THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No:  344/07

In the matter between:

MOHAMED JOONAID MIA                                                 FIRST APPELLANT
RAYMOND HOWELL                                                     SECOND APPELLANT

v

THE STATE                                                                                 RESPONDENT

Neutral citation: Mia v The State (344/2007) [2008] ZASCA 117
(26 September 2008).

Coram:
Heher, Mlambo, Maya JJA

Heard:
19 August 2008

Delivered:
26 September 2008

Summary:
Criminal law – theft – competent verdict on robbery charge – theft
generic offence encompassing theft by false pretences.

Evidence – discredited evidence of accused – irrelevant regarding
guilt or innocence of another accused – where state had
produced no inculpating evidence against that accused.

_______________________________________________________________

ORDER
_______________________________________________________________

On appeal from: High Court, Witwatersrand (Joffe J and Kekana AJ sitting as
Full Court).

1.
The first appellant’s appeal against his conviction for theft succeeds
and the order of the Johannesburg High Court is set aside.

2.
In its place the following order is substituted:

‘The first appellant’s appeal against his conviction is upheld and a
finding of ‘not guilty and discharged’ is substituted therefor.’

3.
The second appellant’s appeal against his conviction for theft is
dismissed.

______________________________________________________________

JUDGMENT
______________________________________________________________
MLAMBO JA (HEHER, MAYA JJA concurring):

[1] The appellants were convicted on one count of theft and sentenced to
six years’ imprisonment by the Johannesburg Regional Court. Their appeal to
the Johannesburg High Court (Joffe J and Kekana AJ) failed but they were
granted leave by that court to appeal to this court against their convictions.

[2] The facts are that on 31 October 1990 the first appellant (Mia) had
facilitated a meeting between the second appellant (Howell) and a certain
Mr Ebrahim to conclude a foreign exchange transaction involving an amount
of R1,1m. At that time Mia was an estate agent conducting his business with
attorneys Lachporia and Osman with whom he shared premises in Fordsburg.
The meeting was at Mia’s office and the transaction was in contravention of

foreign exchange regulations. That meeting was preceded by one on the
same day at which Howell had to check the money tendered by Ebrahim to
satisfy himself that it was genuine and all there. Even though Ebrahim was
involved in the transaction, the money he was using was not his but belonged
to the Carrim family represented by Enver Carrim. At the meeting in Mia’s
office Howell masqueraded as Peter Lehman, a German investor, whose
interest was to conclude a foreign exchange transaction involving the South
African and British currencies. This was Ebrahim’s understanding of what was
happening when he put the money, in containers, on Mia’s desk in the
expectation that Howell would then call his contacts in London to effect the
transfer of an amount of £200 000 into an agreed bank account which would
result in a profit in the region of 30 per cent.

[3] After Ebrahim had put the money on Mia’s table, Howell suddenly
produced a business card, stating at the same time that he was a policeman
from the Commercial Branch of John Vorster Square police station. Ebrahim,
thinking he had become entangled in a police sting operation, bolted out of
Mia’s office and retreated to his warehouse from where he advised Enver
Carrim of what had transpired. After Ebrahim’s departure Howell spoke into a
two way radio, and another man walked into Mia’s office and assisted Howell
to remove the containers with the money. As Howell was leaving the premises
he told the office staff that a police officer from John Vorster Square Police
Station would call to take charge of the case.

[4] Later that afternoon after a meeting involving Mia, Ebrahim, the Carrim
brothers, Lachporia and certain lawyers who had been consulted, Mia and
Ebrahim went to John Vorster Square Police Station to lay a charge of
robbery, stating that Howell had robbed Ebrahim of emeralds valued at R1,1m
at gunpoint. Mia provided a statement to the police and cooperated with them
as a witness in the ensuing investigation and efforts to trace Howell who had
vanished without trace. Just over a year later and on a routine visit to a police
station Mia saw Howell. This chance encounter prompted Mia to change his
version to the police about what had happened on 31 October 1990. He
stated that what was robbed was actually an amount of R1,1m and not

emeralds as he had initially reported.

[5] The police charged Howell with robbery but the charge was withdrawn.
After representations from the Carrim family to the Commissioner of Police a
decision was taken to charge both appellants with that offence. The charge
sheet alleged that ‘on 31 October 1990 both assaulted Ebrahim, whilst
pointing a firearm at him, and removed from his possession, with violence an
amount of R1,1m being his property and/or the property of Enver Carrim and
thereby took the money’. The ensuing trial spanning some seven years
culminated in the appellants being convicted of theft of the amount of R1,1m.

[6] The version presented by Mia during the trial was almost identical to
that of Ebrahim especially with regard to the incident in Mia’s office on 31
October 1990. This version was that he had facilitated the meeting on that day
at Howell’s instance, whom he had met for the first time a few days before
and who had been referred to him by certain persons he knew from Kwazulu-
Natal. He stated that his contacts had assured him of Howell’s bona fides. As
a result he had believed that Howell was Peter Lehman, a German investor,
and had in good faith facilitated the meeting with Ebrahim for purposes of the
foreign exchange transaction just like others he had facilitated in the past. He
stated that he was taken aback when, at the meeting in his office, Howell
suddenly announced that he was a policeman and produced a card. Because
he had believed Howell’s utterance, he had not tried to prevent him and his
accomplice leaving with the money.

[7] On the other hand, Howell’s version was that, from inception, the whole
incident was a plan hatched by Mia, who was owed commission from past
deals by Ebrahim and/or the Carrim family. He testified that Mia knew his true
identity and that he simply played along because he had been promised a
share of the spoils. After he removed the money from Mia’s office following
Ebrahim’s precipitate departure he met Mia at the Carlton Centre in
Johannesburg during the afternoon of the same day. There Mia paid him an
amount of R55 000 and took the rest of the money away with him.

[8] The trial court concluded that on the evidence before it the illegal
transaction involved a foreign exchange deal and not emeralds. In so doing it
rejected the evidence of Ebrahim, who had testified that the subject of the
transaction was emeralds. The trial court also disbelieved Ebrahim regarding
the production of a firearm by Howell at the meeting in the office. The court’s
conclusion that theft and not robbery was committed was informed by this
finding. The trial court further found that ‘the three versions [of the state and
the two accused] are mutually destructive and cannot all be the truth. The true
version is probably to be found in a combination of the three versions or
possibly in a fourth version which no one deposed to’. The court, however,
was specific in labelling Howell as evasive, not credible and unreliable but
made no similar finding regarding Mia save that there were improbabilities in
his version and that in certain respects his witnesses contradicted his version.

[9] The trial court concluded that the offence of robbery had not been
proved but that instead the appellants were guilty of theft1 in that they had
conspired to steal the money from Ebrahim through false pretences. The trial
court stated:

‘I find that the only reasonable inference which I can come to on the objectively
proven facts, is that the two accused have formed the common purpose to trick the
witness Ebrahim into believing that the money was genuinely going to be transferred
into a foreign account.’

[10] The issue therefore is whether the trial court was correct in concluding
that the two appellants had acted in cahoots to hoodwink Ebrahim. This, it will
be remembered, was Howell’s version, that he took part in the deal simply to
assist Mia who was recovering unpaid commission from the Carrims arising

1 Section 260 of the Criminal Procedure Act 51 of 1977 provides: ‘If the evidence on a charge
of robbery or attempted robbery does not prove the offence of robbery or, as the case may
be, attempted robbery, but- . . . (d) the offence of theft; . . . the accused may be found guilty of
the offence so proved, or, where the offence of assault with intent to do grievous bodily harm
or the offence of common assault and the offence of theft are proved, of both such offences.’

from past deals. The court’s conclusion that Mia was as guilty as Howell was
based on its finding that Mia, who was no small man, did nothing to come to
Ebrahim’s aid when Howell performed his theatrics in his office and that he
could have prevented the unarmed Howell from leaving with the money. The
trial court was further of the view that Mia had ample opportunity during the
afternoon to leave his office and meet Howell at the Carlton Centre to take his
share of the spoils – and return to his office.

[11] Before us, counsel for Mia submitted that the trial court had erred in
convicting Mia as no evidence had been adduced by the state incriminating
him. Counsel for Howell was content to argue that the trial court had erred in
convicting his client of theft as, at most, the evidence disclosed the
commission of the offence of fraud. Counsel submitted that as fraud is not a
competent verdict of robbery the court should have acquitted Howell. Counsel
for Howell further submitted, in the alternative that Howell could not be
convicted of theft by false pretences unless the charge sheet had specifically
mentioned this which was not the case here.

[12] The proper approach in a criminal case, is that evidence must be
considered in its totality.2 It is only in doing so that a court can determine if the
guilt of an accused person has been proved beyond reasonable doubt.
Should the trial court, in the course of assessing the evidence before it, find
that a particular witness is unreliable and reject his version for that reason,
that evidence plays no further part in the determination of the guilt or
innocence of the accused in the absence of satisfactory corroboration. Even
more so does this apply to evidence tendered by a co-accused incriminating
another, especially where the state has not adduced any evidence proving the
guilt of that other accused.

[13] The trial court, in convicting Mia, relied on Howell’s evidence that they
met at the Carlton Centre to share the spoils. That evidence was entirely
uncorroborated. Significantly, a reading of all the evidence renders it

2 S v M 2006 (1) SACR 135 (SCA) at 183h-i and S v Gentle 2005 (1) SACR 420 (SCA) at
433h-i.

improbable that Mia left his office that afternoon before going to the police
station. The evidence of the state established that Mia co-operated with
Ebrahim and the Carrim family in trying to locate Howell. He also
accompanied Ebrahim when they went to lay charges against Howell on the
same day. If anything, this evidence did not incriminate Mia but tended to
support his version that he was as flummoxed by Howell’s trick as was
Ebrahim. The state’s evidence fell short of establishing even a prima facie
case of robbery or theft by Mia. Reliance on Howell’s suspect testimony,
uncorroborated as it was, carried the case no further.

[14] Furthermore the trial court ignored Mia’s denial of a subsequent
meeting with Howell without good reason. It must also be pointed out that the
evidence of Howell’s massive spending spree involving a residential property
and a motor vehicle, for example, a few days after 31 October 1990 (which
Howell dishonestly attempted to explain away) without similar evidence
against Mia should at least have raised serious question about the credibility
of any evidence by him which inculpated Mia particularly the paltry amount he
alleged was his share of the spoils.

[15] The conviction of Mia cannot stand in the light of all the aforegoing
considerations. It is correct as submitted by Howell’s counsel that fraud is not
a competent verdict on a charge of robbery. Fraud is described as ‘the
unlawful and intentional making of a misrepresentation which causes actual or
potential prejudice . . .’.3 It is correct that in Ebrahim’s mind he was to part with
R1,1m and to receive £200 000 by way of a deposit into an account in
London. In his mind he expected Howell to finalise the transaction by calling
his contacts in London to do the transfer. Had Howell pretended to do that
and had Ebrahim walked out thereafter believing that the deposit had been
effected, fraud would have indeed been committed.

[16] That is not what happened here. No sooner had Ebrahim voluntarily
put the money on the table than the unexpected happened. The

3 C R Snyman Criminal Law 5 ed (2008) p 531.

transformation of Peter Lehman, the German investor, into a policeman was
not what Ebrahim had bargained for and he immediately made good his
escape. He was not induced to hand over the money by the representation;
rather he abandoned control of it when the representation was made and thus
enabled Howell to take it at his leisure, knowing that he had not yet received
the consent of Ebrahim to do so. That the trap was not a genuine police trap
did not turn Howell’s conduct into fraud. It is also incorrect to suggest, as
Howell’s counsel attempted to do, that there can be no conviction for theft by
false pretences where the charge sheet does not specifically mention this
offence. Counsel referred in this regard to an unreported judgment of
Stafford J (in which Strydom J concurred)4 in which it was found that ‘fraud in
the form of theft by false pretences was not the type of theft contemplated by
the legislator as a competent verdict in s 260(d)’ [on a robbery charge]. I
disagree. No such distinction is implicit in the section. Clearly it is competent
for a court to convict on the competent verdict of theft where the charge is one
of robbery. Theft is a generic offence that encompasses theft by false
pretences. See Ex parte Minister of Justice: In Re R v Gesa; R v De Jongh
1959 (1) SA 234 (A) at 239F-H where it was stated:

‘If there was deception so fundamental that the will of the victim did not go with the
act, there could be a taking and therefore larceny, called larceny by a trick. But if the
deception was not so fundamental as wholly to nullify the voluntariness of the act,
there was no room for larceny. Yet the deceiver's conduct had to be punished and so
the crime of obtaining goods by false pretences was devised. As was pointed out by
Ramsbottom J, in Dalrymple, Frank and Feinstein v Friedman and Another, 1954 (4)
SA 649 (W) at p 664, it is not correct to say that our law's treatment of both types of
fraudulent acquisition of another's goods – the larceny by a trick type and the
obtaining by false pretences type – as theft by false pretences owes its origin to
English practice. On the contrary in 1895 in R v Swart 12 SC 421, De Villiers CJ
stated that our law differs from the English law and has always treated facts covered
by the English crime of obtaining by false pretences as theft. Ten years later in Rex v
Collins 19 EDC 163, Kotze JP, said that theft in our law has a much wider scope than
the corresponding term in English law and that our crime of theft is wide enough to

4 William Boeck v The State Case No A273/91 (Transvaal Provincial Division) delivered on
13 May 1991.

include the obtaining of goods by false pretences. The belief that our law of theft
incorporated theft by false pretences under the influence of English law, a belief
expressed, for instance, in Rex v Mofoking 1939 OPD 117, may have been
encouraged by the mistaken notion that there is in English law a crime of theft by
false pretences (cf Rex v Hyland 1924 TPD 336). It is true that the name of the
English crime of obtaining by false pretences may well have suggested the use of the
expression “theft by false pretences” (cf Transkeian Penal Code ss 191 to 193), but
our law successfully resisted any tendency that there may have been to confine theft
within the narrow limits of larceny.’

Howell was in my view correctly convicted of theft and his appeal must fail.

[17] I should express my disquiet at the delay implicit in this matter. The
offence was committed in October 1990 and it took nearly three years for the
trial to start, against both appellants in May 1993. That trial was concluded in
January 1999 nearly seven years later. The subsequent appeal to the
Johannesburg High Court was concluded on 22 June 2007, eight years later.
The matter has to date taken some 18 years to finalise. This is an indictment
on the criminal justice system and the two appellants must take a lions’ share
of the blame for this state of affairs. They have, as would be expected, not
been prejudiced by the delay as they have been on bail since the inception of
the trial which was extended when they were convicted in 1999. One hopes
that the dilatory manner in which this matter has been handled will not be
repeated in other matters.

[18] In the circumstances the following order is granted:

1.
The first appellant’s appeal against his conviction for theft succeeds
and the order of the Johannesburg High Court is set aside.

2.
In its place the following order is substituted:

‘The first appellant’s appeal against his conviction is upheld and a
finding of ‘not guilty and discharged’ is substituted therefor.’

3.
The second appellant’s appeal against his conviction for theft is
dismissed.

__________________
D MLAMBO
JUDGE OF APPEAL

APPEARANCES:

FOR APPELLANT:
1st APPELLANT – B ROUX SC;

2nd APPELLANT – M R HELLENS SC
INSTRUCTED BY:
MAHMOOD MIA ATTORNEYS; FORDSBURG

ROSSOUWS; BLOEMFONTEIN

FOR RESPONDENT:
M T NTLAKAZA
INSTRUCTED BY:
THE DIRECTOR OF PUBLIC PROSECUTIONS;
JOHANNESBURG
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
26 September 2008

Status:
Immediate

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal.

Mia and Another v the State

The Supreme Court of Appeal (SCA) today upheld an appeal by Mohamed
Joonaid Mia and dismissed that of Raymond Howell. They had been convicted
of theft of R1,1m by the Johannesburg Regional Court which was confirmed by
the Johannesburg High Court.

Howell had approached Mia to facilitate an illegal foreign exchange transaction.
The complainant, Ebrahim, believing Howell’s representation that he would
receive £200 000 in exchange for R1,1m delivered the money but midway
through the meeting Howell pretended to be a policeman. On this turn of events
Ebrahim ran away leaving the money behind which Howell appropriated and
vanished without trace.

Some years later Mia and Howell were charged with robbery of R1,1m but were
convicted of theft instead it being the regional court’s conclusion that they had
committed that offence (a competent verdict on a robbery charge) and not
robbery  as no violence was used. Their appeals to the Johannesburg High
Court failed but they were granted leave to appeal to the SCA.

The SCA found that the lower courts had misdirected themselves in convicting
Mia. In this regard the SCA found that the state had led no evidence inculpating
Mia and that his conviction was based on Howell’s evidence, who the regional
court had branded as evasive, unreliable and not credible. On this basis Mia’s
conviction was set aside.

The SCA further found that what Howell had committed was theft and not fraud
and that the regional court was correct in convicting him of theft. The SCA
accordingly dismissed Howell’s appeal.