National Director of Public Prosecutions v Maziyana and Others (2563/2015) [2015] ZAECGHC 122 (3 November 2015)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO: 2563/2015

Date heard: 22 October 2015

Date delivered: 3 November 2015

NOT REPORTABLE

In the matter between:

NATIONAL DIRECTOR OF PUBLIC

PROSECUTIONS

Applicant

and

ZOLA MAZIYANA

First Respondent

ZUKISWA MAZIYANA

Second Respondent

TWELVE APOSTLES’ CHURCH IN CHRIST

Interested Party

JUDGMENT

PLASKET J:

[1] Mr Zola Maziyana and Ms Zukiswa Maziyana, the first and second respondents, are married to each other in community of property. Both have been charged with 53 counts of fraud, alternatively theft, and 122 counts of money laundering, a contravention of s 4(b)(ii), read with ss 1, 7A and 8(1) of the Prevention of Organised Crime Act 121 of 1998 (POCA).

[2] The applicant, the National Director of Public Prosecutions (the NDPP), applied successfully, in terms of s 38 of POCA, for an order preserving a substantial amount of the respondents’ property on the basis that that property was either an instrumentality of an offence or the proceeds of unlawful activities. Subsequent to this order being granted, the second respondent applied successfully to have her salary excluded from the preservation order.

[3] The party cited as an ‘interested party’, the Twelve Apostles’ Church in Christ (the TACC) is alleged to be the victim of the frauds that are counts one to 53.

[4] In these proceedings, the NDPP seeks the forfeiture, in terms of s 48(1) of POCA, of the preserved property. That property includes immovable property in East London, the value of improvements and renovations to a house in the Cungcweni Village, Idutywa, furniture, appliances and electronic equipment, two motor vehicles and credit balances in seven bank accounts.

The approach to the facts

[5] It is accepted by Mr Nyangiwe, who appears for the respondents, that if I accept the NDPP’s facts, the forfeiture order is justified. He argued, however, that I should accept the facts averred by the respondents and, in that event, I would have to dismiss the application.

[6] It is trite that, in applications where the facts are not common cause, the relief sought by an applicant may be granted if the applicant’s facts that are not in dispute and the respondent’s facts that are, justify such an order. See Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E-I; National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA), para 26.

[7] This rule is not absolute. In recognition of the fact that the very purpose of the application procedure, with all its advantages, may be thwarted by unscrupulous respondents, this court, many years ago, in Soffiantini v Mould 1956 (4) SA 150 (E) urged upon judges the use of a robust approach when necessary. Price JP stated in this regard (at 154G-H):

‘It is necessary to make a robust, common-sense approach to a dispute on motion as otherwise the effective functioning of the Court can be hamstrung and circumvented by the most simple and blatant stratagem. The Court must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so. Justice can be defeated or seriously impeded and delayed by an over-fastidious approach to a dispute raised in affidavits.’

[8] That robust approach, which envisages a departure from the Plascon-Evans rule set out above, applies to bare denials and uncreditworthy denials. It was set out thus by Corbett JA in Plascon-Evans at 634I-635C:

‘The power of the Court to give such final relief on the papers before it is, however, not confined to such a situation. In certain instances the denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact. If in such a case the respondent has not availed himself of his right to apply for the deponents concerned to be called for cross-examination under Rule 6(5)(g) of the Uniform Rules of Court and the Court is satisfied as to the inherent credibility of the applicant's factual averment, it may proceed on the basis of the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks. Moreover, there may be exceptions to this general rule as, for example, where the allegations or denials of the respondent are so far-fetched or clearly untenable that the Court is justified in rejecting them merely on the papers.’ (References omitted)

[9] In Zuma (para 26) Harms DP spoke of the court being entitled to decide an application of the applicant’s version, and reject the

respondent’s version on the papers, if the latter ‘consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched’ or is ‘clearly untenable’.

The facts

[10] In essence, the NDPP alleges that, in 2009, the first respondent was appointed as a proxy to represent the interests of the TACC in an investigation into what appeared to be the non-payment of certain fees that the TACC believed were due to it from Sanlam over a period of five years.

[11] While the investigation revealed that the required payments had been made, the first respondent falsely led the TACC to believe that certain fictitious employees of ‘the NPA’ or ‘the AFU’ – presumably intended to refer to the National Prosecuting Authority and the Asset Forfeiture Unit – had assisted him in the recovery of the fees and required payment of the costs they had incurred. He claimed that an amount of R70 million was involved.

[12] The TACC believed the first respondent’s representations and made numerous payments into the bank account of the second respondent in the belief that these amounts would be paid to the fictitious NPA or AFU employees. These payments totalled R6 863 300 and were paid from the accounts of both the TACC and its president, Professor Caesar Nongqunga.

[13] When the first respondent failed, on several occasions, to comply with the TACC’s request for supporting documentation concerning the payments, suspicion was aroused and a complaint of fraud or theft was duly made to the police.

[14] The second respondent, it transpired, transferred some of the tainted money into various other bank accounts (such as those of her children and her mother) and made various purchases of property, including an immovable property in East London. In this way, it was alleged, that respondents laundered the tainted money.

[15] On these facts, the NDPP argued that the property it wants forfeited is either the proceeds of crimes or the instrumentality of the crime of money laundering, or both.

[16] In addition to the usual forfeiture order, the NDPP has applied for an order to authorise payment of the realised assets, once forfeited and sold, and the credits in the respondents’ bank accounts, less bank charges, fees and disbursements, to the TACC, the victim of the offences.

[17] The respondents admit that the payments were made but claim that the reasons for the payments were innocent. In essence, they alleged that they are the victims of a conspiracy on the part of the TACC. The first respondent stated in this regard:

‘I wish to mention that the Interested Party uses the strategy of claiming that a person has committed an offence, report that to the police for investigation and getting the applicant to institute asset forfeiture proceedings against that particular person and thereafter get around to intervene in the proceedings to get the person’s property to itself. Two people who were employed by the TACC have had their properties forfeited in the same manner.’

[18] He stated that ‘the TACC has lied and made false and preposterous accusations’, that it was guilty of fraud and that it ‘involved the applicant herein to make an application for a preservation order and also to make the current application’.

[19] The first respondent denied that there was an investigation into whether Sanlam owed the TACC fees and that he was appointed as its proxy in the investigation. He also consequently denied that he ‘falsely led the TACC to believe that some “NPA or AFU employees” assisted me in the investigation and recovery of the affinity fees and that they incurred costs which the TACC had to pay’. He described these allegations as ‘fanciful’ and ‘devoid of truth’ and denied them with the contempt he said they deserved.

[20] He further denied that he made ‘numerous requests’ to the TACC to make payments into his wife’s bank account in order to pay the fictitious NPA or AFU officials but he admitted that the amount in issue in the fraud counts were paid into his wife’s account. He stated in this regard:

‘These amounts were paid into my account by Nongqunga for various things chief amongst was for my commission for work done. The other things were to buy traditional medicines for Nongqunga and also for the support of the Ex Mine Workers Union which Nongqunga supported me in its formation and running its affairs. He used to deposit money into my wife’s bank account and also into my account for these purposes. Also as I was driving the bus for the Church Choir and also driving his motor vehicles, money to fill up petrol in these vehicles was also deposited into my account.’

[21] The first respondent admitted that the house at Cungcweni Village was built with money that had come from the TACC. He said that the house had been finished in time for his and the second respondent’s wedding ceremony in December 2012. He claimed that Nongqunga attended the wedding ceremony, spoke at it and said that the first respondent was like a son to him. That statement, the first respondent said, was the truth. Moreover, having stated that he regarded Nongqunga as a father, he said that he confided in Nongqunga in respect of ‘all things personal to me’, that Nongqunga advised him that the second respondent was the ‘right person to get married to’, that Nongqunga helped him pay lobola and that Nongqunga ‘assisted in the arrangement of the wedding celebrations’.

[22] He accused the TACC of manufacturing ‘certain evidence’ which was presented to the NDPP. The example he gave was the resolution appointing him as the TACC’s proxy in the investigation. He claimed that this document was a forgery, manufactured years after the event. The basis for the allegation of forgery is that the letterhead of the TACC upon which the resolution, dated 6 December 2009, is typed contains a reference to a website but the TACC only registered its website in 2010 and that, prior to May 2013, the TACC’s letterhead did not contain a reference to a website at all.

[23] In order to explain the payments into the second respondent’s account, the first respondent alleged that this was Nongqunga’s idea: he had suggested that ‘since I am now married it is my wife who should control the financial affairs of my house’ and Nongqunga then said that he would deposit the first respondent’s commission into the second respondent’s account.

[24] He sought to explain the reference to ‘NPA’ as the description of many of the transactions. He stated that, while Nongqunga never explained the reference to him, he surmised that it had something to do with the Ex-Mine Workers’ Union which he ran and which the TACC supported financially. He referred to a letter, dated 15 June 2012, in which Nongqunga apparently promised to pay him commission (of about R10 million) and to support the union. It is stated in the letter that Nongqunga ‘took the responsibility of supporting the Non-Profit Association (NPA) of the ex-mine workers...’.

[25] Despite the large amounts involved, the first respondent stated that he did not know how much was owed to him for commission. When the TACC was able to pay, Nongqunga deposited money and the first respondent simply ‘relied on his generosity’. In respect of the commission that he claimed he was paid on the sale of DVDs and CDs, he said that he would collect the products from Nongqunga’s house, sell them and ‘cash in directly to him’. He did not say how the commission was calculated, and did not appear to know. The above items, as well as church uniforms and MTN contracts, were sold to ‘congregants and church goers’ while the choir he had transported to church services was singing.

[26] Finally, it would appear that Nongqunga suddenly turned on the first respondent because, in his capacity as an official of some sort of the Ex-Mine Workers’ Union, he had criticised the government. The first respondent had this to say about Nongqunga’s role in his and his wife’s predicament:

‘I had no reason to destroy Nongqunga. He is the pillar of my strength and has as aforesaid assisted me financially in all the things that I did. It is clear though that when I criticised the government of the day in relation to the Marikana issue I stepped into the hornet’s nest. When he admonished me to desist talking ill about this government as they had a close relationship with it and I refused, he directed his anger and venom towards me. I must also mention that it is clear from the letters written by Nongqunga that auditors are seeking answers, he decided to use me as the scapegoat and create the lies that I defrauded the church and him to pay me the sums of money he paid in order to pay these fictitious people they refer to as NPA officials. This is all lies.’

[27] Not surprisingly, a number of the first respondent’s allegations were refuted in the NDPP’s replying papers.

[28] First, the NDPP denied the first respondent’s allegation that two other members of the TACC had had their property forfeited in terms of POCA. Mr Nzengu, who deposed to the founding and replying affidavit on behalf of the NDPP stated that this case was the first involving the TACC that the NDPP had dealt with.

[29] Secondly, to the extent that the first respondent appears to have denied being an employee of the TACC and being paid a stipend, a page of his bank statement dated 29 February 2012 was attached to the replying affidavit to prove the payment of a stipend of R3 860. In addition, proof of payment of unemployment insurance was attached to the affidavit of the TACC’s administrator, as was proof of payment of the stipend in individual months in 2011, 2012 and 2014.

[30] Thirdly, issue is taken with the first respondent’s assertion that the payments into his wife’s account were for commission that he had earned. Fourthly, it is denied that the resolution in which the first respondent was appointed as the TACC’s proxy was forged.

[31] Fifthly, the close relationship between the first respondent and Nongqunga, as alleged by the former, was denied. Sixthly, it was denied that the first respondent sold DVDs, CDs, MTN contracts, calendars and church paraphernalia, and earned commission doing so.

[32] Seventh, Nongqunga stated that the TACC created a website in 2004, letterheads with reference to the website were first used in 2008 or 2009 and that staff members ‘did not always used the correct letterheads with the websites on’. Eighth, Nongqunga denied being ‘close to’ the first respondent, giving him marriage advice, helping him pay lobola or assisting him with his wedding celebrations.

[33] The contents of the letter of 15 June 2012, Nongqunga stated, were not true and it was not written by him. He had never heard of a non-profit association and used the letters ‘NPA’ to record transactions meant to pay, on the advice of the first respondent, members of the National Prosecuting Authority in the Sanlam investigation.

[34] The point was also made, with reference to the letter, that a promise to pay commission of R10 million would never have been made and, even if it had been, the TACC’s board ‘would not have allowed such a ridiculous promise to be implemented’, whether by Nongqunga or anyone else.

Assessment

[35] Despite these areas of disagreement, a number of facts were common cause or not in dispute. First, reference was made to ‘NPA’ in the transaction description in respect of many of the payments into the second respondent’s account. Secondly, all of the disputed payments were made by the TACC to the second respondent. Thirdly, the payments were not utilised to pay the costs of the investigation into the payment of fees by Sanlam to the TACC. Fourthly, the funds were used for the personal benefit of the respondents.

[36] It cannot be denied by the respondents that a contract for the payment of certain fees to the TACC was entered into between it and Sanlam. A resolution is recorded to the effect that the TACC was initiating an investigation into whether it had been fully paid in terms of that agreement. Furthermore, a resolution, on the face of it adopted at a special meeting of the TACC’s executive committee on 9 December 2009, stated that the first respondent ‘be appointed as the church Proxy and is commissioned by the church to assist in the finalisation of the claim for the church funds that were allegedly paid by SANLAM to an incorrect bank account’.

[37] In order for the respondents’ version to be credible, I would have to accept that: (i) the TACC, having been manipulated by Nongqunga and in order to dishonestly make money at the respondents’ expense, deliberately set about manufacturing false charges of fraud against both of the respondents, having, over a number of years, paid the first respondent what was lawfully due to him; (ii) it forged a document in order to create the false impression that it had appointed the first respondent as its proxy in the investigation into the short-payment by Sanlam of fees due to it; (iii) at the heart of this conspiracy was Nongqunga, a man the first respondent regarded as a father figure, close friend and advisor; and (iv) despite Nongqunga’s close friendship with the first respondent and his monetary support for the Ex-Mine Workers’ Union founded by the first respondent, Nongqunga suddenly turned on the first respondent because he had criticised the government.

[38] With respect, this version is outrageously improbable and lacks any credibility. It is the archetypal uncreditworthy denial of the NDPP’s allegations and is palpably implausible, far-fetched and clearly untenable. It can thus be rejected on the papers. On the other hand, I am satisfied that the NDPP’s factual allegations are inherently credible and I accept them. I am satisfied that no purpose would be served in referring the matter to oral evidence.

The result

[39] The jurisdictional requirements for the grant of a forfeiture order have been satisfied. In addition, having accepted the NDPP’s

facts and rejected those of the respondents, a case has been made out that the property that is the subject matter of this application is indeed an instrumentality of the offence of money-laundering and the proceeds of unlawful activities.

[40] I accordingly make an order in the terms contained in the draft attached to the notice of motion.

__________________

C Plasket

Judge of the High Court

APPEARANCES

For the applicant: M Wolmarans of NN Dullabh & Co

For the respondents: X Nyangiwe instructed by Yokwana Attorneys