THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 284/2017

In the matter between

TENGIMPILO MAQEBHULA                                                                    APPLICANT

and

THE STATE                                                                                          RESPONDENT

Neutral citation:
Maqebhula v The State (284/17) [2018] ZASCA 010 (5 March
2018)

Coram:
Ponnan, Willis and Mathopo JJA and Davis and Rogers AJJA

Heard:

16 February 2018

Delivered:

5 March 2018

Summary:
Application for leave to appeal against dismissal by high court of
petition for leave to appeal against conviction and sentence by regional court –
relevant test whether applicant has reasonable prospects of success – no such
prospects in present case.

_________________________________________________________
ORDER
___________________________________________________________________

Application for leave to appeal from: The Eastern Cape Division, Grahamstown
(Mbenenge J and Bacela J sitting as court of appeal against a decision of the Port
Elizabeth Regional Court).

The application is dismissed.

JUDGMENT
___________________________________________________________________

Rogers AJA (Ponnan, Willis and Mathopo JJA and Davis AJA concurring)

[1] This is an application for leave to appeal which has been referred to open
court for argument. On 6 February 2014 the applicant was convicted in the Port
Elizabeth Regional Court on two counts of fraud and sentenced to a fine of R20 000
or, failing payment, two years’ imprisonment, the counts being taken together for
purposes of sentence. The applicant sought leave to appeal against conviction and
sentence which the magistrate refused. A petition to the court a quo was dismissed.
The applicant now applies for leave to appeal against the dismissal of the petition.

[2] The test we must apply is whether the applicant enjoys reasonable prospects
of success, not whether an appeal would succeed.
[3] At the relevant time the accused, a lieutenant-colonel in the South African
Police Service (SAPS), was the commanding officer of the Grahamstown Local
Criminal Record Centre (LCRC). The charges of fraud arose from two trips he
undertook in police vehicles, the first on Thursday and Friday 24-25 June 2010, the
second on Saturday 12 February 2011. The applicant’s superior officer was
Brigadier Botha. The applicant made the prescribed application to Botha to use the
vehicle for the June 2010 trip. He made no such application for the February 2011
trip.

[4] The first count alleged that during the period 22-25 June 2010 the applicant
unlawfully, falsely and with the intention to defraud, represented to Botha and/or the
SAPS that he had to testify in his official capacity in a criminal case in Cradock on
24 June 2010; that, while being under an obligation to do so, omitted to disclose that
he did not attend the criminal case and/or would or did travel to certain other towns
alleged in the preamble to the charge; and that, by means of the said
misrepresentations, induced the SAPS – to its loss and prejudice – to grant him
authorisation to use the vehicle for the purpose stated in the prescribed application.
[5] The second count alleged that on or about 12 February 2011 the applicant
unlawfully, falsely and with the intention to defraud, failed to disclose to Botha and/or
the SAPS that he undertook a trip with an official vehicle under circumstances where
he had a duty to disclose such fact; and that, by means of the said
misrepresentation, precluded the SAPS – to its loss and prejudice – from instituting
legal action and/or disciplinary proceedings against him to recover the wasted funds
of the trip.
[6] I shall deal with the two counts chronologically but mention that the events
relating to the second trip were uncovered first and prompted the investigation which
uncovered the events relating to the first trip.
[7] On 22 June 2010 the applicant applied to use a police vehicle to travel for
official purposes via the shortest route from Grahamstown to Cradock on 24 June
2010, departing at 07:00 and returning at 17:00. The stated purpose was to attend
court as a witness. The applicant attached to his application a subpoena purporting
to show, by way of a handwritten annotation, that an earlier hearing to which he had
been subpoenaed had been remanded to 24 June 2010. Botha approved the
application.
[8] The evidence established that the applicant was subpoenaed to attend the
Cradock case in May 2010. The investigating officer in the Cradock case testified
that the handwritten date ‘24 June 2010’ was not his and that he had not told the
applicant that the case had been remanded to that date or that he was required to

be present on that date. On the contrary, the case was remanded to 13 October
2010.
[9] The official vehicles are fitted with tracking systems which send SMS
messages to the server every few minutes. This permits close monitoring of the
vehicle’s location, speed and distanced travelled. When the discovery of alleged
irregularities in respect of the second trip led to an investigation of earlier trips, the
tracking report for the vehicle used by the applicant on the first trip showed that
shortly after 07:00 on 24 June 2010 the applicant left Grahamstown and travelled on
the N2 through King William’s Town to East London where he stopped in Church
Street at 09:46. Within East London he travelled between several addresses and
then headed back on the N2, leaving East London at 12:06 and arriving in King
William’s Town at 13:00. He spent about fifteen minutes there before returning to
Garcia Street in East London. After stopping there for a few minutes, he headed
north on the N6 through Queenstown to Cradock where he arrived at 17:49. He
drove to several locations in Cradock before turning off the ignition for the night at
20:44. The applicant left Cradock early the next morning, arriving back in
Grahamstown at 07:13.
[10] It is common cause that the applicant did not testify in Cradock on 24 June
2010 and that the court did not sit at all during that week. The applicant’s version
was that at the hearing in May the case was provisionally remanded to 24 June
2010 because of the accused’s ill-health and that his arrangement with the
prosecutor was that he would phone the prosecutor (whose name he could not
recall) on 23 June to check whether the case was running. He claimed to have done
so and to have been told that the case was not proceeding. He testified that he then
phoned Botha to say that although he was no longer needed as a witness in
Cradock, he still needed to go there to fetch a docket. Botha, he alleged, gave him
the go-ahead.
[11] The applicant testified that he arranged with his colleague in Cradock to leave
the docket at the police station because he might only get there late; and that while
in Cradock he went to the charge office to collect the docket. He said that he also
drove to various locations in Cradock to trace witnesses in connection with a civil

case where a W/O Senekal was suing him and the state. (This was not something
he claimed to have mentioned to Botha as a purpose of the trip.) When asked where
he slept in Cradock, he could not remember. He confirmed that he had friends in
Cradock but could not remember whether he spent the night with one of them.
[12] In regard to his visits to King William’s Town and East London (which he
likewise did not claim to have mentioned to Botha), his evidence was that the
Grahamstown LCRC needed certain fingerprinting supplies (ninhydrin and
superglue) which, after phoning around, he could only source from the LCRC in East
London; and that he needed to deliver various papers to the King William’s Town
police station.
[13] The applicant’s version about phoning Botha for an oral variation first
emerged during the applicant’s evidence. The State successfully applied to reopen
its case to call Botha. The latter denied having received the alleged call. He testified
that he would not have authorised a trip for the purposes claimed by the applicant as
there were closer police stations which could have supplied the materials and
because officers from the Grahamstown LCRC regularly visited the large LCRC in
Port Elizabeth.
[14] Even on the applicant’s version, he did not have authority to travel to East
London or to extend the trip into a second day. The applicant’s actual trip was about
three times longer than a direct journey from Grahamstown to Cradock. In any
event, there is no prospect that another court will find the applicant’s version to be
reasonably possibly true. Since on his version he knew on 22 June that the Cradock
case might not run on 24 June, it made absolutely no sense to make the application
to Botha without first finding out whether the Cradock case was proceeding. He
could have phoned the prosecutor on 21 or 22 June, before lodging his application.
Furthermore, if – as he claimed – he had several reasons, and not one, for visiting
Cradock, one would have expected him to mention the other reasons (fetching the
docket; tracing witnesses) in his application for authority, particularly since he knew
that his commitment as a witness might fall away.

[15] The magistrate, who saw and heard the witnesses, believed Botha and
disbelieved the applicant. A reading of the record does not suggest any basis on
which an appeal court might interfere with this finding. On the contrary, the applicant
was a poor witness.
[16] His version of the lengthy trip undertaken supposedly to obtain minuscule
supplies of ninhydrin and superglue is ludicrous. Furthermore, there were material
discrepancies between the version put to the state witness Lt-Col Muller and the
version the applicant subsequently gave. What was put to Muller was that when the
applicant arrived at East London he discovered that his colleague, W/O Bengo,
could only supply him with the superglue, not the ninhydrin, and that he thus
sourced the ninhydrin from the LCRC in Queenstown. When he testified, however,
he claimed to have obtained both materials from Bengo in East London, and that
was also the evidence of Bengo whom the defence called as a witness. There was,
however, a discrepancy between the applicant’s testimony and that of Bengo: the
applicant claimed to have taken delivery of the materials in Church Street near the
Oxford Street police station whereas Bengo alleged that the hand-over occurred
outside the Cambridge police station in Garcia Street.
[17] The detailed tracking information is not reconcilable with the applicant’s
account. His version was that the recorded stopping of his vehicle in Church Street
at 09:46 was the occasion when Bengo supplied him with the ninhydrin and
superglue. Although the police station was in Oxford Street, there was, he said, no
parking available there, so his colleague met him briefly in Church Street. The
tracking report, however, shows that he spent an hour at this location and the
related Google image indicates that the place where he stopped in Church Street
was some distance from Oxford Street.
[18] The tracking report also shows that after stopping in Church Street for an
hour, the applicant drove to the Cambridge police station in Garcia Street where he
spent a further 45 minutes. According to the applicant, he needed to get crime
intelligence there whereas Bengo claimed that this was where he met the applicant
briefly to hand over the fingerprinting materials.

[19] In regard to the papers he supposedly needed to deliver in King William’s
Town, there was no reason for him not to have delivered them on his way to East
London if his version of the reason for the visit were the truth. It made no sense, on
his version, for him to drive through King William’s Town to East London and then
back to King William’s Town and then back again to East London.
[20] His version as to what he did in Cradock is also not credible. He claims to
have needed to fetch a docket there. However there was unchallenged evidence
from the State that according to the tracking report he did not stop at any Cradock
police stations.
[21] In my view, therefore, the applicant has no prospects of success in respect of
the first count.
[22] As I have mentioned, the applicant did not seek authority for the second trip.
The circumstances in which it was discovered are these. On Friday 11 February
2011 W/O van Staden used the vehicle for official purposes. When he arrived back
in Grahamstown he filled the tank and returned the keys and logbook to the
applicant. On the Monday morning Van Staden accompanied W/O de Klerk on an
intended trip in the same vehicle. When, shortly after leaving the police yard, De
Klerk stopped at a garage to buy petrol, Van Staden expressed surprise because he
had left the vehicle with a full tank. They checked the logbook. No weekend trip was
reflected and the odometer reading purported to show that the vehicle had only
travelled three kilometres since Van Staden parked it on the Friday.
[23] When the tracking report for the vehicle was retrieved, it revealed the
following (it is common cause that the applicant was the driver). On Saturday 12
February 2011 the applicant departed from Grahamstown at 11:12. He drove north
on the R350 to Bedford, then east on the R63 through Cookhouse to Somerset East
where he stopped for about three minutes. He then retraced his course on the R63
through Cookhouse and Bedford where, instead of turning south onto the R352 back
to Grahamstown, he carried on through Bedford and Adelaide to Fort Beaufort
where he stopped for a couple of minutes before driving south on the R67 back to
Grahamstown where he arrived at 15:05. The total distance covered was 351 km.

[24] The applicant’s explanation was that he needed to verify the northern point of
a sketch plan at a location just east of Cookhouse. Because it was a very busy
period, he was unable to get to this during the week. He drove to Somerset East to
buy something to eat and drink. In cross-examination it was pointed out to him that
the tracking report did not indicate that the vehicle had stopped in the vicinity of
Cookhouse after he returned from Somerset East and he was invited to explain this
apparent inconsistency with his version. His reply was that he had not switched off
the ignition when checking his sketch plan because it had only taken a minute or
two. By this stage, I should mention, an expert called by the State had testified that if
the car was stationary with the engine idling, the tracking report would not show that
the vehicle had stopped unless it was stationary for two successive SMS signals.
Asked why he had not bought something to eat in Cookhouse, he said the outlets
there were more expensive than the Spar at Somerset East.
[25] The applicant’s explanation for the trip was undoubtedly false; and if it was
false, that could only be because the true purpose of the trip was unrelated to police
business. On the applicant’s version, he travelled an extra 50 km (25 km each way)
just to buy some takeaway food and drink at a supposedly cheaper price. This is an
absurd story. And why would the applicant not have switched off the ignition when
finalising his sketch plan, even if he only needed a few minutes? His version was
plainly tailored to meet the problem raised by the tracking report.
[26] Even so, his version fell far short of meeting the difficulties created by the
tracking report. The version put to the State witnesses was that to reach the location
of the sketch plan he had needed to travel about ten minutes on a dirt road off the
R63. The tracking report showed no such deviation. The SMS signals were
generally only one or two minutes apart (the longest interval was three minutes) and
showed the vehicle at all times on the R63. The tracking report recorded that he was
driving at an average speed of around 120 km/h when returning from Somerset East
to Cookhouse and that this leg of the trip took 13 minutes. The distance between
Somerset East and Cookhouse is about 25 km, which, at a speed of around 120
km/h, would take 12½ minutes. This shows that he did not stop at all between
Somerset East and Cookhouse.

[27] The applicant’s counsel submitted that her client in his evidence had not been
sure whether he had checked the sketch plan before or after stopping at Somerset
East. If he had stopped to check the plan before rather than afterwards, this would
account – so the argument went – for the fact that his trip from Cookhouse to
Somerset East took 20 minutes as opposed to the 12½  minutes which the return
trip took. This argument, however, is incompatible with the tracking report. Although
the applicant only turned off the ignition in Somerset East 20 minutes after leaving
Cookhouse, he arrived in Somerset East within 11 minutes and then spent another 9
minutes driving around the town at a slow speed, consistent with someone looking
for an address. He certainly could not have spent any time deviating to a location
near Cookhouse. Apart from the matter of timing, the tracking report does not show
that he turned off the R63 on his way to Somerset East.
[28] The applicant also ran into difficulty when confronted with the two case
numbers he specified in his exculpatory statement as being the case numbers to
which the sketch plan related. One was a Cookhouse case, the other a Somerset
East case. He wrote the statement by hand and gave it to a secretary to type. The
Cookhouse case mentioned by him was a murder case where the accused was
sentenced on 21 January 2010, ie before the applicant’s trip. The Somerset East
case was a business robbery. The applicant claimed that the typist had made a
mistake with the Somerset East case and that the correct case was actually another
Cookhouse case. The notion that the secretary mis-typed ‘Somerset East’ where the
applicant had written ‘Cookhouse’ and that she had also got the case number
completely wrong is bizarre, particularly since there were no other typing errors in
this document and that there was in fact a Somerset East case with the numbers
typed by the secretary.
[29] In short, neither of the cases mentioned by the applicant in his exculpatory
statement were the cases for which the sketch plan was supposedly needed. His
version ultimately was that the sketch plan actually related to a Cookhouse stock
theft case. The sketch plan he purportedly produced on 13 February 2011 in relation
to the stock theft case has all the appearances of a bogus computer-generated
document without any meaningful features.

[30] Another fact which tells against the applicant is that if the purpose of the trip
was solely to check a sketch plan in the vicinity of Cookhouse, he would have
returned to Grahamstown by the same route he got to Cookhouse, namely on the
R350. Yet instead of turning south onto the R350 at Bedford, he travelled a
considerably longer distance on the R63 to Fort Beaufort where he stopped for a
minute or two before heading south onto the R67.
[31] When one adds, to all of the above, that despite the journey of 351 km the
odometer reading changed by only three kilometres, one can arrive at no other
conclusion than that the applicant undertook a private journey but arranged for the
odometer to be disconnected or reversed to conceal this fact, an operation which,
according to the State’s evidence, would not have been difficult for one who knew
what to do. Nobody else could plausibly have fiddled with the odometer; and it is
fanciful beyond all reason to suppose that the odometer coincidently malfunctioned
on the very weekend the applicant made unauthorized use of the vehicle.
[32] The applicant denied that an officer of his rank was obliged to seek
authorisation for the official use of vehicles. Botha’s evidence, supported by
documents, established the contrary beyond doubt. It was argued on the applicant’s
behalf that the regional court should not have had regard to Botha’s evidence
concerning the need for authorisation because this part of the applicant’s defence
had been foreshadowed in the cross-examination of the State witnesses. While this
is so, no objection was taken when Botha was led on the rules relating to
authorisation. On the contrary, he was cross-examined thereon. After Botha’s
evidence the magistrate afforded the applicant an opportunity to reopen his case
which was declined.
[33] The applicant’s counsel submitted that because Botha’s evidence indicated
that the applicant would not have needed authorisation for a trip taken within the
Grahamstown LCRC’s service area, the state needed to prove that Somerset East
was not within the Grahamstown LCRC’s service area. However it was never the
applicant’s case that he had not needed authorisation because he only travelled
within his own service area. Moreover, we know that the applicant on this trip
travelled to Fort Beaufort. De Klerk’s unchallenged testimony was that there was an

LCRC at Fort Beaufort, so the latter town could not have been within the
Grahamstown LCRC’s jurisdiction. In any event, jurisdiction would only matter if it
were reasonably possibly true that the applicant was using the vehicle for official
police business; the applicant was not permitted, even within his service area, to use
the vehicle for private purposes.
[34] The applicant’s counsel criticised the magistrate for emphasising the alleged
disconnection of the odometer, submitting that the charge in respect of the second
count did not allege that the applicant’s misrepresentation lay in the false odometer
reading. She also drew attention to the fact that the non-disclosure alleged in the
charge sheet was not a failure, in advance, to disclose the proposed trip but the
failure, after the event, to disclose that it had been undertaken. Her submissions
regarding the content of the charge are correct, although the preamble to the charge
highlighted the fact that the odometer reading had only changed by three kilometres
and this circumstance was fully canvassed in the evidence. During the course of oral
argument, she furthermore seemed to suggest that this count contained insufficient
particularity, as required by s 84 of the Criminal Procedure Act 51 of 1977 (CPA).
[35] Be that as it may, I do not consider that the formulation of the charge holds
out any prospect of success for the applicant because the conviction is sustainable
on the basis alleged, namely the applicant’s failure, after the event, to disclose the
trip. As a senior officer subject to the rules relating to the use of official vehicles, he
was under a duty to disclose his proposed use of the vehicle and to do so by way of
the prescribed application. Having failed to do so, he was under a duty, afterwards,
to disclose that he had used the vehicle and to seek ex post facto ratification.
Because of this duty, his silence constituted a misrepresentation by omission that he
had not used the vehicle. The disconnection of the odometer is simply a piece of
evidence in the overall picture of dishonesty. Moreover, the count is certainly not
amenable to quashing for want of particularity and the applicant, who had the benefit
of legal representation, could have requested further particulars in terms of s 87 of
the CPA.
[36] The applicant’s counsel argued that it was not proved beyond reasonable
doubt that the applicant’s failure to notify Botha or the SAPS was an omission

attributable to fraudulent intent. She referred us to S v Gardener & another 2011 (4)
SA 79 (SCA) where Heher JA in the context of the facts of that particular case,
identified nine factors which influenced the conclusion as to whether or not the
appellants had the intention to defraud the company of which they were directors
(para 35). In regard to the third factor – the opportunity to disclose – she pointed out
that the applicant’s evidence was that when he was confronted on the Monday
morning he had not yet got round to filling in the logbook, that the logbook was then
seized, and that it was only many months later that he was asked for an explanation.
For various reasons this argument has no prospects of success. Since the
applicant’s evidence about the trip was undoubtedly false, the only possible
inference is that he had no intention of ever disclosing the trip. His non-completion
of the logbook was not negligent tardiness but a deliberate decision. He had ample
opportunity of making disclosure, both by completing the logbook and by tendering
his explanation as soon as it emerged that there was something suspicious. He
chose not to do so, only responding when formally charged.
[37] The same applies to the first factor in Gardener, on which counsel also relied,
namely ‘[w]hat had to be disclosed, not so much as a requirement of law, but rather
as a matter of pragmatism’. Once it is concluded that the applicant’s explanation for
the trip was false and that its true purpose was unrelated to official police business,
there can be no doubt that as a matter of pragmatism he was under a duty to
disclose it and that his failure to do so was fraudulent. On the facts of the present
case, none of the other factors enumerated in Gardener would lead to a conclusion
favouring the applicant.
[38] I should mention that at the trial the defence sought to establish that race
relations at the Grahamstown LCRC were tense and that the applicant was being
victimised by white colleagues. We are unable on the record to form a view on the
legitimacy of this complaint but I am satisfied that it has no bearing on the present
application. A racially motivated campaign against the applicant would only be
relevant if it tended to show that evidence given against him was dishonest or
fabricated. In the present case, enquiries into the applicant’s conduct were not part
of a campaign against him; they were fortuitously prompted by the experiences of
Van Staden and De Klerk on 11 and 14 February 2011. They did not know what the

tracking report would say. They did not know that the applicant had used the vehicle
over the weekend. The applicant’s guilt was primarily established by the tracking
information (the content of which was largely confirmed by the applicant himself),
the absence of proper applications for authorisation and his hopeless attempts to
explain his movements.
[39] Finally, and in regard to sentence, this was a matter for the trial court. The
applicant would need to persuade an appeal court that there was a material
misdirection or that the sentence was shockingly severe. I do not think he has
reasonable prospects of demonstrating any such thing. Corruption and financial
dishonesty are rife in this country, sadly also in organs of state. The cases which are
prosecuted are the tip of the iceberg. Heavy sentences are warranted; and the
higher the position held, the more exemplary should the sentences be.
[40] The application is dismissed.

__________________
OL Rogers
Acting Judge of Appeal

APPEARANCES

For Applicant
L Crouse

Instructed by

Legal Aid, Port Elizabeth c/o Legal Aid,
Bloemfontein

For Respondent
T van Zyl

Specialised Crime Unit, Eastern Cape, c/o
National Prosecuting Authority, Bloemfontein