
Acting Head of Office at the Magistrate’s Court at Dzanani, to which position he was

appointed in March 2015. Prior to his appointment, the Head of Office was the
appellant.

[9] Mr Makamela testified that, prior to April 2008, the appellant had driven a RAV4
for all his official duties. However, in approximately late April or early May 2008, the
appellant informed him that he had bought the Cadillac vehicle. Mr Makamela and Mr
Nduambi, a messenger, went outside to see the Cadillac. From late April 2008, the
appellant only drove the Cadillac. The appellant informed Mr Makamela that he had
sold the RAV4 to Ms Phiri. After that date, Mr Makamela never saw the appellant
driving the RAV4 again – it was no longer in his possession; it was in the possession
of Ms Phiri.

[10] Mr Makamela was questioned by the appellant’s counsel as to whether or not
the sub-regional head at Thohoyandou, Magistrate Mudau1, would have approved
claims from the appellant if he did not see the appellant drive the vehicle in respect of
which the claim was made. Mr Makamela responded that Magistrate Mudau was not
present, and did not see the vehicle that the appellant was driving, as the appellant
would travel from Dzanani, where he was based, to Louis Trichardt,2 where he was
assisting Magistrate Molokomme, who was new. On each occasion, the appellant was
seen driving the Cadillac. Magistrate Mudau remained in Thohoyandou.

[11] Mr Makamela stated that the claim forms are certified by the claimant. The
appellant would not take the motor vehicle to Magistrate Mudau. The messenger of
the court would take the forms to Magistrate Mudau for approval. He would certify
them without inspecting the actual vehicle which was used. There is a declaration
attached to the claim forms which would be signed by the claimant and an element of
honesty was expected from a claimant.

Magistrate Bernard Jacques Stapelberg
[12] Mr Stapelberg was a magistrate with the Judicial Quality Assurance Office,
situated at the Magistrates Commission in Pretoria. Part of the functions of his office

1 Referred to with his title, to distinguish him from Mr Herman Mudau.
2 In 2003, the Minister of Arts and Culture approved the change of name from ‘Louis Trichardt’
to ‘Makhado’.

was to deal with the conduct of magistrates. He was appointed to investigate various
complaints lodged against the appellant.

[13] Mr Stapelberg disputed that, in order to submit a claim for travel expenses, the
particulars of that motor vehicle have to be registered with the Department. He stated
that one could use any vehicle, as long as the correct claim was made. He further
stated that there would be nothing irregular in interchanging motor vehicles, as long
as the kilometres claimed and the tariff used belonged to the vehicle being used.
Mr Stapelberg referred to the claim forms submitted, which showed that the appellant
would often travel to Louis Trichardt. This evidence was confirmed by both Mr
Makamela and Mr Molokomme.

[14] Mr Stapleberg handed in a letter which the appellant had written on 19 October
2009 (the October letter) in response to the complaints made against him. This letter
refers to complaints made by ‘an anonymous concerned citizen’ as well the minute of
the Chief Magistrate dated 15 October 2009. In dealing with the complaints, the
appellant stated the following in regard to the utilisation of a vehicle and the claims
made:
‘I find it very strange for a magistrate who to date does not understand how the motor financing
scheme works. I suggest he reads the guidelines on the manual for a better understanding.
During the period under review, I owned a RAV4 1.8 and a black Cadillac 2 litre engine, of
which I had submitted registration certificate for a RAV4 to the Sub-Regional Head for official
use. I used to interchange the two motor vehicle, although the two motor vehicles differed in
their engine capacity, I never took a chance of claiming with the 2 litre engine, as I know I
would be defrauding the state neither would the Sub-Regional Head approve my claims. The
sub-regional head approved my genuine claims as he knew the vehicle which I had submitted
its certificate. The months September, October, November, the RAV4 was still my property.’
The reference to the magistrate who does not understand how the scheme works, is
a reference to Mr Makamela.

Magistrate Luxon Ramavhale
[15] Mr Ramavhale was appointed as the acting sub-cluster head at Thohoyandou,
under Magistrate Mudau, who was the cluster-head. He testified that magistrates
participating in the vehicle scheme had to indicate which motor vehicle they would be
using by forwarding a certificate to the sub-cluster office, indicating which motor

vehicle they would be using. The registration certificate was required in terms of the
circular to prevent fraudulent claims. In order to use another motor vehicle, an
application was to be made by the magistrate, attaching the licence, and this
application would go to the office of the sub-cluster head, who would forward it to the
office of the Chief Magistrate.

[16] It was permissible to use two motor vehicles, as long as the registration
particulars were forwarded to the office of the sub-cluster head. Mr Ramavhale also
testified that the Head of the Magistrates Office would sign the trip authorisations and
would approve these authorisations for the subordinates. All heads of office would
submit the trip authorisations to the sub-cluster head for approval of their trips. These
authorisations were submitted through the messenger of the court, and not in person.

[17] According to Mr Ramavhale, it was not possible to verify whether the particular
magistrate had indeed undertaken the trip, or which vehicle they had used. They would
rely on their honesty. He was unaware as to whether Magistrate Mudau, who was the
sub-cluster head, followed the rules meticulously in regard to whether both motor
vehicles must be registered. He could only give evidence as to what the procedure
should have been, not what procedure was followed by Magistrate Mudau.

Magistrate Kwena Moses Molokomme
[18] Mr Molokomme also testified in regard to the manner in which the magistrates’
motor vehicle finance scheme operated. His evidence corroborated that of Mr
Makamela and Mr Ramavhale, but was, in certain respects, different to that of
Mr Stapelberg – but not in any material respect as to whether or not the correct claims
were made. This issue did not form part of the appellant’s defence. The admissions
made by the appellant in terms of s 220 of the CPA were the ones taken into account
in this regard. It was common cause that a magistrate is required to submit claims for
compensation only on the tariff of the vehicle actually used. No claims were made in
respect of the Cadillac.

[19] Mr Molokomme confirmed the version of Mr Makamela, in that he testified that
during October 2008, after Mr Molokomme’s appointment in the Makhado Court,
where the appellant was the Acting Head, the appellant assisted him in looking for

accommodation. He followed the appellant in his own vehicle, whilst the appellant
drove the Cadillac. The appellant would often come from Dzanani to assist him in
Makhado and he was always driving the Cadillac.

The appellant’s version
[20] Various aspects of the appellant’s version were put to Mr Makamela, Mr
Stapelberg, Mr Ramavhale and Mr Molokomme. The appellant’s version (which was
not confirmed under oath, nor tested in cross examination, thus having no evidentiary
value as the appellant chose not to testify) was, in summary, the following:
(a) The appellant test drove the Cadillac from April to May 2008.
(b) He would drive the RAV4 and the Cadillac, but he only claimed for when he drove
the RAV4, as it was the vehicle registered with the Department.
(c) He sold the RAV4 to Ms Phiri in September 2008. There was an agreement
between Ms Phiri and the appellant that the appellant could continue using the RAV4,
even after he had sold it to her.
(d) Magistrate Mudau would not have certified the appellant’s claims in respect of the
claims for May to December 2008, unless he was satisfied that the appellant was
driving the RAV4.
(e) He borrowed the RAV4 from Ms Phiri for the period of January 2009 to March 2009.
(f) He did not change the particulars of the vehicle registered for official trips with the
Department because he borrowed the RAV4 from Ms Phiri for all official trips.

The trial court
[21] The trial court found that paragraph 5 of the October letter contained an
admission by the appellant that he owned both vehicles and used them
‘interchangeably’, even though they had different engine capacities. The appellant
stated that he owned the RAV4 until November 2008, but he was also the owner of
the Cadillac before that time. The RAV4 was registered with the Department for official
trips however, he only claimed on the tariff of the RAV4 as the Cadillac was not
registered. As a result, claiming on the Cadillac tariff would be fraudulent and would
not be approved. The trial court found that the appellant ‘laboured . . . under the
apprehension. . . ’ that he could use the Cadillac, but should only claim on the tariff
applicable to the RAV4, as it was the official registered vehicle. This explanation, the
trial court found, is ‘a far cry from the defence put up by the [appellant]’. There is no

reference in the letter to his version that he borrowed the RAV4 from Ms Phiri, either
from the period May 2008 to March 2009, or at all.

[22] The version of the appellant which was put to the witnesses was that he could
use either vehicle, but could only make a claim when he drove the RAV4, because
that was the one that was registered with the Department. It was argued that there
was no proof before the trial court that he used the Cadillac for official trips. He was
test-driving the vehicle during April and May 2008. What was not put to the witnesses
was what the situation with the Cadillac was for the balance of 2008, as according to
the state witnesses, the appellant continued to drive the Cadillac until March 2009.

[23] The trial court, in dealing with counts 9-14, found that:
‘However accepting that each of the counts 9 to 18 is a compensation claim of various trips
undertaken, the sum of which were, on the accused’s version, undertaken with the Cadillac
and some with the RAV4, it is impossible on the evidence presented, or the evidence of the
witness who testified . . . to determine on which occasion he used the Cadillac and on which
occasion, the RAV4. I am not prepared to convict the accused on speculation.’

[24] In regard to counts 15-18, dealing with the claims from December 2008 until
March 2009, the trial court found that the appellant claimed as if he used the RAV4
when he was no longer the owner or in possession of it, as it was by then owned by,
and in the possession of, Ms Phiri. The version that he borrowed the vehicle from Ms
Phiri over this period was, according to the trial court, an afterthought and did not
amount to evidence.

[25] The appellant, in the appeal before the full court, criticised this approach. He
submitted that the reasoning applicable to counts 9-14 should have applied equally to
counts 15-18, as it was mere speculation by the State that he only used the Cadillac
for that period. However, the trial court’s reasoning cannot be faulted, based upon the
State’s evidence and the appellant’s own version. From September 2008, or at the
latest December 2008, he was no longer in possession of the RAV4. More critically,
he failed to mention in the October letter that he used to borrow the RAV4 on each
and every occasion that he went on an official trip during this period.

[26] For the reasons set out above, the trial court was not prepared to convict the
appellant on speculation in respect of the period from May 2008 to November 2008.
However, it did find that from December 2008 until March 2009, the appellant was no
longer the owner of the RAV4, and that he had given no explanation for using the
RAV4. Therefore, he was convicted on the counts relevant to those months.

The full court
[27] The full court, in dismissing the appeal, agreed with the conclusion reached by
the trial court. It held that the appellant did not dispute, either by way of cross-
examination, or evidence under oath, the version of Mr Makamela and the other State
witnesses that: he was driving the Cadillac at all material times; that he had sold the
RAV4 to Ms Phiri; and that he was no longer in possession thereof during the period
referred to in counts 15-18. The version put to Mr Makamela and Mr Molokomme that
the appellant had borrowed the RAV4 from Ms Phiri and used it in each and every
instance that he was on an official trip, because he had not submitted particulars of
the Cadillac to the sub-regional head, was not repeated under oath – despite the fact
that this version was denied by the State witnesses. Both witnesses confirmed that
during that period, he was seen only driving the Cadillac.

[28] The version that the appellant used the vehicle that he borrowed from Ms Phiri
is not evidence. As stated above, he chose not to give evidence, and thus his version
has no evidentiary value. He neither confirmed it under oath nor offered himself for
cross-examination on the version put to the State’s witnesses. None of the State
witnesses conceded that his version was correct. In addition, Ms Phiri could have been
called to confirm his version, but she was not. Therefore, the claims during the period
from December 2008 until March 2009 remain unexplained. It is also common cause
that the appellant made no attempt to substitute the Cadillac for the RAV4 as his official
vehicle after he sold the RAV4.

[29] The trial court and the full court therefore found that the State had proved,
beyond a reasonable doubt, that the appellant was guilty of submitting false claims for
the period of December 2008 to March 2009, and that he was guilty of counts 15-18.

Legal Principles
[30] It is trite that the State bears the onus of proving the guilt of an accused beyond
a reasonable doubt.3 However, the State does not need to prove the guilt beyond any
shadow of a doubt. In S v Phallo,4 this Court analysed the position as follows:
‘On the basis of this evidence it was argued that the State had at best, proved its case on a
balance of probabilities but not beyond reasonable doubt. Where does one draw a line
between proof beyond reasonable doubt and proof on a balance of probabilities? In our law,
the classic decision is that of Malan JA in R v Mlambo 1957 (4) SA 727 (A). The learned judge
deals, at 737 F - H, with an argument (popular at the Bar then) that proof beyond reasonable
doubt requires the prosecution to eliminate every hypothesis which is inconsistent with the
accused’s guilt or which, as it is also expressed, is consistent with his innocence. Malan JA
rejected this approach, preferring to adhere to the approach which “. . . at one time found
almost universal favour and which has served the purpose so successfully for generations” (at
738 A). This approach was then formulated by the learned judge as follows (at 738 A - B):
“In my opinion, there is no obligation upon the Crown to close every avenue of escape which
may be said to be open to an accused. It is sufficient for the Crown to produce evidence by
means of which such a high degree of probability is raised that the ordinary reasonable man,
after mature consideration, comes to the conclusion that there exists no reasonable doubt that
an accused has committed the crime charged. He must, in other words, be morally certain of
the guilt of the accused.
An accused’s claim to the benefit of a doubt when it may be said to exist must not be derived
from speculation but must rest upon a reasonable and solid foundation created either by
positive evidence or gathered from reasonable inferences which are not in conflict with, or
outweighed by, the proved facts of the case.”
. . .
The approach of our law as represented by R v Mlambo, supra, corresponds with that of the
English courts. In Miller v Minister of Pensions [1947] 2 All ER 372 (King’s Bench) it was said
at 373 H by Denning J:
“. . . the evidence must reach the same degree of cogency as is required in a criminal case
before an accused person is found guilty. That degree is well settled. It need not reach
certainty, but it must carry a high degree 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 cause of justice.

3 S v Mia and Another [2008] ZASCA 117; 2009 (1) SACR 330 (SCA); [2009] 1 All SA 447 (SCA).
4 S v Phallo and Others [1999] ZASCA 84 paras 10-11.

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’s possible but not in the least probable’,
the case is proved beyond reasonable doubt, but nothing short of that will suffice.”’’

[31] In respect of all the counts upon which the appellant was convicted, both the
trial court and the full court concluded that the version of the appellant was improbable.
The full court found that the trial court had correctly held that there was a prima facie
case that called for an answer from the appellant at the close of the State’s case.

[32] In S v Boesak,5 Langa DP, writing for the Constitutional Court held:
‘The right to remain silent has application at different stages of a criminal prosecution. An
arrested person is entitled to remain silent and may not be compelled to make any confession
or admission that could be used in evidence against that person. It arises again at the trial
stage when an accused has the right to be presumed innocent, to remain silent, and not to
testify during the proceedings. The fact that an accused person is under no obligation to testify
does not mean that there are no consequences attaching to a decision to remain silent during
the trial. If there is evidence calling for an answer, and an accused person chooses to remain
silent in the face of such evidence, a court may well be entitled to conclude that the evidence
is sufficient in the absence of an explanation to prove the guilt of the accused. Whether such
a conclusion is justified will depend on the weight of the evidence. What is stated above is
consistent with the remarks of Madala J, writing for the Court, in Osman and Another v
Attorney-General, Transvaal [1998 (2) SACR 493 (CC)], when he said the following:
“Our legal system is an adversarial one. Once the prosecution has produced evidence
sufficient to establish a prima facie case, an accused who fails to produce evidence to rebut
that case is at risk. The failure to testify does not relieve the prosecution of its duty to prove
guilt beyond reasonable doubt. An accused, however, always runs the risk that, absent any
rebuttal, the prosecution's case may be sufficient to prove the elements of the offence. The
fact that an accused has to make such an election is not a breach of the right to silence. If the
right to silence were to be so interpreted, it would destroy the fundamental nature of our
adversarial system of criminal justice.”.’

[33] The appellant’s reliance on cases such as R v Blom and S v Reddy was
misplaced.6 These cases dealt with convictions based on circumstantial evidence. The

5 S v Boesak 2001 (1) SA 912 (CC) para 24.
6 R v Blom 1939 AD 188; S v Reddy and Others 1996 (2) SACR 1 (A).

present case is based on direct evidence – the submission of invoices based upon the
usage of the RAV4 and the testimony of the State witnesses.

[34] The State submitted that it had produced sufficient evidence to demonstrate
that the appellant, in submitting the claims for the RAV4 from December 2008 to March
2009, whilst he knowingly used the Cadillac, amounted to fraud. The version that
appellant had borrowed the RAV4 from Ms Phiri and used it in each and every instance
that he was on an official trip, was not repeated under oath – despite the fact that it
was denied by the State witnesses, and was contrary to the version put up in the
October letter.

[35] In Ndwambi v The State,7 Navsa ADP referred to R v Dyonta,8 where the
accused were convicted of fraud, in that they falsely pretended to a Mr Potgieter that
certain stones were diamonds in order to induce the buyer to pay a certain price for
the stones. The accused had been arrested immediately after they had handed the
stones to Mr Potgieter who, although he had pretended to be buying, had no intention
of buying them. Navsa DJP, citing Dyonta, stated as follows:9
‘Wessels CJ, in delivering the unanimous judgment of the court, reaffirmed the law as laid
down in two previous judgments of this court, thus (at 57):
“If the misrepresentation is one which in the ordinary course is capable of deceiving a person,
and thus enabling the accused to achieve his object, the fact that the person to whom the
representation is made has knowledge or a special state of mind which effectually protects
him from all danger of prejudice does not entitle the accused to say that the false
representation was not calculated to prejudice.”
And, in answering the point of law in favour of the State, he concluded as follows (at 57):
“The law looks at the matter from the point of view of the deceiver. If he intended to deceive,
it is immaterial whether the person to be deceived is actually deceived or whether his prejudice
is only potential.”’

[36] The trial court gave the appellant the benefit of the doubt in acquitting him on
counts 9-14, but found, in respect of counts 15-18, that the appellant had claimed for
official trips using the particulars of the RAV4 while the vehicle was no longer in his

7 Ndwambi v S [2015] ZASCA 59; 2016 (2) SACR 195 (SCA).
8 R v Dyonta and Another 1935 AD 52.
9 Fn 7 above para 20.

possession. From the October letter, it is clear that the appellant admitted that he was
using the two vehicles interchangeably; but the State showed, through its witnesses,
that this was not possible after November 2008 as, from that date, the sale of the
RAV4 to Ms Phiri was complete – as was the sale of the Cadillac to the appellant. It is
also noteworthy that the appellant’s counsel put to Mr Makamela that the RAV4 vehicle
was sold to Ms Phiri in September 2008. As found by the trial court, ‘[n]o explanation
is provided in the letter that he borrowed the RAV4 vehicle from accused 3 for the
period December 2008 to March 2009’.

[37] It is clear that both the trial court and the full court applied the principles
crystallised in S v Van der Meyden10 in analysing the evidence adduced by the State,
which the appellant chose not to rebut, as well as the October letter which formed the
basis of the exculpatory evidence in favour of the appellant in relation to counts 9-14.
In analysing the evidence as such, the trial court and full court correctly found that the
benefit of the doubt only related to counts 9-14 and that, in terms of the principles
applicable to fraud, potential prejudice is sufficient to satisfy the requirements of the
offence of fraud. Whether the defrauded party would ultimately have suffered the
prejudice anyway, is irrelevant.11 In any event, there is actual prejudice: the appellant
was compensated on a scale to which he had no entitlement, thereby adversely
affecting the Department financially.

[38] The State accordingly contended that the act on the part of the appellant, in
submitting the claims for official trips utilising the particulars of the RAV4 whilst he
knew that the vehicle that he utilised for the trips was the Cadillac, amounted to an act
of fraud. The prejudice suffered by the Department was that, during the period
December 2008 to March 2009, it overpaid the appellant an amount of around
R3 768.25.

[39] The State’s evidence was that the appellant had sold the RAV4, and that he
owned, and was observed using, the Cadillac exclusively since at least November
2008. The key question is whether that amounts to prima facie poof of the fraud. If so
(and I agree that it does), then in exercising his right to silence, the prima facie case

10 S v Van der Meyden 1999 (2) SACR 447 (W).
11 See S v Kruger 1961 (4) SA 816 (A); Ndwambi (fn 6 above).

was not challenged, leading to his conviction. That he put a version that he borrowed
the RAV4 from time to time, after November 2008, is not evidence and was not
conceded by the State’s witnesses. Hence, the appellant was at risk of conviction,
absent his taking the stand. Thus, the appellant’s submissions that the State had failed
to produce evidence which proved that his conduct was actually and/or potentially
detrimental to the administration of justice, does not amount to a defence at all.

Count 21
[40] On the count of defeating or obstructing the course of justice, it was common
cause that the appellant had reduced the fine of Mr Mudau from R1 000 to R700, prior
to the matter being heard in court, and after the prosecutor had refused to reduce this
fine.

[41] The appellant submitted that the State had failed to produce evidence that
proved that the appellant’s conduct was actually, or potentially, detrimental to the
administration of justice. The full court referred to CR Snyman’s Criminal Law where
the elements of the offence of defeating or obstructing the course of justice are: ‘(a)
conduct (b) which amounts to defeating or obstructing (c) the course or administration
of justice and which takes place (d) unlawfully and (e) intentionally’.12

[42] The evidence on this count was tendered by Mr Mudau, who was issued with a
written notice to appear in court for committing a traffic offence. He was fined R1 000.
He took the notice to the prosecutor to request a reduction. The prosecutor refused to
reduce the amount and wrote the words ‘rejected’ across the notice. His official stamp
was placed on the notice. Mr Mudau, who was an employee of MBS (which was a co-
accused in the trial) then took the written notice to the appellant, who reduced the fine
to R700.

[43] The full court found that it could be assumed that the appellant, as a senior
magistrate and the judicial head of the Magistrate’s Court of Dzanani, was aware of
the procedure laid down in s 56 of the CPA, read with ss 57, 57A and s 55 of thereof.13

12 CR Snyman Criminal Law 6 ed (2014) at 237. There is now a newer edition, but the definition remains
the same – see CR Snyman Criminal Law 7ed (2021) at 292.
13 The legislation has subsequently been amended, but in view of the decision to which I have come, it
is not necessary to analyse the relevant provisions of the section or the amendment.

[44] In terms of s 57(6), no provision of s 57 is to be construed as preventing the
public prosecutor from reducing an admission of guilt fine on good cause shown in
writing. Section 57(8) of the CPA, provides that when an admission of guilt fine is paid
at a police station or a local authority in terms of subsection (3), the summons or written
notice is surrendered under subsection (5) and thereafter it is forwarded to the clerk
of the magistrates court, which has such jurisdiction, and the clerk shall thereafter
enter the essential particulars of such summons or written notice in the criminal record
book for admissions of guilt, whereupon the accused concerned shall – subject to the
provisions of subsection (9) – be deemed to have been convicted and sentenced by
the court in respect of the offence in question.

[45] Section 57(9) provides that the judicial officer presiding at the court shall
examine the documents, and if it appears to him or her that a conviction or sentence
under subsection (8) is not in accordance with justice or, except as provided in
subsection (6), may set aside the conviction and sentence and direct that the accused
be prosecuted in the ordinary course.

[46] The full court found that it follows from the provisions of s 57(6) and (9) of the
CPA, that a magistrate has no powers to reduce a traffic fine as the appellant did in
this case. These powers rest only with the prosecutor. The magistrate can only act in
terms of s 57(9). Thus, the full court found that the trial court’s findings that the conduct
of the appellant was irregular could not be faulted.

[47] The appellant submitted that there was no evidence led in the trial court to
prove, or even conclusively infer, that the appellant’s conduct in reducing the traffic
fine amount was intended to defeat the ends of justice at all. It was further contended
that the ends of justice were served in that the State was still paid R700, and Mr Mudau
was convicted on the admission of guilt. Furthermore, it was contended that there was
no evidence led by the State indicating that the appellant’s conduct in reducing the
traffic fine upon request, was unlawful, and therefore it cannot be said that the crime
of defeating or obstructing the ends of justice was committed.

[48] The appellant’s conduct was ultra vires. The recourse which should have been
taken, the appellant submitted, was a review in terms of Rule 53 of the Uniform Rules
of Court, instead of a criminal prosecution. The appellant thus submitted that the lower
courts erroneously ‘. . . conflated inferred ethical blameworthiness and probable
questionable conduct with the sterner test of criminal blameworthiness’.

[49] According to Mr Makamela, pre-2008, when an admission of guilt was paid by
the person who had been issued a traffic fine, the person would either pay it at the
magistrate’s court or at a police station. Then, the original of the summons and/or
written notice would be sent to the relevant magistrate’s court. Makamela stated that
at a time after 2008, due to the conflicts between the departments, traffic officers would
keep the written notice and the person charged would pay them; but they would only
bring them to court on the appearance date, or on the date reflected in the notice. After
the payment, the clerk of the criminal court would bring the written notice to a
magistrate, who confirms and signs the written notice. However, after some time in
2008, Makamela stated, one cannot take the ticket from the traffic department to a
magistrate to reduce it before the court date, as that is the job of the prosecutors.

[50] Evidence was given by the State witnesses in regard to a meeting held in
respect of which the question was whether a magistrate would be allowed to reduce a
notice in regard to a traffic offence before an appearance in court. At the meeting, it
was resolved that only the prosecutor could do this.

[51] The minutes of this meeting, which appears to have taken place in June or July
2009, were compiled by Mr Makamela who took them to the appellant. At the meeting,
the appellant stated that in terms of s 342A of the CPA he was entitled to reduce the
fine before it was brought to court. In the meeting. Mr Makamela ascertained that the
appellant had already reduced Mr Mudau’s ticket before he was scheduled to appear
in court.

[52] In my view, the evidence regarding the meeting and the decisions taken
thereafter created some confusion. The submissions of the appellant that he was
entitled to do what he did; casts doubt upon the element of intent to defeat the ends
of justice. Thus, on this count, I would uphold the appeal and set aside the conviction.

Conclusion
[53] In failing to testify, the appellant did not answer the prima facie case against
him, and he ran the risk of that proof becoming conclusive proof, as there was nothing
to gainsay the version of the State.14 The evidence produced by the State proved,
beyond reasonable doubt, that fraud was committed and that the appellant was
correctly convicted on counts 15-18. However, the charge of defeating or obstructing
the course of justice in respect of count 21 was not proved beyond a reasonable doubt
and should be set aside.

[54] In the result, the following order is made:
The appeal against the convictions on counts 15-18 is dismissed.
The appeal against the conviction on count 21 is upheld and the conviction is
set aside.

______________________
S E WEINER
ACTING JUDGE OF APPEAL

14 S v Chabalala 2003 (1) SACR 134 (SCA).

Appearances:

For the appellant:

M S Monene
Instructed by:

T N Ramashia Attorneys, Thohoyandou

Molefe Thoabala Attorneys, Bloemfontein

For the respondent:

N F Doubada
Instructed by:
National Director of Public Prosecutions,
Polokwane;  National Director of Public
Prosecutions, Bloemfontein.
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

24 JANUARY 2022
Status:
Immediate

The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
Mphanama v The State (1107/2020) [2022] ZASCA 11 (24 January 2022)
Today the Supreme Court of Appeal (SCA) handed down judgment upholding in part, and dismissing
in part, the appeal against a decision of the Full Court of the Limpopo Division of the High Court,
Polokwane (the full court).
The issues before the SCA were whether the State had produced sufficient evidence to prove beyond
a reasonable doubt that the appellant’s conduct amounted to fraud and defeating or obstructing the
course of justice.
The appellant was charged with three other accused. The appellant was accused 1. They were charged
with 21 counts but the appeal related only to the convictions of fraud on counts 15-18 and defeating the
ends of justice on count 21. They were discharged on all the remaining counts.
In respect of count 15-18, the State alleged that the appellant submitted claims for official trips utilising
the particulars of a Toyota RAV4 (the RAV4) vehicle, whilst he knew that the vehicle that he utilised for
the trips was a Cadillac 200cc petrol sedan (the Cadillac), which was subject to a lower tariff. This the
State alleged amounted to fraud. The prejudice suffered by the Department of Justice and Constitutional
Development and/or the Department of Justice and Correctional Services’ (the Department) was that,
during the period December 2008 to March 2009, it overpaid the appellant an amount of around
R3 768.25.
The State’s evidence was that the appellant had sold the RAV4, and that he owned, and was observed
using, the Cadillac exclusively since at least November 2008. The key question was whether that
amounted to prima facie poof of fraud. Several of the State witnesses gave evidence on this issue.

The appellant’s counsel put a version to the state witnesses, that the appellant, despite disposing of the
RAV4 borrowed the RAV4 from time to time, after November 2008, to undertake all his official trips. The
State witnesses disputed this version. The appellant chose not to give evidence to rebut the prima facie
case. The appellant submitted that the State had failed to produce sufficient evidence to show that he
had acted fraudulently, which conduct was actually and/or potentially detrimental to the administration
of justice
The SCA found that the State had made out a prima facie case of fraud against the appellant. The SCA
held that as a result of the appellant’s failure to testify, his version did not amount to evidence. Hence,
the appellant was at risk of conviction, absent his taking the stand. The SCA therefore dismissed the
appeal against the convictions on counts 15-18.
In respect of count 21 – defeating or obstructing the course of justice – the appellant was indicted on
the following facts. During or about May 2009, the appellant, in his capacity as a magistrate, unlawfully
and with the intent to defeat or obstruct the course of justice, reduced a traffic fine of R1 000 to an
amount of R700. The traffic offender had approached the office of the prosecutor with an application
for a reduction of the amount of the fine, and the application was rejected by the prosecutor.
Evidence was given by the State witnesses in regard to a meeting held in respect of which the question
was whether a magistrate was authorised to reduce a fine in regard to a traffic offence before an
appearance in court. At the meeting, it was resolved that only the prosecutor could do this.
The SCA was of the view that the evidence regarding the meeting and the decisions taken thereafter
created some confusion. The submissions of the appellant that he was entitled to do what he did; casts
doubt upon the element of intent to defeat the ends of justice. Thus, on this count, the SCA upheld the
appeal and set aside the conviction.

~~~~ends~~~~