S v Mtshabe (62/05) [2006] ZAECHC 80 (25 July 2006)

REPORTABLE

IN

THE HIGH COURT OF SOUTH AFRICA

(TRANSKEI PROVINCIAL DIVISION)

CASE NO: 62/05

In the matter between:

THE

STATE

vs

NTSIKANE Z. MTSHABE

Date Heard: 18 April 2006 – 21 April 2006 & 12 May 2006

Date Delivered: 26 July 2006

Summary: Fraud – misappropriation – applicable principles – accused’s version – test to be applied

_____________

JUDGMENT

CHETTY, J:

[1] The accused is an attorney, who practiced and continues practicing under the name and style of N.Z Mtshabe Incorporated attorneys at Mthatha and Engcobo. He is its sole director. He was admitted as an attorney during 1995 and commenced practicing for his own account on the 11th January 1996. The charge preferred against him is one of fraud in contravention of s 167 of the Transkeian Penal Code 1983 alternatively theft in contravention of s 132 of the Code. The gravamen the charge relates to the submission of 15 statements of account to the office of the Mthatha State attorney totaling some R458 406.

75. This amount was paid to the accused’s firm over a period of time by the registrar of the High Court, Mthatha in the form of warrant vouchers which were duly deposited in the firm’s banking account. These statements of account were received in evidence as exhibits F1 – F15. The accused pleaded not guilty to the charge and declined to proffer a plea explanation. Written admissions in terms of s 220 of the Criminal Procedure Act were however handed in as Exhibit A which encapsulates the accused’s defence. Its entire reproduction is unavoidable as it embodies the edifice of his defence to the charge.

“1. That the accused was a practicing attorney and the sole director of the private company namely N Z MTSHABE INCORPORATED with Co. No. 96/0016 during the relevant times mentioned in the indictment.

That various individuals as per Column 3 of Schedule 1 of the indictment, instituted proceedings against the Government Department as indictment in Column 4 of the said Schedule.

That the office of the State Attorney instructed the accused’s Company to appear on behalf of the State and/or the various said Government Departments.

That the accused’s Company duly accepted these mentioned instructions.

That the accused’s office submitted the 15 statements of account (as mentioned in Schedule 1 of the indictment) to representatives of the Government for payment during the time period o 3 March 1998 and 10 June 1998.

That the information as depicted in Schedule 1 of the said indictment is a true reflection of the facts contained therein.

That the State Attorney, Mthatha approved all the payments as reflected in the said Schedule.

That all the said Statements of Account were duly paid out to the accused’s company by the Registrar Mthatha between the 10th March of 1998 and the 10th of July 1998.

That all warrant vouchers (as mentioned in Column 7, and for the total amounts as mentioned in Column 8 of Schedule 1) were deposited into the bank accounts of the accused’s Company.

I further admit that the documentation handed in as Exhibits B-J are true copies of the original documentation.”

[2] It will be gleaned from the aforegoing and the uncontroverted evidence to which I will in due course allude to that there is no dispute that:-

The accused received instructions from attorney Mnyamana of the Mthatha State attorneys office. Those instructions were to act for the defendants, the Minister of Defence and Police in 6 separate actions instituted against the latter by the individual plaintiff’s to wit N.A Patakubi; Luvuyo Makaza; Sakele Matomane; Vuyisile Tyiso; Gcobani Maqubela and J. Mbali issued out of the Mthatha High Court for unlawful arrest and detention. It is common cause that the cause of action in each of the 6 matters was identical and related to an incident which occurred on 25 February 1995 when the plaintiffs were arrested and detained. As adverted to earlier, fifteen statements of account were submitted, the first seven dated 3 March 1998 (F1 and F2); 6 April 1998 (F6 and F7); 14 April 1998 (F5) and 20 April 1998 (F3 and F4) respectively. They are identical in all respects, commence on a letterhead of the accused’s firm, designating the accused as the author and concluding with the firm’s name and a signature.

These statements of account form the genesis of the State’s case and may conveniently be compartmentalized into 3 distinct categories, viz the preliminary stage (F1 – F7), the engagement of counsel stage (F 8, 9, 12, 13, 14 and 15) and the obtaining of advice on evidence stage (F 10 and 11). F 1 – F 7 deal with the period 6 February 1998 when the accused was engaged to represent the defendants and culminated on the 3 March 1998 when, according to each of the statements, the work performed is detailed on each statement of account as - “attending to draw the statement, attending to serve the same to client”. Each commences with a reference to 6 February 1998 and concludes with the date reference 3 March 1998. Save for the amounts which differ in some instances F 1 – F 7 are virtually identical. Each is addressed to the government attorney, Botha Sigcau building, Umtata and bears the reference “Mtshabe/1n”. Its reproduction is unavoidable. The Patakubi statement (F1) as an example reads as follows:-

“The Government Attorney

Botha Sigcau Building

UMTATA

Attention MR MYAMANA / TSHIKI

Dear Sir

Re: MINISTER OF DEFENCE AND POLICE VS N.A PATAKUBI

STATEMENT OF ACCOUNT

Dr VAT

06/02/98 Received instructions to defend

the matter; consulted with the

client correspondent; perusal of

the letter of instructions 2858.95

09/02/98 Attending to write letter to client;

attending to serve same, telephoned

Police to inform of the transfer of

File; telephoned Defence force in

Pretoria 750.00

10/02/98 Letter to Police Force for the

transfer of files, Drawn Notice of

Withdrawal, drawn the Notice of

Acting, attending to serve same to

Plaintiff and to Court 1500.00

13/02/98 Drawn letter to Adv Pakade, attending

to serve the same, copies thereof 350.00

16/02/98 Consultation with Police (Nocala) on

various issues, telephoned her for next

consultation 3 750.95

16/02/98 Drawn Discovery Notices, attending to

serve the same to Court and to Plaintiff 350.00;

Perusal of various documents which were

summons

Notice to Defend, Rule 26, Defendant’s

Plea and Correspondence between client

and Plaintiff, Attending on various

telephone calls, making copies of

statements and letters, perusal of statutes

referred to in Plea 4 850.00

03/03/98 Attending to draw the statement, attending

to serve the same to client 350.00

Sundry and Disbursements 2 650.00

-------------

Sub Total 17 409.90

Add VAT 2 437.39

Stamps 2. 45

------------

Total due to us 19 849.94”

[3] The only difference between F1 – F7 relate to the amounts claimed. In F1 and F2 the amount claimed is the same. Similarly in F3 and F7. The difference in the amounts claimed is readily apparent from a comparison of F1 – F4. In F3 and F4 the amount claimed for work performed on 9 February 1998 is increased by R100.00; on 16 February 1998 by R1000.00 and sundry and disbursements by R1000.00. F5 differs from F1 and F2 in one respect only - the amount claimed in respect of “sundry and disbursements” is increased by R1000.00 with the resultant increase in the VAT charged. The only difference between F6 and F3 and F4 is that the amount claimed for “stamps” is increased by R1.00.

[4] The next category of statements of account and to which I referred to as the engagement of counsel stage are exhibits F 8, 9, 12, 13, 14 and 15. The immediately obvious distinguishing feature between this and the following category of statements from F1 – F7 is the complete absence of any date when the stipulated work was performed. I shall in due course allude to this. F8, 12 and 14 are cast in identical terms and so too F 9, 13 and 15. The only distinguishing and anomalous feature between F 8, 9, 12, 13, 14, and 15 is that in F8, 12 and 14 there is an additional claim in respect of “counsel’s fees” and “our two thirds” of counsel’s fees. They are identical in all other respects. To illustrate this similarity the reproduction of one of the statements is again unavoidable. The statement in respect of S Matomane (F8) is as follows:-

“Government attorneys

Botha Sigcau Building

Dear Sir Att: Mr Mnyamana

Re: S MATOMANE VS MINISTER OF DEFENCE AND ANOTHER

____________

STATEMENT OF ACCOUNT: ATTORNEY & OWN CLIENT SCALE

DR

Attending to consultation with correspondent

To brief counsel; brief Counsel to prepare advise

On evidence; letter to counsel 2500.00

Preparing Rule 35; Rule 37 Notices; letters to

Plaintiff’s attorneys; attending to serve to court and

plaintiff’s attorneys. 950.00

Attending to receive Rule 35 Notices from plaintiff;

perusal; receiving letter from plaintiff for

Extension of time; answering client thereof 1050.00

Attending to consultation; preparation and

Discussion with adv Pakade; two days in Durban

before Adv Alkena, SC 2500.00

Attending to consultation with Adv Alkena SC in

Durban; preparations; drawing files (2/3 of Counsel’s

Fees); one day 2900.00

Preparation and perusal of statement of

Lwana; Bezuidenhout; Steenkamp; Mdunge;

Mthengo; Grobelaar and nine others; referring to

Affidavit prepared by Brig Mbebe together with

Annexures thereto 5750.00

DISBURSEMENTS AND MISCELLANEOUS EXPENSES

Traveling from Umtata to East London Airport

For 3 hours at 247 km at R2.50 per km and back

To Umtata (494 x R2.50) 1235.00

Airport traveling from East London to Durban and back 2468.00

Car hire at Avis in Durban for three days of Consultation

From 23/04/98 to 26/04/98 2197.68

Traveling time; Umtata/ East London/ Durban

(10 hours at R4.00 per hour) 4000.00

Meals and Hotel accommodation for three days 2622.00

Sundry and Miscellaneous; drawing this Statement;

telephone calls; serving the statement 850.00

SUB TOTAL 29 022.68

ADD VAT 4063.18

COUNSELS FEES (ADV PAKADE) 18949.60

COUNSELS FEES (ADV ALKEMA, SC) 1710.00

-----------

20659.60

Add counsel’s fees 20659.60

Our two thirds thereof 13773.07

Total due including Counsel’s fees R67518.53”

[5] The last category of statements viz the advice on evidence stage, exhibits F 10 and 11 are identical in all respects. F10 reads as follows:-

“The Government Attorney

Botha Sigcau building

Att: Mr Mnyamana

Re: JONGILIZWE

MBALI VS MINSTER OF DEFENCE AND ANOTHER

______________

STATEMENT OF ACOUNT

DR VAT DIS

Attending to advise on evidence 500.00

Counsel’s fees 2000.00

2/3 Counsel’s fees 1333.33 256.67

TOTAL 1833.33

ADD VAT 256.67

ADD COUNSEL’S FEES 2000.00

----------

TOTAL DUE TO US 4090.00

----------”

[6] I have set out these statements in great detail by reason of the pivotal role they play in relation to the evidence adduced by the various witnesses who testified on behalf of the State. As adumbrated hereinbefore the gravamen of the charge is that by submitting the statements of account the accused misrepresented that he performed the services as stipulated in the statements of account and/or; he was entitled to claim the amount stipulated in each statement of account and/or; he was entitled to receive the amounts stipulated in each statement of account and/or; he performed proper and reasonable professional services which entitled him to claim the amounts specified in each statement of account and/or; that all claims submitted were for professional services rendered; that no claim or parts thereof were duplicated and/or; that he did not claim more than once for the same service rendered; that he had duly performed the work done as reflected on the statements of account, had incurred expenses and paid disbursements whereas in truth the accounts were not only hugely inflated, excessive and exorbitant, but not based on the tariff of fees laid down in Rule 70 of the Uniform Rules of Court and moreover duplicated. Details of the accused defence, initially suppressed, emerged during the trial and compel an examination and analysis of the evidence of the accused, the State

witnesses, Hechter, Pretorius etcetera apropos exhibits F1 – F15. Before I proceed to consider and evaluate that evidence it is apposite to refer to the dictum of Nugent J in S v Van Der Meyden 1999 (1) SA 447 (W) where the learned judge, whilst emphasizing that a trial court is required to consider the evidence adduced holistically, elaborated on the criminal standard of proof as follows at p488f-450b:

“The onus of proof in a criminal matter is discharged by the State if the evidence establishes the guilt of the accused beyond reasonable doubt. The corollary is that he is entitled to be acquitted if it is reasonably possible that he might be innocent (see, for example, R v Difford 1937 AD 370 at 373 and 383). These are not separate and independent tests, but the expression of the same test when viewed from opposite perspectives. In order to convict, the evidence must establish the guilt of the accused beyond a reasonable doubt, which will be so only if there is at the same time no reasonable possibility that an innocent explanation which has been put forward might be true. The two are inseparable, each being the logical corollary of the other.

In whichever form the test is expressed, it must be satisfied upon a consideration of all the evidence. A court does not look at the evidence implicating the accused in isolation in order to determine whether there is proof beyond reasonable doubt, and so too it does not look at the exculpatory evidence in isolation in order to determine whether it is reasonably possible that it might be true. In R v Hlongwane 1959 (3) SA 337 (A), after pointing out that an accused must be acquitted if an alibi might reasonably be true Holmes AJA said the following at 340H-341B, which applies equally to any other defence which might present itself:

‘But it is important to bear in mind that in applying this test, the alibi does not have to be considered in isolation . . . . The correct approach is to consider the alibi in the light of the totality of the evidence in the case, and the Court’s impressions of the witnesses.’

Counsel for the accused referred us to three cases which are frequently cited in this Court in elaboration upon that test. In S v Kubeka 1982 (1) SA 534 (W) Slomowitz AJ said the following at 537F-H:

‘whether I subjectively disbelieve (the accused) is not the test. I need not even reject the State case in order to acquit him. I am bound to acquit him if there exists a reasonable possibility that his evidence may be true.’

That passage does no more, in effect, than to reiterate that the conclusion of a criminal court is not to be reached merely by choosing what it considers to be the better of two competing versions (Hlongwane’s case supra at 341A; S v Singh 1975 (1) SA 227 (N) ). Purely as a matter of logic, the prosecution evidence does not need to be rejected in order to conclude that there is a reasonable possibility that the accused might be innocent. But what is required in order to reach that conclusion is at least the equivalent possibility that the incriminating evidence might not be true. Evidence which incriminates the accused, and evidence which exculpates him, cannot both be true – there is not even a possibility that both might be true – the one is possibly true only if there is an equivalent possibility that the other is untrue. There will be cases where the State evidence is so convincing and conclusive as to exclude the reasonable possibility that the accused might be innocent, no matter that his evidence might suggest the contrary when viewed in isolation.

S v Munyai 1986 (4) SA 712 (V) at 715G, to which we were also referred by counsel, should accordingly, in my view, be approached with some circumspection. At 715G Van der Spuy AJ interpreted the abovementioned passage from Kubeka’s case as follows:

‘in other words, even if the State case stood as a completely acceptable and unshaken edifice, a court must investigate the defence case with a view to discerning whether it is demonstrably false or inherently so improbable as to be rejected as false.’

It is difficult to see how a defence can possibly be true if at the same time the State’s case with which it is irreconcilable is ‘completely acceptable and unshaken’. The passage seems to suggest that the evidence is to be separated into compartments, and the ‘defence case’ examined in isolation, to determine whether it is so internally contradictory or improbable as to be beyond the realm of reasonable possibility, failing which the accused is entitled to be acquitted. If that is what was meant, it is not correct. A court does not base its conclusion, whether it be to convict or acquit, on only part of the evidence. The conclusion which it arrives at must account for all the evidence. Although the dictum of Van der Spuy AJ was cited without comment in S v Jaffer 1988 (2) SA 84 (C), it is apparent from the reasoning in that case that the Court did not weigh the ‘defence case’ in isolation. It was only by accepting that the prosecution witness might have been mistaken (see especially at 89J-90B) that the Court was able to conclude that the accused’s evidence might be true.

I am not sure that elaboration upon a well-established test is necessarily helpful. On the contrary, it might at times contribute to confusion by diverting the focus of the test. The proper test is that an accused is bound to be convicted if the evidence establishes his guilt beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is reasonably possible that he might be innocent. The process of reasoning which is appropriate to the application of that test in any particular case will depend on the nature of the evidence which the court has before it. What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false; some of it might be found to be unreliable; and some of it might be found to be only possibly false or unreliable; but none of it may simply be ignored.”

[7] Hechter and Pretorius were members of the Special Investigating Unit (the SIU) established by proclamation pursuant to the enabling legislation the Special Investigating Units and Special Tribunals Act 74 of 1996 (as amended) (the Act). In terms of its preamble the SIU was, inter alia, established for the purpose of investigating serious malpractices or maladministration in connection within the administration of state institutions, state assets and public money. During June 1998, Proclamation 71 of 1998 was gazetted. It authorized the SIU to investigate payments made to various attorneys and advocates in matters where they had been instructed by the State attorney, Mthatha to act on its behalf. Hechter was the office manager of the Umtata SIU and the task of investigating these payments fell to him. The only other investigative person in the office was Pretorius and in truth, the entire investigation was done by her. Hechter’s involvement was peripheral and seems to have been limited to receiving updated reports concerning the progress made by Pretorius and, acting thereon. It was obvious during his testimony that the passage of time has eroded his memory and that his recollection of events is not altogether clear. What is important, however, is that having been appraised by Pretorius of the results of her investigation, he felt obliged to refer the results of the

investigation to the office of the director of public prosecutions. That decision evoked lengthy and arduous cross-examination, much of it pointless. Hechter was at pains to point out that in terms of s 4 (1) (d) of the Act he was obliged to refer evidence which pointed to the commission of an offence to the relevant prosecuting authority. The evidence adduced vindicates that decision. The important aspect of Hechter’s testimony relates to Mr Mnyamana who, it is common cause was charged with fraud in a similar matter concerning another attorney. Mnyamana however died during the course of that trial. It was put to Hechter during cross-examination that no charges were preferred against Mnyamana in relation to the present matter and the response sought to be elicited, to the effect that no collusive fraudulent relationship existed between the accused and Mnyamana. Although Hechter conceded that he could not establish that the accused had colluded with Mnyamana that concession accords neither with the facts nor the probabilities. It is an aspect to which I will in due course expand upon.

[8] It is common cause that upon receipt of each statement of account emanating from the accused’s firm Mnyamana approved payment of the accounts. He did so by not only inscribing the words “Please pay out” or “plse pay out” followed by his signature and a date at the end of each of F 1 to F 15 (with the exclusion of exhibit F 5) but moreover appended a certificate in terms of the relevant treasury regulations thereto which read:-

“CERTIFICATE IN TERMS OF K 2.2.8 OF THE TREASURY INSTRUCTIONS

(a) Goods Supplied

that the supplies were in fact required for official purposes and for an approved service, were on receipt correct and in good condition and that the receipt of the supplies had been entered in the records;

that the rates are in accordance with a contract or that they are fair and reasonable and that the supplier is entitled to payment.

(b) Services rendered

that the services rendered were necessary for official purposes and were satisfactorily carried out, and that the charges were according to the relative tariff, contract or agreement, or otherwise are fair and reasonable and that the supplier is entitled to payment.”

[8] It is common cause that F5 was not signed by Mnyamana but by the then acting head of the Mthatha State attorney’s office, Mr Matiwane (Matiwane). Although Pretorius was reluctantly constrained to concede that F 5 and F 7 could in all probability have been innocently duplicated it is important to note that Mnyamana authorized the payment of F 7 prior to Matiwane authorizing the payment of F5. It in fact predates F 5 by exactly one week. I will deal with this in more detail later in the judgment.

[9] Both Hechter, Pretorius and Mr Nick Du Preez (Du Preez), a legal costs consultant adverted to the fact that the fees charged by the accused were not in accordance with the tariff laid down in Rule 70 of the Uniform Rules of Court, were excessive and grossly inflated. There is no question that the fees charged by the accused are extravagantly exorbitant, a fact which the accused himself admitted in the acknowledgement of debt (exhibit O). In his report (exhibit B) Du Preez made a comparative analysis of the fees charged by the accused and the tariff of fees laid down in Rule 70 and concluded that the fees charged were exorbitant and tantamount to overreaching. That conclusion is to my mind unassailable, but does overreaching equate to fraud. In Law Society of the Cape of Good Hope v Tobias and Another 1991 (1) SA 430 (C), Berman J, with reference to the aforegoing question stated as follows at p 434H–435B:-

“Before turning to the allegedly agreed fees and the quantum thereof, it is convenient at this stage to deal with the concept of overreaching in our law. Now when an attorney undertakes to do work in that capacity he prima facie undertakes to do so for legitimate fess that he can charge, see Hitchcock v Raaff 1920 TPD 366 at 368 and it is unprofessional, unworthy and dishonorable conduct on his part to charge a client exorbitant fees, see Law Society, Cape v Mgwigwi 1964 (4) SA 789 (E) at 790G-791C. An attorney is not, however, necessarily guilty of misconduct because he chooses to put an extravagant value on his services. If the prospective client is a free agent, if there is neither fraud nor duress and no advantage taken of him, then if the client chooses voluntarily to agree to an extravagant fee, the attorney will not be guilty of misconduct, see Cape Law Society v Luyt 1929 CPD 281 at 287. On the other hand where an attorney, on presenting his bill to his client, which was an excessive amount, immediately got his client to agree to pay the fees set out therein and to waive any right to a taxed or detailed bill of costs, he was held to have taken an undue advantage of his client and his conduct to have been a breach of his professional duty, see Luyt’s case supra at 290.

The word ‘overreach’ is defined, insofar as it is relevant to this matter, as ‘. . . . circumvent, outwit, cheat in dealing’ (the Oxford English Dictionary 1961 vol. 7 at 318) or ‘. . . to outwit or get the better of’ (Chambers Twentieth Century Dictionary). Where an attorney and his fees are concerned, the word ‘overreach’ may be taken as conveying the extraction by the attorney from his client, by the taking by the former of undue advantage in any form of the latter, of a fee which is unconscionable, excessive or extortionate, and in so overreaching his client that attorney would be guilty of unprofessional conduct.”

[10] I wholeheartedly endorse the learned judge’s reasoning and emphasize that it is implicit from the judgment that overreaching, in situations equating to fraud or duress, may amount to misconduct warranting an attorney’s removal from the profession. This is however not the proper forum to pronounce upon such issues.

This is a criminal case of fraud and nothing more.

[11] However, the evidence hereanent is not without significance, regard being had to the testimony of Matiwane. His uncontroverted evidence was that private practitioners engaged to perform work on behalf of the State attorney were obliged to levy charges according to the tariff of fees laid down by Rule 70 and that no deviation from the tariff was permitted. The particular instructing attorney was required, on receipt of a statement of account from a private practitioner engaged by him, to examine the statement of account to ensure that it complied with the tariff laid down by Rule 70; only then to append the certificate thereto prior to forwarding it to him, or, in his absence, the next most senior attorney in the office, who would them write the words “please pay” on the statement of account. It is common cause that save for exhibit F 5 which bears Matiwane’s signature below the words “please pay” all the other 14 statement of accounts bear the signature of Mnyamana. It was readily conceded by Matiwane that in appending his signature to a statement of account and inscribing the words “please pay” thereon he was a mere rubber stamp but as he patiently tried to explain, the attorneys in the office were experienced persons upon whom he could rely to perform their duties properly. That being so he felt perfectly at ease in appending his signature to the statements of account without further ado.

[12] The evidence adduced on behalf of the State to the effect that the fees charged by the accused were not in accordance with the tariff of fees prescribed by Rule 70 elicited inordinately lengthy cross-examination. That body of evidence is, as adverted to hereinbefore, not relevant to the issues which fall for determination and can largely be ignored.

[13] The factual matrix surrounding the aftermath of the payments received by the accused was extensively adverted to by Pretorius. As adumbrated hereinbefore, she was the person directly involved thereanent and reported her progress to her immediate superior, Hechter from time to time. Pretorius is a qualified attorney with extensive experience relating to bills of costs. The investigation into the propriety of the fees charged by the accused was entrusted to her. As a starting point in the investigation she made copies of the documents in the court files pertaining to the six plaintiffs who had instituted action against the Ministers of Defence and Safety and Security.

[14] The files yielded precious little. It contained the summons, a plea, a notice of discovery and a notice of withdrawal. Save for the difference in the name of the plaintiff the pleadings and notices were virtually identical. Close examination of the 15 statements of account caused her much consternation for not only were the fees levied exorbitant but it appeared to be duplicated. A letter was then addressed to the accused advising him of the SIU’s investigation into the propriety of the statements of account and concluded by requesting him either to repay the money or to set the statements of account down for taxation. He was further advised that non compliance would result in a summons being issued against him for recovery of the money paid to him. There was some dispute whether the letter was preceded by a telephone call to the accused and who the author of the letter was but nothing really turns on this. The fact is that the accused, in response to the letter, visited the SIU’s office in Mthatha.

[15] Pretorius gave the accused her analysis of the various statements of account and outlined the problems which she had with them. As an example of this analysis she referred to exhibit L (the Patakubi matter) but reiterated that she handed him an analysis of each of the 6 matters to which I have earlier referred. Her analysis was thorough. She approached the matter on the premiss that the fees levied should have been done according to the tariff of fees laid down in Rule 70 and inserted these amounts in the appropriate column in her analysis. She pointed out that the fees had been duplicated and invited the accused’s responses. She recounted that his initial and immediate response was that the statements of account be taxed by the Law Society.

[16] Accepting for the moment that the accused in fact sent the statements to the Law Society, it is not surprising that the latter were, understandably, disinterested and communicated its attitude to him. The accused informed Pretorius accordingly and the statements of account were then set down for taxation before the registrar of the High Court, Mthatha by notice dated 16 April 2002 (Exhibit M). The envisaged taxation could however according to her not proceed owing to the absence of the taxing master. It was put to her that her evidence was incorrect; that the taxing master was indeed present and that the reason for the taxation not proceeding was because the taxing master required itemised statements of account. This aspect will be revisited in due course. Although Pretorius conceded under cross-examination that the accused may not have been present on that day, her recollection was that he was indeed present.

[17] Pretorius’s evidence that the accused at no stage denied being the drafter of the statements of account remained steadfast. It was repeatedly put to her that the accused denied advising her that he drafted the statements of account but the import of her evidence was consistently to the effect that he in fact drafted them. Pretorius’s evidence that the accused was present at the abortive taxation on 28 June 2002 finds support in the most unlikely source. I have previously referred to Pretorius’ evidence that the absence of the taxing master necessitated a postponement of the taxation. That evidence was placed in dispute. It was put to her that the taxing master’s insistence that an itemized bill of costs be prepared necessitated the postponement of the taxation. This Pretorius vehemently disputed. She maintained that the itemised account in the Tyiso matter (exhibit G), together with the itemised statement in the Maqubela matter (exhibit H) and the itemised account in Makaza (exhibit J) had been handed to her prior to the abortive taxation. This was strenuously disputed. Counsel’s attention was then drawn to the fact that exhibit G was dated 25 June 2002, exhibit H was dated 28 June 2002 and exhibit J 25 June 2002..

[18] Thus, Pretorius’ evidence that the accused was indeed present on 28 June 2002 is, inadvertently confirmed by the accused himself. Although Mr Zilwa sought to retract what had earlier been put to Pretorius, it is clear that what was put was done on the instructions of the accused. It was only after counsel was alerted to the date reflected on exhibits G, H and J that what was put to Pretorius was sought to be retracted. What this shows is that Pretorius’s recollection of events is reliable and that the taxation could not proceed for the reasons stated by her.

[19] Pretorius sought a new date for taxation and a notice of taxation (exhibit N) issued to the effect that the taxation would occur on the 20 January 2003. Much was sought to be made of the somewhat lengthy delay of approximately 6 months. Again nothing turns on this. Pretorius satisfactorily explained that she was involved in a plethora of taxations. She testified that the taxation was attended by the accused and aborted after several hours because of time constraints. Her evidence hereanent once more evoked cross-examination in an endeavour to show that she was neither a credible nor reliable witness. The exercise proved futile. What emerges from her evidence is that a combination of factors led to the taxation once more being postponed and set in motion a whole new chain of events.

[20] Pretorius testified that en route from the taxing master’s office the accused acknowledged to her that he had erred in drafting the statements of account and offered to repay the entire amount paid to the SIU. It was put to her that the accused merely acknowledged that an error in the preparation of the statements of account had been made by his office, and, to achieve finality, the statements of account should be drawn by a competent person and the name of a bills of costs consultant, a Mr Human was then suggested by her. Pretorius, whilst conceding recommending Human, reiterated that the accused continuously referred to the fact that he had erred in the preparation of the statements of account. Her evidence in this regard not surprisingly invoked searching cross-examination. Pretorius however remained steadfast and her evidence has a ring of truth around it for as she stated:-

“. . . Mr Mtshabe never at any stage indicated that he did not draft these accounts. On the day that Mr Mtshabe and I, when he said it was an error, and he wanted to pay the money back. One of the things he did say was at the time these matters were drafted, he was not long admitted as an attorney and mistakes like this could happen. He said when we discussed it, as he asked if he could pay the money back. He said he would realize that at the stage when he drafted these accounts, he was not long in practice, and it could be that he didn’t realize how the tariff worked.”

[21] Following the discussion with Pretorius, the SIU received a letter (exhibit P) from the accused a few days later. It reads as follows, warts and all:-

“The Head of the Office

Special Investigating Unit

PRD Building

Sutherland Street

Dear Sir / Madam

Re: N.Z MTSHABE INC vs VARIOUS MATTERS

The above matter refers.

We attended Taxation of these matters on the 20th and 21st January 2003 in the office of the Registrar, High Court, Umtata and taxation could not be finalized due to time constraints and more so that the Taxing Master wanted to go and research the issue of his Locus Standi on matters of this nature.

During the process of taxation various cases (Case law) was produced by both parties to convince the taxing master and this cause tremendous delay as one party wanted strict adherence to tariff whilst the other wanted fairness and reasonableness and that the taxing master must be discretional in dealing with the matters.

The above process is likely to take a little longer and our office has realized that there were erroneous payments made by the Department of Justice in particular the office of the State Attorney in Umtata and that our office received such payments without realizing such error. This error was caused by the fact that the Office of the State Attorney issued several distinct letters of appointments and did not consolidate the matter (which consolidation was later done after the 31st of July 1998) and by this date payments had already been erroneously made as aforesaid.

Realizing that no one should capitalize on the weakness of the other and when an error has been detected one should acknowledge and rectify that, our office takes the responsible position and accepts that such errors were indeed done under the circumstances outlined above.

Accordingly we hereby offer to pay back in full and final settlement all the monies that were unduly and erroneously paid to us or any reasonably negotiated figure. If the offer is acceptable, considering that about R50 000.00 has already been paid back by our office, we shall make suitable arrangements with you with regard to such payment. We are prepared to have such arrangement reduced into a legally binding acknowledgement of debt by our office or by Mr Mtshabe in his personal capacity.

We sincerely hope that this reasonable offer, which is made in all good faith in a genuine effort to resolve this matter, will be acceptable to you and we can have this matter finally resolved with the least delay.

Yours truly,

N.Z MTSHABE INC”

It will be gleaned from the aforegoing that the error, which the accused as author of the letter acknowledges, is circumscribed. There is no suggestion in the letter that some other person prepared the statements of account.

[22] The upshot of the letter was the signing of an acknowledgment of debt (exhibit O) by the accused on 3 February 2003. It reads as follows:-

“ACKNOWLEDGEMENT

OF DEBT

I, the undersigned, Ntsikane Z Mtshabe , identity number: 5904185157 086 an adult male, married do hereby acknowledge that:

a) During 1998 and 1997 I did work on behalf of the State Attorney Umtata.

b) I submitted accounts and was paid for work done in the following matters:

MINISTER OF DEFENCE / N.A PATAKUBI NT 542/96

MINISTER OF DEFENCE / L MAKAZA NT 607/96

MINISTER OF DEFENCE / V TYISO NT 617/96

MINISTER OF DEFENCE / G MAQUBELA NT609/96

PUBLIC WORKS / SIRENGQE NM 876/96

PUBLIC WORKS / MENTIS NM 957/98

EDUCATION / ILLEGAL OCCUPIERS NM 302/98

MINISTER OF DEFENCE /J MBALI NT 610/96

MINISTER OF DEFENCE / MATOMANE S NT 608/96

MINISTER OF POLICE / MBALENI VF NM 50/97

The accounts submitted were wrongly drafted and not in accordance with the tariff of the High Court.

The accounts submitted for payment were exorbitant and I was enriched in the amount of R750 441.50 (SEVEN HUNDRED AND FIFTY

THOUSAND FOUR HUNDRED AND FOURTY ONE RAND AND FIFTY CENTS).

I am hereby offering to pay back the amount of R750 441.50 (SEVEN HUNDRED AND

FIFTY THOUSAND FOUR HUNDRED AND FOURTY ONE RAND AND FIFTY CENTS).

I agree to withdraw the accounts submitted for payment and to draft proper bills of costs for work done in the abovementioned matters. The said bills of costs will be properly taxed and submit for payment.

In the event of the afore-mentioned amount not being paid in full at the time of the finalization of the taxations, the amount owing in accordance with the taxed bills of costs will be offset against the amount still owing in terms in terms of this acknowledgement of debt.

I promise and agree to pay the said amount to the Special Investigating Unit on account of the State Attorney as follows:

An initial payment of R80 000.00 and an additional N/A payment of R5000.00 each, the first payment to commence on the 1st day of March 2003 and thereafter on the first day of each and every month.

I agree to pay the said amounts at the office of the Special Investigating Unit, 13th Floor PRD Building, Sutherland Street, Umtata on the first day of every month commencing on the 1st day of March 2003, until the outstanding amount is fully settled.

Should any payment not be made on due date then the full amount outstanding shall become due and payable immediately.

Agree that in the event of my failure to carry out the terms of this offer the Special Investigating Unit shall without notice to me be entitled to apply for Judgment for the amount of the outstanding balance of the said debt with costs and for an order for payment of the Judgment Debt and costs in installments or otherwise in accordance with this offer.

Agree to pay the costs of drawing this document and the stamp duty thereon.

Should I fail as aforesaid for whatever reason then the Department is hereby authorized to levy execution against my assets without first obtaining a court order to do so in terms of the rules of the Supreme Court applicable to the execution of a judgment debt.

In the event of my committing a breach of any provision of this acknowledgement of debt, at the option of the creditor the said capital sum and any other sum whatsoever arising by me to the creditor in terms of this acknowledgement of debt shall be considered as legally claimable and due, without notice and it is expressly understood that the waiver of the provisions of any of the terms of this acknowledgment of debt by the creditor at any time previously, shall not under any circumstances prejudice the creditor’s right, without any previous legal demand to avail himself to the provisions of this paragraph.

The benefits from the legal exceptions non numeratae, non causa debiti and errore caculi with the meaning and effect of which I declare myself to be fully acquainted with, are hereby renounced.

I choose domicilium citandi et executandi at:

No 45 Leeds Road

Flat No 1, Glen Coombe Flats\

I agree and consent that the terms of this acknowledgement of debt be made an order of the Special Investigating Unit.

_______

Director”

[23] Hechter confirmed that pursuant to the terms of the agreement, the accused repaid an amount of R215 000.00 to the SIU. There is some dispute whether R235 000.00 or R240 000.00 was repaid by the accused. Nothing however turns on this, so too the reasons why the accused reneged on the undertaking embodied in the acknowledgement of debt. There is admittedly some discrepancy in the evidence of the various witnesses whether the relevant files were handed to the accused or not. Hechter’s evidence that the files were in fact handed to the accused was put to Pretorius with the sole purpose of discrediting her. Pretorius took issue with Hechter’s evidence thereanent and emphatically denied that the SIU ever had the accused’s files in their possession. The cross-examination served merely to enhance Pretorius’s credibility.

[24] The accused’s defence to the charges which the State sought to prove by the adduction of evidence both viva voce and documentary through the witnesses hereinbefore mentioned, broadly stated amounts to a denial that he drafted the statements of accounts (exhibits F1 – F15) which, as I have stated, constitute the foundation of the State’s case against him. His narrative of the events amount to the following. After being admitted as an attorney, he commenced practice for his own account during 1996 and sometime thereafter employed a certain Mr Maqolo as a professional assistant. Sometime during 1997 he employed Ms Majokweni as a candidate attorney who was tasked with attending to the High Court matters, bills of costs and taxation. In addition to cases which he handled on behalf of individual clients he also received instructions from the Mthatha State Attorneys office to act on their behalf in various matters including the six matters in issue. As far as his charges were concerned he made no differentiation in his fee structure stating “I will just charge as I please”. At no stage was he ever advised by the State attorneys office that charges should be levied in accordance with the tariff of fees prescribed by Rule 70 of the Uniform Rule of Court. The accused explained the procedure he employed before a bill of cost or statement of account was drawn as follows:

“If a bill has to be drawn. Let me just explain this way. In a file outside an attorney drafts what has done, and this is what I would do. I would draft what I have done outside the file. Then after I have drafted outside the file, I present the file to her. She then draw the statement that is exactly what she would do.”

[25] The accused maintained that whatever was written on the outside cover of the file, in casu, the exposition of the work done on the various dates as set forth in exhibits F1 – F7 and F8 – F15, he had duly performed the work and never claimed for work not done. When Pretorius confronted him in regard to the propriety of the various statements of account he immediately conceded that there had been a genuine mistake in submitting the Maqubela statement of account (F5 and F7) twice and repaid the money at once. In regard to the remaining statements of account, the accused remained resolute, notwithstanding having been furnished with Pretorius’s analysis of the statements of account. His evidence reads:

“No what actually happened was that there was a proposal that I should pay back the money, and then I said then said, ‘no I can’t pay you back the money, lets take the files to a neutral person for taxation. So that it can be known how much I owed you, how much you owe me. Then in that profess of referring the files, you would then the taxing master would then see how much is due, how much is not due. That’s how it actually. Because we had a problem that i, Marelize and myself did speak about this. That she wanted that there must be strict adherence to the tariff. That if you are to claim R10, 00 you can’t go. I actually said, ‘no lets take it to somebody else, you have got another agenda than I have.’ Then now then we said, ‘no lets take them to taxation.’ But before that I said to her, ‘this matter must be referred to the Law Society.’ Because there was nothing I was hiding. Then I then spoke to the people in the Law Society. She had no problems even with that suggestion. Then I said Law society they will deal with these matters. The Law Society said can’t they be taxed? I said, ‘no to me I don’t know whether of they are litigious or non-litigious matter, because there were summons that had been issued’, then they said, ‘no refer them to taxing master.’ Then that is how they issue now turning to that these matters must be referred for taxation.”

[26] Save for admitting the date for taxation of the statements of account, the accused denied being present at the abortive taxation on 28 June 2002 and maintained that Ms Majokweni, as the drafter of the statements of account, was the person who had to attend the taxation to “go and defend the decision”. The taxation could however not proceed because on her return from the taxing master Ms Majokweni reported to him that the taxing master required an itemized statement of account and she then proceeded to draft the itemized statements of account exhibits G, H and J.

[27] During August 2002, Majokweni resigned from her employment and the accused then had “. . . no choice. I had to be in the picture.” Thus on 20 January 2003, after much parrying between Pretorius, the taxing master and himself on a host of issues including the certificate appended to each statement of account, he and Pretorius left the taxing master’s office. What happened next is described by him as follows:

“Immediately from there, the first day pulled a strain on me, it also pulled a strain on Marelize, the second day pulled a worse strain on me and also Marelize. I immediately from after we left there, and I said to her, ‘listen Marelize, this thing will never be taxed, because this man will not have locus standi to tax this matter.’ I said to her, ‘I have realized that the office made a mistake, there are monies that I am supposed to pay you back, I will refund those monies.’ We actually went to her car. She had a navy Golf at the time. We went to her car, and in her car, she then spoke about this and I said to her, ‘This is what you do’, not only about what before court now. ‘Go back to your office; look at every file I was given by the State attorney. I am putting it everyone on doubt. I don’t want to talk about it anymore. Every file. I will then accept the responsibility on behalf of my office in respect of every file that I was given, on any date even beyond 1998. But as long as it is up to the time we are talking. She then . . . we then agreed to drive back to my office. When we were in, my office, outside my office now. We then stayed there together in her car as well. She then said to me, ‘you know who can do this thing for you, we are going to ask Mr Human. We once used him in the case of Nontenja he is very good.’ Whatever he agrees we will then be liable for that, and we will then be liable for that. His word will be final. No one else will deal with this matter. Then we then said that is all.”

The evidence that the taxation took two days was disputed by Pretorius.

[28] Arising herefrom Pretorius drafted the acknowledgement of debt (exhibit O), forwarded it to him to insert the monthly repayment amounts which he duly completed and returned the acknowledgement of debt to her. Although the document reflects that he make an initial payment of R80 000.00 and monthly payments of R5 000.00 thereafter, he had at the outset, when he realized “that my office made an error when they actually billed them, for issues that were not supposed to be paid for, those travellings” repaid the amount of R80 000.00. At the stage that he stopped repayments because of the SIU’s intransigence in forwarding the files to him he had already repaid some R240 000.00. He concluded his evidence by not only disputing Inspector’s Qundu’s evidence that he seized the files as reflected on annexure A to exhibit S (the search warrant) but moreover that Qundu was present at the search itself.

[29] In considering the evidence of the accused it is convenient to commence with an examination of certain aspects of the statements of account. Exhibits F1 – F15 and G, H and J. Each commences on a letterhead of the accused’s firm. On the front of the page is inscribed the particulars of the firm, including the qualifications of its director, (the accused) and the professional assistant, Anele Maqolo. These statements cover the period 3 March 1998 to 10 June 1998 and as I have earlier recounted, relate to the work allegedly done during the preliminary stage. These statements of account conclude with the name of the accused’s firm and save for F3, 4, 8, 9, 12, 13, 14 and 15 a signature which, on the accused’s own admission, bear a remarkable similarity to his own signature. During the course of his cross-examination he sought to distinguish the signatures on F1, 2, 5, 6, 7, 10 and 11 from that of his own by referring to some alleged dissimilarities between them and in fact challenged counsel for the State to present the evidence of a handwriting expert to prove that those signatures were indeed his. He steadfastly maintained that his office personnel habitually forged his signature on his letters and other documents, a practice which continues to the present day. His evidence hereanent is not only nonsensical but improbable in the extreme. It fails to provide any acceptable explanation, why, if indeed such a practice prevailed, F3, 4, 8, 9, 12, 13, 14 and 15 should not have been similarly forged. Each of these exhibits is signed per procurationem the accused’s firm by one of his personnel.

[30] There are a number of other factors which compel the conclusion that the accused’s evidence is patently untrue. The entire edifice of the accused’s case is that the villain was Ms Majokweni. According to the accused the first time he properly examined the statements of account was at the taxation on 20 January 2003. The reasons advanced by him for not looking at them prior thereto is again nonsensical. He had at the outset been informed by Pretorius that the fees which he had levied were not only exorbitant but duplicated in several instances. He had been threatened with legal proceedings for recovery of the money paid to him. In such circumstances it is inconceivable that any person, let alone an attorney, would not immediately have looked at the statements which, on his version, had been drafted by his candidate attorney. He admitted that Pretorius’s analysis of each of the six matters had been handed to him and must have known that her analysis presaged the letter to him. His evidence that he never looked at the analysis is blatantly untrue. So too is his evidence that he sent the statements of account to the Law Society. It would have been foolhardy in the extreme to have done so because its content reveals prima facie evidence of overreaching and duplicity of charges.

[31] The circumstances under which Ms Majokweni came to draft the statements of account are likewise riddled with improbabilities. Unashamedly, and with no insight into the absurdity of his evidence, he suggested that Ms Majokweni utilized the information on the individual file covers to draft F1 – F7, G, H and J. A cursory examination of F1 - 7 relating to the work allegedly performed on the various dates reflected thereon reveals the absurdity, for example - on his own admission there was only one consultation with the ‘client’ on 6 February 1998 and one telephone call to the police and defence force on 9 February 1998; etcetera. It is inconceivable that he would have entered such details on each of the six files that he opened on having received instructions from the State attorney. To add to the absurdity is his evidence that Ms Majokweni, of her own volition, computed the fees. How and on what basis she did this, defies imagination. When regard is had however to the detailed statements of account, G, H and J the full extent of the accused’s untruthfulness and deception is glaring.

[32] The accused stated that the taxation could not proceed on the 28th June 2002 because the taxing master insisted on an itemized bill. Pretorius’s evidence that the absence of the taxing master necessitated the postponement was challenged and disputed on that basis. When Mr Zilwa’s attention was drawn to the fact that the date on exhibits G and J predated the taxation and the date on exhibit H bore the very date on which the taxation was scheduled to take place, he found himself in a quandary and sought to circumvent the issue. The accused however persisted with this version in his evidence. He testified that Ms Majokweni left the taxation and then went to draft the statements. Clearly, that did not happen as the dates confirm. Furthermore the question arises that even assuming that for some or other reason incorrect dates were inserted on exhibits G, H and J what was the source of the information exhibited on these itemized statements of account. It could clearly not have been the cover file for that information was, on the accused’s version, incorporated in exhibits F1 – F7. The only logical explanation is that the source of the information was the accused himself. Exhibits G, H and J in fact corroborate Pretorius’s evidence that the reason for the postponement of the taxation was in fact the absence of the taxing master and puts a lie to the accused’s evidence.

[33] During the accused’s cross-examination I had occasion to ask the accused to explain the methodology of Ms Majokweni’s fee computation. His reply was that she had carte blanche to charge whatever she desired. That answer corresponds to the accused’s earlier evidence that he charged what he wished and it was for the client to object. When regard is had to exhibits G, H and J the falsity of this aspect of the evidence becomes evident. Two examples will suffice. Items 3 and 4 on page 2 of exhibit H lists the work done as “attending on receipt of letter of instructions from client” and “perusing the same” respectively. The accused’s explanation why separate fees were charged amounts to this – the office staff would in the normal course open the letter. That would constitute the work done as per item 3 on exhibit G. Thereafter he would peruse the letter, hence item 4. Items 74 on exhibits G and H are identical. It refers to “airport traveling from East London to Durban and back” and the fees levied amount to R2 468.

00. No time period is stipulated. The fees levied are not rounded off but an exact amount.

[34] The absurdity of the accused’s evidence that Majokweni could charge what she wished is emphasized by his evidence that:-

“Accused: On issues relating to attorney and client, on issues relating to that. There is no money to put. There us precisely no money to put. The only money to put, which you can not then draw, are money that are disbursements, because there he is having the receipt to check to that, but on attorney and client, you put as you please. Then if the client is not happy with that the client complains.

Court: So if she had put on each of those bills a million rand?

Accused: She can put a million rand, if the person is happy with the million rand it will be paid. That’s what happened even today. That’s what happens.

Court: Are you serious Mr Mtshabe?

Accused: Sir I don’t know, I am actually hundred percent serious that on an attorney . . . [intervene]

Court: Are you telling me that you entrusted this person to put any amount she wanted to in these statements of account? ”

The accused’s blatant untruthfulness, highlighted in the aforementioned examples, permeate every aspect of his evidence. He was not only a shocking witness with no regard for the truth but moreover he was an extremely evasive witness, whose answers during cross-examination bore little relation to the questions asked.

[35] He was questioned about the authenticity of the signatures on exhibits F1, 2, 5, 6, 7 and 10 and this line of questioning spawned the following responses:-

“Mr Cilliers: I also come back to this point later. I just want to find out first. Reference was made by the witness that well your initial appears on some of the statements of accounts, and compared to, do you suspect that this initial was falsified:

Accused: Not falsified, it means only that they took that initial is quite easy for everyone in the office to me. Even as we speak they easily make it. All that they do is to make that initial as they please

Mr Cilliers:. Yes but Sir, if you didn’t do it, they will falsify it.

Accused: I wouldn’t put a blame on them.

Mr Cilliers: but am I wrong if I say if it was not you that signed the statement of accounts, these must have been falsified, because they look very similar to yours?

Accused: Of course lets look and do what is actually happening at the base. The secretary is there, I know that. Administrative staff put PP, but these legally trained people simply do the S that is supposed to be NZ, they simply do it even today. Because there at the base of that thing it said NZ Mtshabe Incorporated. It doesn’t really refer to me directly, it refers to the office. If it would then be said NZ Mtshabe as a person, it would then be NZ Mtshabe. If you look into those things that’s what they do.

Court: Sir, Sorry can I just interrupt you? Can I get some clarity on this? On those statements that are before me as exhibits “F1” to “F15”, where a signature of yours appears it wasn’t yours?

Accused: A signature like mine appears it wasn’t mine.

Court: But the way you sign is very similar to that?

Accused: Very, very similar to that, but because everybody knows it they can do it by heart.

Court: You say someone in your office did that?

Accused: Someone in my office did that. But I would imagine it was Ms Majokweni, because that is the one person who was actually doing the statements in respect of this matter.

Court: So she would have forged your signature on the statements of account?

Accused: I wouldn’t say forgery as that word would contain a criminal aspect to it. I wouldn’t say she actually forged the signature.

Court: She reproduced your signature?

Accused: She actually did.”

[36] This rather incomprehensible response was no doubt occasioned because the accused knew full well that he had in fact signed the aforementioned statements of account and his linguistic gymnastics underscore the fact that the accused concocted the entire story concerning Ms Majokweni. If in fact she drafted the statements of account there is no reason why the administrative staff would have signed exhibits F3, 4, 8, 9, 12, 13 and 14. The accused conceded that the itemised statements of account, exhibits G, H and J were signed by her and had great difficulty in giving a clear answer why the other exhibits should not likewise have been signed by her. Moreover the question arises why did Majokweni not forge his signature on F3, 4, 8, 9, 12, 13 and 14 in the same way she allegedly did on F1, 2, 5, 6, 7 and 10.

[36] It is precisely because of the falsity of that evidence that the accused exhibited a spell of amnesia in relation to Ms Majokweni’s status. At an early stage of his examination of chief he was quite clear that she was a candidate attorney and he, the only director of the firm. During questioning by me, the firm suddenly had two partners and he was now unsure whether she was his articled clerk. The most telling example of his untruthfulness relates to those instances where counsel’s fees are listed on the statements of account. During cross-examination of the state witnesses it was pertinently put to them that where the statements of account listed a fee charged by counsel, counsel in fact charged such fee in each instance. I questioned the accused hereanent and referred him to exhibits F8, 12 and 14 asking whether “counsel charged for the same consultations three times, in the other two matters as well, or is that not a duplication as well?” His response was “My Lord I can say counsel charged three times.” That answer corresponded to what had been put to the state witnesses. When I asked the accused to consider the question carefully he did a complete volte face, saying:-

“Accused: My Lord what a pity. What a pity I am not sure my Lord, but let me think carefully. But advocate Alkema did advise that these files must be consolidated into one so that they are not charged per brief, per file.

Court: Hold on I am asking about the globular figure of R20 659.

60. Because I would be very surprised if Counsel for the same consultation charges three times.

Accused: Let me put it this way my Lord. The pleas were separate.

Court: No leave the pleas aside. You have already said to me that that fee relates to the consultations over that period 24 April, to 26 April in Durban.

Accused: My Lord I must be honest I can’t remember, but I know for a fact that I can’t remember only in respect of whether in respect of Advocate Pakade, but I am definite in respect Advocate Alkema he charged three times. He charged per file. Advocate Pakade I must be honest as far as he is concerned, I cannot remember whether in him it is a duplication. But I am sure in respect of Advocate Alkema it’s a duplication.

Court: So it seems to me that as far as Advocate Pakade and you then were, that his fees must have been a duplication? It’s the exact fee up to the cent, 60 cents?

Accused: Yes even with Advocate Alkema it’s exact fee. But what I am saying my Lord is I would say that in respect of Advocate Alkema it’s definitely I know, but I am not sure in respect of whether the lady actually made a mistake in respect of Advocate Pakade.

Court: Pakade?

Accused: I must voice that.”

[37] In addition to the aforegoing there is the clear evidence of Pretorius that the accused admitted drafting the statements. I have hitherto adverted to various unsatisfactory features in the accused’s evidence and am satisfied that its poor quality demonstrates quite unequivocally that his evidence is a complete and utter fabrication. He is a patently dishonest witness and I reject his evidence in its entirety. I am satisfied that he drafted each of the statements of account.

[38] I have earlier in this judgment referred to Mnyamana role in issuing the certificates appended to each statement of account. Matiwane’s evidence which I accept was clear. Private practitioners engaged to perform work on behalf of the Mthatha State attorney were obliged to levy charges according to the tariff of fees laid down in Rule 70. No deviations were permitted. A cursory glance at any of these statements would have alerted Mnyamana to the fact that the fees charged were not only grossly excessive but in certain instances duplicated. The issuing of the certificates in such circumstances therefore compels the inference that there was a corrupt relationship between the accused and Mnyamana. That inference is strengthened regard being had to the evidence of Hechter that Mnyamana was charged with fraud in circumstances not dissimilar to the present in matters where another private practitioner was engaged to perform work on behalf of the State attorney.

[39] It is not in dispute that when exhibits F1 – F15 were presented to the registrar of the High Court, Mthatha for payment during the period 3 March 1998 to 10 June 1998, each was accompanied by a certificate signed by Mnyamana in the terms described in hereinbefore. Exhibits F1 – F7 expressly conveyed that on the dates specified, the work stipulated had in fact been performed in each instance. The certificates appended to each statement of account served not only to confirm the correctness of the statements but attested to its authenticity. It induced the registrar to issue payment vouchers in settlement of the accused’s claims.

[40] One of the essential elements constituting the crime of fraud is the making of a misrepresentation. It is a perversion or distortion of the truth and may be made by words or conduct. In order to constitute the misrepresentation, the words or writing must constitute a statement which is false. Exhibits F1 – F15 undoubtedly fall into that category. As previously stated, exhibits F1 – F7 expressly conveyed that on the specified dates the work stipulated had in fact been done. It was in fact admitted by the accused that on 6 February 1998 he had one consultation with the State attorney; he telephoned the police and Defence Force once, and consulted with the police on one occasion. The same activity is duplicated on each of the exhibits F1 – F7. Exhibits F5 and F7 refer to the same plaintiff and bear the same reference number. It was suggested to the relevant state witnesses that this was an innocent duplication in that it was obvious from an examination of the two statements that exhibit F5 had been mislaid and that the accused was then requested to provide the State attorneys office with a duplicate statement of account. Mr Zilwa pointed to the word “copy” on exhibit F7 and elicited a concession from Pretorius that the scenario sketched by him in all probability occurred. It was further suggested that the accused’s conduct in immediately repaying the duplicated

payment served to corroborate his version that a genuine mistake had been made. This is a speculative hypothesis not supported by the evidence. Whilst it is undoubtedly correct that the accused repaid the duplicated amount, it is clear that he had no option. The duplication was obvious. The word copy on F7 does not lend itself to the explanation proffered by the accused. Exhibit F6 bears the exact word. I have already pointed out that Matiwane appended his signature to F5 whilst F7 bear the signature of Mnyamana. Although both F5 and F7 bears the same date viz 24 March 1998, the instruction to pay by Mnyamana is dated 6 April 1998 whilst the date 20 April 1998 appears on F5. Given the corrupt relationship between Mnyamana and the accused, there can be no suggestion that the duplication was inadvertent and innocent.

[41] I have pointed to the fact that F8 – F15 contain no reference to any date in relation next to the work actually performed. The omission of the date is not without significance and it is no wonder that these statements were authorized for payment by Mnyamana on divers dates, and, as admitted by the accused in terms of s220, presented for payment and paid over a period of time. The absence of a date would therefore dispel any notion that the statements were duplicated and any person perusing the individual statements would conclude not only that the work described thereon had been performed but that disbursements had in each instance been paid and separate trips undertaken. The pattern that emerges from the evidence and the various exhibits is that the deception was conscious and deliberate. The statements of account drafted by the accused are clearly false and amounted to a misrepresentation. In presenting the statements of account (with the collusion of Mnyamana) to the registrar’s office for payment the accused clearly had the intention to defraud the fiscus which suffered prejudice.

[42] It was submitted on behalf of the accused that his evidence was reasonably possibly true and ought to be accepted. I have in the course of this judgment, in my evaluation of the evidence adduced pointed to innumerable instances where the accused was deliberately untruthful and his evidence so improbable that it warranted rejection. The further submission was however made in paragraph 8 of Mr Zilwa’s heads of argument, and to avoid any confusion, I quote it verbatim. It reads as follows:-

“It is respectfully submitted that since the Section 220 admissions that were handed in as Exhibit “A” were handed in by consent, both the State and the defence are bound by its contents and none of them may lead any evidence or make any submissions that are contrary to its contents. Indeed in casu the State never adduced any evidence that went contrary to any of the contents of Exhibits “A”. In the premises it is respectfully submitted that on any aspect covered in Exhibit “A” the Court should decide the case on the basis of such admissions and treat the contents thereof as evidence which is common cause.”

[43] The submission is, to say the least, a startling one and it is not surprising that no authority was cited in support thereof. There is none. Where an accused pleads not guilty, it is possible for the accused to reduce the issues put in dispute by his or her plea by making a formal admission in terms of s 220 of the Criminal Procedure Act. The state is thereby relieved from adducing evidence which is not in dispute thus shortening the duration of the trial. The mere fact that the state raises no objection to the accused making admissions in terms of s 220 does not bind the state. The fact that there may have been some discussion between counsel for the state and Mr Zilwa prior to the latter handing in the s 220 admission does not make the state party to the admissions made and signed by the accused. Those admissions were signed by the accused and are his and not that of the state.

[44] I have in the course of this judgment referred to the evidence of the witnesses who testified on behalf of the state. They all impressed me as honest witnesses and I have no reason to doubt their veracity and accept their evidence as credible and reliable. In conclusion therefor I am satisfied that the state has discharged the onus resting upon it and, in the result the accused is found guilty on the main count of fraud.

____

D.

CHETTY

JUDGE

OF THE HIGH COURT

Obo the State: Adv Cilliers

Obo the Defence: Adv Zilwa