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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 472/12
Not Reportable

In the matter between:

TREVOR BRIAN ROBINSON

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Robinson v State (472/12) [2013] ZASCA 77 (30 May 2013)

Coram:
PONNAN, TSHIQI JJA, ERASMUS, PLASKET and MBHA AJJA

Heard:
22 May 2013

Delivered:
30 May 2013

Summary:
Criminal Law – whether the appellant was correctly convicted on two
counts of fraud – whether the trial court erred in finding that the
appellant made false representations to the complainant – whether the
court a quo erred in finding that the appellant had submitted the alleged
fraudulent invoices to the complainant and thereafter demanded
payment in respect thereof.

ORDER
On appeal from: North Gauteng High Court (Pretoria) (Wright AJ and Prinsloo J
sitting as court of appeal ):

1.
The appeal is upheld.
2.
The order of the court a quo is set aside and in its stead is substituted with the
following:
‘(a)
The appeal of both appellants succeeds and their convictions and sentences
imposed pursuant thereto are set aside.’
___________________________________________________________________

JUDGMENT
___________________________________________________________________

ERASMUS AJA (PONNAN and TSHIQI JJA and PLASKET and MBHA AJJA
concurring):

[1] The appellant, together with a non-natural juristic entity that he allegedly
represented, was charged and convicted in the Oberholzer Regional Court on 31
counts of fraud.  Both appealed to the North Gauteng High Court. The appeal of the
juristic entity was wholly successful. In so far as the appellant was concerned, the
appeal succeeded in all, save two of the counts. The further appeal solely in respect
of the convictions on those two charges is with the leave of the high court.

[2] The complainant, Goldfields International Mining South Africa (Pty) Ltd,
operates the Driefontein mine in the district of Oberholzer. The supply of hot water to
the change rooms for workers was inadequate and had to be rectified as a matter of
urgency. Oberholzer Timber and Hardware CC (Timber and Hardware), of which the
appellant was a member and who was a supplier and contractor of the complainant
for many years, was requested to and did submit a quotation for the work required.

On 3 June 2009 Timber and Hardware submitted two quotes that formed the subject
matter of the charges herein, for cladding of piping and associated fittings to two
areas on the site; 515 metres at the ‘living out change house’ to the value of
R94 801,66 and 630 metres at the ‘union men’s and official change house’ to the
value of R111 524,35. Each quotation had an additional charge of R75 000 for
‘bends’, ‘tees’, ‘reducers’ and ‘taps’. In respect of both these quotations it included a
sentence that read ‘[o]nly an estimate can be given, a bill will be given on completion
of application’.

[3] The said quotations were accepted by the complainant and the work was
carried out by a sub-contractor on behalf of Timber and Hardware, in terms of a
sitework agreement. The agreement was signed on behalf of Timber and Hardware
by the appellant and on behalf of the complainant by a Mr Patel, the Unit Manager
Procurement. The quotations found its way into the agreement. Mr Patel conceded
during his evidence that they could have been interpreted to mean that a final
reconciliation could be done ‘once the job is completed’.

[4] After the work was carried out, Mario Nieuwoudt, an employee of Timber and
Hardware, presented two invoices dated 24 July 2009 to the complainant. The
amounts on the invoices were identical to those reflected on the quotations save for
the ‘bends’, ‘tees’, ‘reducers’ and ‘taps’, which were not included. The invoices were
approved by Buys and sent to the accounts’ person at the complainant (Ms Sale) for
payment. Buys confirmed that Nieuwoudt told him at the time of the presentation of
the invoices that the work charged for was incomplete. Buys was therefore aware at
the time of signing off on the invoices that there was still outstanding work to be
done. He was however satisfied that payment could be made. It is important to note
that the invoices made no reference to meterage. On 3 August 2009 the invoices
were approved for payment by the complainant through Mrs Sale.

[5] On 4 September 2009 Mario Nieuwoudt and Ms Sale did a final measurement
as a result of a later invoice presented by Timber and Hardware that prompted an
enquiry. (This invoice is however irrelevant to the charges upon which the appellant
was convicted.) The physical measurements differed from the meterage stated in the
quotations. The evidence of Mrs Sale was that the measurement was done in order

for the parties to agree on the meterage. That discrepancy appears to have triggered
the complaint.

[6] There is no evidence that the invoices that were submitted were generated by
the appellant, submitted by him or that he had any role in the preparation thereof. In
fact they were submitted by Mario Nieuwoudt after the work was done by the sub-
contractor. There was thus no evidence that the appellant had made any
misrepresentation - much less a fraudulent one - that had induced the complainant to
act to its prejudice. It had to follow therefore that the conviction could not stand.

[7] In the result it is ordered:
1.
The appeal is upheld.
2.
The order of the court a quo is set aside and in its stead is substituted with the
following:
‘(a)
The appeal of both appellants succeeds and their convictions and sentences
imposed pursuant thereto are set aside.’

________________________

N C ERASMUS

ACTING JUDGE OF APPEAL

APPEARANCES
APPELLANT:

J L C J van Vuuren SC

Instructed by:

Jooste Slabbert & Moodie, Carletonville

Symington & De Kok, Bloemfontein

RESPONDENT:

P W Coetzer

Instructed by:

Director of Public Prosecutions, Pretoria

Director of Public Prosecutions, Bloemfontein