IN
THE HIGH
COURT
OF SOUTH
AFRICA
,
FREE STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest
to
other
Judges:
NO
Circulate
to
Magistrates:
NO
Case No:
08/2022
In
the matter
of
:
THE
STATE
And
MBANA
PETER THABETHE
LIMAKATSO MOOROSI
SEIPATI SILVIA DHLAMINI
IQBAL MEER SHARMA
NULANE INVESTMENTS 204 (PTY)
LTD
(
as
rep·resented by Accused 4)
DINESH
PATEL
ISLANDSITE INVESTMENTS ONE HUNDRED AND EIGHTY
(PTY)
LTD
(
as
represented
by
Accused
8)
RONICA RAGAVAN
Accused 1
Accused
2
Accused 3
Accused 4
Accused 5
Accused 6
Accused 7
Accused 8
1
2
CORAM:
MBHELE, DJP
HEARD ON:
27 SEPTEMBER 2022
DELIVERED ON:
03 NOVEMBER 2022
[1]
This
is
an
interlocutory application in a criminal matter where accused 6, 7
and
8 (the accused) are seeking an order
compelling
the State to provide them
with further and better particulars. An indictment of about
61
pages
in
terms of
which the accused are charged
of
contravention of Public Finance Management
Act, fraud and Money Laundering was served
on
all the accused.
Below
is
an
extract from the indictment detailing the charges that the accused are facing:
'COUNT 1 (IN RELATION
TO
ACCUSED 1 AND 2 ONLY)
THAT THE ACCUSED ARE GUILTY OF CONTRAVENTION OF SECTION 86(1)
OF
THE
PUBLIC FINANCE MANAGEMENT ACT, ACT 1 OF 1999, READ WITH SECTIONS
1,
36,
38,
39, 44(2) and 76(4)(c)
OF
THE PUBLIC FINANCE MANAGEMENT ACT 1 OF 1999 AND
FURTHER READ WITH SECTION 217(1) OF THE CONSTITUTION.
1.
In
that
during
the
period
between
October 2011
and
April
2012
and
at
or near
Bloemfontein in the regional division
of
Free State, Accused
1,
being
the
Head
of
the
Free State Department
of
Rural Development and its Accounting Officer, and Accused
2,
as the Head
of
the Free State Department
of
Agriculture and its Accounting Officer,
did unlawfully and wilfully, alternatively,
in
a grossly negligent manner, contravene the
provisions
of
Section
86(1)
of
the said
Act
by
failing
to comply with the following
provisions
of
the Act;
2.
To
ensure the effective, efficient, economical and transparent use
of
the resources
of
the Department
(38(1 )(b));
and
or
3.
Take effective and appropriate steps to prevent unauthorised, irregular and/or fn,iitless
and wasteful expenditure and losses resulting from criminal conduct
(38(1)(c)(ii));
and
or
3
4.
The duty
to
comply, and to ensure compliance by the Department, with the provisions
of the PFMA
(38(1
)(n)
);
and
or
5.
The duty not to commit the department to any liability for which money has not been
appropriated
(38(2)).
6.
Accused 1 and 2 contravened the provisions of the PFMA as aforesaid
in
that they
committed the Department
tq
a contract
in
the amount
of
R 24 984 240, 00 (twenty-
four million nine hundred and eighty-four thousand, two hundred and forty rand) with
Accused
5,
for the provision
of
services for Project Mohoma Mobung without complying
with the Department's own prescribed procurement processes.
7.
Accused 1 and 2 (and their subordinates, Accused 3 and Shadrack Cezula), wilfully
disregarded the PFMA provisions, as well as the Department's SCM Policies,
in
order
tog
satisfy the "request"
of
the entity, Worlds Window lmpex India Pvt Ltd, contained
in
the aforesaid entity's letter to the Department, to the effect that the "due diligence
and planning exercise be conducted by
an
Agency of their choice to provide the
necessary level
of
comfort to their stakeholders".
8.
The Mohoma Mobung project was not budgeted for during the financial year,
2011/2012 and sundry payments were used to settle the invoices
of
the service
provider, Accused
5.
9.
The Mohoma Mobung project was not registered with and
or
approved by the Free
State Provincial Treasury as a Public Private Partnership during the 2011/2012
financial year.
COUNT 2 (IN RELATION TO ACCUSED 1, 2,
3,
4,
5,
6,
7 and 8 ONLY)
THAT THE ACCUSED ARE GUILTY OF THE CRIME OF FRAUD READ WITH SECTION 103
OF THE CRIMINAL PROCEDURE ACT
51
OF 1977 AND FURTHER READ WITH THE
PROVISIONS OF SECTION 51(2) OF THE CRIMNAL LAW AMMENDMENT ACT 105 OF
1997.
10.
In that during the period between 03 October
2011
and
19
April 2012, and at
or
near
Bloemfontein
in
the regional division
of
Free State, Accused
1,
2,
3,
4,
5,
6,
7 and 8
did
unlawfully, intentionally and falsely, collude and conspire with one another and or
others, with common purpose to defraud, misrepresent to the Free State Department
of
Agriculture and Rural Development and or its employees, that:
4
10.1
.
A letter dated 03 October 2011, bearing the details of an entity, World Window
lmpex India
Pvt.
Ltd and its Director, Anil Misra, was received from the said
entity or its Director
in
the ordinary course
of
business; and
or
10.2.
World lmpex India
Pvt.
Ltd
had genuine intentions to "participate as a Strategic
Partner
in
Project Mohoma Mobung" as set out
in
the aforesaid letter; and or
10.3.
The appointment
of
Accused 5 as a service provider made it impossible for the
Department to follow the normal procurement processes due to the fact that it
was a condition from the intended Strategic Partner (World lmpex India
Pvt.
Ltd) that for them to be able to have comfort and confidence
in
the due
diligence and feasibility study, they required the Department to use the
services of Accused
5
as they know the quality of work Accused
5
has
performed
in
similar projects around the world; and or
10.4.
The request, motivation and approval to deviate from the Department's normal
tender procedures as contained
in
the submission drafted
by
Shadrack Cezula,
dated
06
October
2011
, were valid, bona fide and
in
accordance with the
Department's Supply Chain Management Policy and Regulations; and or
10.5.
Accused
5,
was a reputable agency and
had
the capacity to conduct the said
due diligence process; and or
10.6.
The amount of R 24 984 240, 00 (twenty-four million nine hundred and eighty-
four thousand, two hundred and forty rand) charged by Accused
4,
5
and
6
for
the provision of services to the Department as aforesaid, was justified, not
inflated and
in
accordance with the acceptable government rates; and
or
10.7.
Payments made to Accused 5
in
terms of the contract concluded between
Accused
5
and the Department, were lawfully due to Accused
5.
11.
And the Accused
did
by means
of
the aforesaid misrepresentations, induce the
Department and or its employees to its actual prejudice
to:
11.1 .
Accept the information provided by the Accused as being true and correct; and
or
11
.2.
Enter into a contract with Accused 5
in
the amount
of
R 24 984 240, 00 (twenty-
four million nine hundred and eighty-four thousand, two hundred and forty
rand) for the provision
of
services for Project Mohoma Mobung; and or
5
11
.
3.
Pay to Accused 5 the amount
of
R 24 984 240, 00 (twenty-four million nine
hundred and
eighty-fo1,1r
thousand, two hundred and forty rand)
in
accordance
with the said contract; and
or
11.4.
Procure the services of Accused 5 in contravention of
the
Supply Chain
Management process
of
the Department and the PFMA, Constitution,
12.
Whereas the Accused, when they misrepresented
as
aforesaid, well knew that:
12.
1.
There was no record
in
the Department and
in
the relevant procurement file of
any
proof
of
the submission
of
the aforesaid letter by World Windows lmpex
India Pvt. Ltd and
or
proof
of
receipt by any official
of
the Department
of
such
letter; and
or
12.
2.
The Department did not publicly advertise a need for a service provider
tQ
provide a due diligence report and or undertake a study for the development
of
a Concept Document for Project Mohoma Mobung, thus, there
was
no basis
for the Department to "receive" World
lmpex
India Pvt. Ltd. 's proposal
as
per
the aforesaid letter
of
03 October 2011; and or
12.3.
The purported intentions, if any, by World lmpex India Pvt. Ltd to "participate
as
a Strategic Partner
in
Project Mohoma Mobung" as set out
in
the aforesaid
letter were not genuine and bona fide; and
or
12.4.
The
alleged insistence that World
Window
lmpex
India Pvt. Ltd would
participate
in
the said project subject to a proper due diligence process being
conducted by a reputable agency chosen by themselves, was the Accused's
way
of
bringing Accused
4,
5 and Accused
6,
to contract with the Department
without lawful procurement processes being followed by the Department
officials (Accused
1,
2,
3 and Shadrack Cezula); and or
12. 5.
Accused
1,
2,
3,
4,
5,
6,
7,
8 and Shad rack Cezula were aware that the
appointment
of
Accused 5 by the Department and the conclusion
of
the
contract to render services under the Mohoma Mobung Project were not
in
accordance with the laws
of
this country since Accused 5 was not appointed
through a properly advertised tender
and
the deviation process followed to
appoint Accused 5 was also not
in
accordance with the prescribed process for
a deviation; and
or
6
12
.
6.
Accused
1,
2,
3,
4,
5,
6,
7,
8 and Shadrack Cezula were aware that payments
made to Accused 5
in
terms
of
the contract concluded between Accused 5 and
the Department were not lawfully due to Accused
5;
and or
12.7
Accused 5 was not a reputable agency and did not have the capacity to
conduct the said due diligence process. Thus, Accused
5
immediately
outsourced the whole contract to Deloitte; and
or
12.
8.
The aforesaid contract amount was inflated and not
in
accordance with
acceptable government rates; and or
12.9.
The request, motivation and approval to deviate from the Department's normal
tender procedures as contained
in
the submission drafted by Shadrack Cezula,
dated 06 October 2011, was not
in
accordance with the Department's Supply
Chain Management Policy and Regulations. In actual fact, the request,
motivation and approval made by Accused
1,
2,
3 and Shadrack Cezula was
intentionally aimed at bypassing the PFMA, Section 217
of
the Constitution
and the Department's own Supply Chain Management Policy and Regulations;
and or
12
.
10.
The contents of paragraph 3
of
the 06 October 2011 submission prepared by
Shadrack Cezula were false
in
that the World Window lmpex India Pvt.
Ltd.
letter does not state that "they know the quality
of
work performed
by
Accused
5
in
similar projects around the world".
COUNT 3 (IN RELATION TO ACCUSED 4,
5,
7 AND 8 ONLY)
MONEY
LAUNDERING
-
THAT
THE
ACCUSED
ARE
GUILTY
OF
THE
CRIME
OF
CONTRAVENTION OF SECTION 4 READ WITH SECTIONS
1,
8 (1) OF ACT
121
OF
1998
AND FURTHER READ WITH SECTION 51(2)
OF
THE CRIMINAL LAW AMENDMENT ACT
105
OF
1997.
13.
In
that during the period between 08 November
2011
and 06 July 2012 and at or near
Bloemfontein
in
the regional division
of
the Free State and
or
at or near Johannesburg
in
the regional division of Gauteng, the Accused, unlawfully, colluded and conspired
with one another and with others, with a common purpose to launder the proceeds
of
unlawful activities, whilst they knew or ought reasonably to have known that certain
property to wit, money amounting to R19 070 934, 00 (nineteen million and seventy
thousand nine hundred and thirty four rand), which was derived by Accused 5 from the
Free State Department
of
Agriculture and Rural Development as a portion of a total
7
payment of
R24
984 240, 00 (twenty four million nine hundred and eighty four
thousand, two hundred and forty rand) which the said Department paid to Accused 5
in
terms of the contract between the Department and Accused 5 referred to
in
Counts
1 and 2, was proceeds
of
unlawful activities or that it formed part
of
the proceeds
of
unlawful activities relating to the offence of Contravening the Public Finance
Management Act 1
of
1999 and or Fraud, referred to
in
Count 1 and
2,
agreed and
arranged that;
14
.
The said property, to
wit,
the amount of R
19
070
934,
00
(nineteen million and seventy
thousand nine hundred and thirty-four rand),
be
transferred from Accused 5's Bank
of
aaroda Account number, 92020200000234, to the off-shore Standard Charter Bank
Account number 02206949201, of Gateway Limited, under the pretext that the said
property was payment by Accused 5 to Gateway Limited for services rendered
in
terms
of a contract concluded between them
on
2 December
2011
.
15.
And the said agreement
or
arrangement had the effect
of
concealing or disguising the
nature, source, location, disposition and/or movement
of
the said proceeds or the
ownership thereof or any interest which anyone may have
in
respect thereof
in
that the
said
property was combined with other money
in
the bank accounts
of
Accused 5,
Accused
7,
Wane Management, Pragat Investments, Confident Concepts (Pty)
Ltd,
Oakbay Investments (Pty) Ltd, Tegeta Resources (Pty) Ltd and Arctos Trading (Pty)
Ltd
and then transferred with bewildering rapidity between the said bank accounts and
ultimately transferred to the off-shore account of Gateway Limited as set out hereunder:
a.
On
or about 08 November
2011
:
151.1.1
151.1.2
151
.1.3
151.1.4
the Department made payment
in
the amount
of
R
12
492 120, 00 into
Accused 5's Nedbank Account with number 1003229697;
Accused
5
transferred
the
amount
of
R10 000 000,
00
to
Pragat
Investments' ABSA Bank Account with number 4071953539;
Pragat investments further transferred the amount
of
R9
800 000, 00 to
Accused
Ts
ASSA
Bank Account with number 4072171431;
Pragat investments further transferred the amount
of
R 123 000. 00 to
Pragat's Bank
of
Baroda account number 92020200000191 .
b.
On
or about
11
November 2011:
151
.
2.1
Accused 5 transferred the amount
of
R2
000 000, 00 from its aforesaid
Nedbank account to Pragat Investments' aforesaid ABSA account;
151
.2.2
Pragat Investments further transferred the amount
of
R2
000 000, 00 to
Accused
Ts
aforesaid ASSA account;
8
151.2.3
Accused 7 transferred the
R2,
000,
000.
00
on
the same day to Annex
Distribution (Pty) Ltd.
c.
On
22 December 2011, the Department made payment
in
the amount of
R4
164
040,
00
into Accused 5's aforesaid Ned bank account.
d.
On
05
January 2012:
151.4.1
Accused 7 transferred from its aforesaid ABSA account, the amount
of
R
4 000 000, 00 into Pragat Investments' aforesaid ABSA account;
151.4.2
Pragat Investment transferred the amount of R 4 000
000,
00
to
the
aforesaid Nedbank account
of
Accused
5;
e.
On
the following
day,
6 January 2012, Accused
5 transferred from
its aforesaid
Nedbank account the amount
of
R8
000 000, 00
to
Wane Management's Standard
Bank Account with number 221044620.
f.
On
10January2012:
151.6.1
Accused 7 transferred from its aforesaid ABSA account,
the
amount of
R3
000 000,
00
into Pragat Investments' aforesaid ABSA account;
151.6.2
Pragat Investments transferred the amount
of
R3
000
000,
00 to the
aforesaid Nedbank account of Accused
5.
g.
On
11
January 2012, Wane Management returned R 8 000 000, 00 from its aforesaid
Standard Bank account to the aforesaid Ned bank account
of
Accused 5
in
two tranches
of
R4
999
999,
00 and
R3
000 001, 00.
h.
On
12 January 2012:
151.8.1
R9
000 000,
00
was transferred from Accused
S's
aforesaid Nedbank
account to Pragat Investments;
151.8.2
R9
000 000,
00
was transferred from Pragat's aforesaid ABSA account to
Accused
Ts
aforesaid ABSA account;
151
.8.3
R 9 000 000,00 was transferred from accused 7's aforesaid ABSA account
to the ABSA acci;,unt
of
Confident Concepts (Pty) Ltd, account number
420934359;
151
.8.4
R9
000 000
was
transferred
from
the
aforesaid
ASSA
account
of
Confident Concepts to the ABSA account number 4052327765
of
Sahara
Computers (Pty) Ltd;
151.8.5
R9
000 000 was transferred from the aforesaid ABSA account
of
Sahara
Computers to
an
unknown State Bank of India account.
9
i.
On
25 January 2012:
151
.
9.1
R1
000 000 was transferred from Accused S's aforesaid
Ned
bank account
into the aforesaid ABSA account
of
Pragat;
151.9.2
R1000000
was transferred from Pragat Investments' aforesaid ASSA
account to Accused 7's aforesaid ABSA account;
151.9.3
R1160
000. 00 was transferred to Oakbay Investments (Pty) Ltd.;
151
.9.4
R1
000 000. 00 was transferred to TNA Media (Pty) Ltd.
j.
On
30 January 2012:
k.
150.1.1
R1
000 000 was transferred from Accused 7's aforesaid ABSA account
into Pragat Investments' aforesaid ASSA account;
150.1.2
R1
000 000 was transferred from Pragat Investments' aforesaid ABSA
account to Accused
S's
aforesaid Nedbank account;
150.1.3
Two payments
of
R500 000 were made to SARS with reference EPAY.
On
30 March 2012, the Department made payment
in
the amount of
00
into Accused
S's
aforesaid Nedbank account.
R 4 000 000,
I.
On
04 April 2012:
151
. 12.1 Accused 5 transferred the said amount to its Bank of Baroda Account
number, 92020200000234;
151.12.2 Accused 5 made a transfer
in
the amount
of
R 3 900 000, 00 from its Bank
of
Baroda account
to
the aforesaid ABSA account
of
Pragat Investments.
m.
On
05 April 2012, Pragat Investments transferred from its aforesaid ABSA account, the
amount
of
R 3 750 000, 00 into Accused 7's aforesaid ASSA account.
n.
On
1
O
April 2012, Pragat Investments transferred from its aforesaid ABSA account, the
amount
of
R123 000, 00 to its aforesaid Bank
of
Baroda Account.
o.
On
19 April 2012, the Department made payment
in
the amount
of
R4 328 080,
00
into
Accused
S's
aforesaid Nedbank account.
p.
On
04 May 2012, Accused 5 transferred the amount
of
R 1 500 000, 00 to its aforesaid
Bank
of
Baroda Account.
It also
made a payment to
Deloitte
in
the
amount
of
R1
538 457.
86
on
the same day.
q.
On
or
about 09 May 2012, Accused 5 made a transfer
in
the amount
of
R 1 400 000,
00
from
its
Bank
of
Baroda
account to
the
aforesaid
ABSA account
of
Pragat
Investments.
10
r.
On
10 May 2012, Pragat Investments transferred from its aforesaid ASSA account the
amount
of
R1
200 000, 00 to Accused 7's aforesaid ASSA account, whereupon the
following transfers were made
on
the same day on ASSA accounts
on
the Sahara
Computers Cash Focus facility:
151
.
18
.1 Accused
7
transferred
from
its
aforesaid
account
the
amount
of
R1
200 000, 00 into Oakbay Investments (Pty} Ltd's account with number
4072149587;
151.18.2 Oakbay Investments (Pty)
Ltd
transferred from its aforesaid account the
amount
of
R1
200 000,00 into the Tegeta Resources (Pty) Ltd account
with number 4072444486;
and
151.18.3 Tegeta Resources (Pty)
Ltd
transferred from its aforesaid account the
amount
of
R1
200 000,
00
to the Bank
of
Baroda for the account
of
Arctos
Trading (Pty} Ltd.
s.
On
15 May 2012, Arctos transferred from its aforesaid Bank
of
Baroda account the
amount
of
R1
281
837,
98
to the
Loan
Account
of
Arctos with the Bank of Baroda,
account number 92020600000250.
t.
On
02
July 2012,
151.20.1 Oakbay Investments (Pty}
Ltd
transferred from its aforesaid account the
amount
of
R7
000 000,00 into the aforesaid ASSA account of Accused
7.
151.20.2 Sahara
Computers
transferred
from
its
aforesaid
ASSA
account
R1
800 000 into the aforesaid ASSA account
of
Accused
7.
151.20.3 Accused 7 immediately transferred from its aforesaid ASSA account, the
amount
of
R 8 800
000,
00
into Pragat Investments' aforesaid ASSA
acc;;ount.
151.20.4 Pragat Investments immediately transferred
from
its
aforesaid
ASSA
account the amount of R 8 800
000,
00 into the aforesaid Bank
of
Baroda
account
of
Accused
5.
151.21
On
03
July 2012, Accused 5 transferred the amount of R 8 882 142.00 from its aforesaid
Bank
of
Baroda
acco1
,
mt
to the aforesaid off-shore Standard Chartered Bank Account
number 02206949201,
of
Gateway Limited.
11
151.22
On
06
July 2012,
151
.22.1
Accused 7 transferred from its aforesaid ASSA account, the amount of R
1
o
200 000, 00 into Pragat Investments' aforesaid ASSA account.
151.22.2
Pragat Investments immediately transferred
from
its
aforesaid
ASSA
account the amount of R 1
O
200 000, 00 into the aforesaid Bank of Baroda
account
of
Accused
5.
151.22.3
Accused 5 immediately transferred the amount
of
R10 188 792,
00
from
its aforesaid Bank
of
Baroda account to the aforesaid off-shore Standard
Charter Bank Account number 02206949201,
of
Gateway Limited.
151.23
The aforesaid bewildering array of transactions had no legitimate business purpose.
Instead, the transactions had the effect of obscuring the true nature of the funds as
criminal proceeds derived from the offences perpetrated
on
the Free State Department
of Agriculture and/or Rural Development, where the funds originated from.
151
.24
The aforesaid arrangements
or
agreement had the effect
of
enabling or assisting
Accused 1 and 2 who committed the offence
of
Contravening Section 86(1)
of
the
PFMA as set out
in
Count
1,
and Accused 1 to 8 who committed the offence of Fraud
as
set out
in
Count
2,
to avoid prosecution and or to enable
or
assist Accused
4,
5 and
Wone Management and its Directors, Pragat Investments and its Directors, Accused 7
and
its Directors, Gateway Limited and its Director, Tegeta Resources (Pty) Ltd and its
directors, Confident Concepts (Pty) Ltd and its directors, Sahara Computers (Pty)
Ltd
and its directors and Oakbay Investments (Pty) Ltd and its directors to remove a portion
of the funds from the jurisdiction of this honourable court to a jurisdiction beyond the
borders
of
South Africa, viz. the United Arab Emirates and placed it at the disposal of
the accused
in
the UAE which resulted
in
diminishing the said property acquired as a
result
of
the commission
of
the said offences.
COUNT 4
(IN
RELATION TO ACCUSED 4, 5, 7 and 8)
THAT THE ACCUSED ARE
GUil
TY
OF THE CRIME OF FRAUD READ WITH SECTION 103
OF THE CRIMINAL PROCEDURE ACT
51
OF 1977 AND FURTHER READ WITH THE
PROVISIONS OF SECTION
51
(2)
OF
THE CRIMINAL LAW AMENDMENT ACT 105 OF 1997
151.25
In
that during the period between 2 July 2012 and 6 July
2012,
and at or near
Johannesburg
in
the regional division
of
Gauteng, Accused
4,
5,
7 and 8 did unlawfully,
falsely, collude and conspire with one another and with others, with a common purpose
12
to
defraud, and with intention to defraud, misrepresent to the Bank
of
Baroda and or its
employees and or the Reserve Bank of South Africa and or its employees and or the
National Treasury and or its employees that:
151.26
The payments
of
RB
800 000, 00 (eight million eight hundred thousand rand) and
R10
200
000,
00
(ten million two hundred thousand rand) made
on
2 and 6 July 2012
respectively,
by
Pragat Investments to Accused
S's
Bank
of
Baroda account, were
made
in
the ordinary course
of
business; and or
151.26.1
Accused 5 had concluded
an
arm's length agreement,
in
the ordinary
course
of
business with Gateway
Ltd;
and or
151.26.2
The total amount
of
R 19 070 934,
00
(nineteen million and seventy
thousand
nine
hundred
and thirty-four rand)
that was transferred to
Gateway Ltd, was due and payable to Gateway
Ltd
by Accused
5,
as a
result
of
a legitimate business transaction between them;
151
.27
And
the Accused did by means
of
the aforesaid misrepresentations induce the Bank
of
Baroda, the Reserve Bank
of
South Africa and or the National Treasury to suffer
actual or potential prejudice, as follows:
151
.
27
.1
The Bank
of
Baroda, National Treasury and or the Reserve Bank granted
permission for the said transfer
in
circumstances where they ought not to
have granted such permission as it resulted
in
an outflow
of
funds from
South
Africa
that ought not to
have
been
permitted
and
impacted
improperly on the balance
of
payments and the regulation of currency
exchanges between South Africa and the United Arab Emirates.
151.27.2
It also had the effect
of
placing proceeds
of
fraud beyond the reach
of
the
South African regulatory and criminal justice authorities and exposing the
Bank of Baroda to reputational damage.
151.28
Whereas the Accused, when they misrepresented
as
aforesaid, well knew that:
151.28.1
The aforesaid payments of
RS
800
000,
00
(eight million eight hundred
thousand rand) and R10 200 000,
00
(ten
million two hundred thousand
rand) made
on
2 and 6 July 2012 respectively,
by
Pragat Investments
to
13
Accused
S's
Bank
of
Baroda account, were not made
in
the
ordinary
course of business; and or
151
.28.2
The aforesaid amounts paid by Pragat Investments
to
Accused
5,
were
made available
by
Accused 7 on the aforesaid dates; and
or
151.28.3
Accused 5 and Gateway
Ltd
did not transact at arm's
length,
in
the
ordinary course of business; and
or
151
.28.4
The amounts mentioned above were not due and payable to Gateway
Ltd,
by
Accused
5,
since the two
parties did
not have a legitimate
business transaction between them;
and
or
151.28.5
The contract between Accused 5 and Gateway
Ltd
was neither valid nor
bona
fide;
and or
151.28.6
Gateway was not entitled
to
payment for services rendered
as
it did not
render services under the contract with Accused
5.
The services were
rendered
by
Deloitte
in
terms
of
its contract with Accused 5.
151.28. 7
The amounts that were transferred
to
Gateway
Ltd,
were proceeds of
unlawful activities as described
in
counts
1,
2 and 3.'
[2]
Accused
6,
7
and
8 filed
requests for further particulars which the State
responded to.
Upon
receipt
of
the State's response the accused filed request
for further and better particulars. It is the response of the state to the request
for further and better particulars that triggered this application. The state is of
the view that the information provided to the accused
is
sufficient
to
enable
them to prepare for trial and answer the case against them.
[3]
Further particulars requested by the accused are listed
in
over 200 pages.
I
will not enumerate them one by one. At the heart of the accused 6,7
and
8 s'
complaint is that the indictment, the statement of facts
as
well as the state's
response to the request for further particulars fail to disclose, with clear
particularity the case that the accused are expected to answer
at
trial. The
14
accused complain that the information provided by the state is scanty and fails
to show the role that each of the accused played
in
the commission of the
alleged offences. They require the prosecution to set out
in
detail when and
where the accused conspired to commit the alleged offences. They require
exact roles played by each of the accused when they colluded to commit the
alleged offences. The time and the place where the meetings were held and
individuals who participated
in
those meetings.
[4]
Section 87(1) of the Criminal Procedure Act,
1
provides as follows:
'An accused may at any stage before any evidence
in
respect
of
any particular charge has
been led,
in
writing request the prosecution to furnish particulars
of
c;:1ny
matter alleged
in
that
charge, and the court before which a charge is pending may at any time before any evidence
in respect of that charge has been led, direct that particulars or further particulars be delivered
to the accused
of
any matter alleged
in
the charge, and may,
if
necessary, adjourn the
proceedings in order that such particulars may be delivered.'
[5]
The prosecution is obliged by law to provide the accused with all material
evidence as a requirement for a fair trial. This enables the accused
to
properly
organise his defence before the trial court so as to influence the outcome of the
proceedings. It
is
well established that the purpose
of
further particulars
is
to
enable the accused to know the case that
he
has to meet.
[6]
Section
35
(3) (a) and (b) of
The Constitution Act
of
1996
provides that
every accused person has a right to a fair trial, which includes the right to be informed
of
the
charge with sufficient detail
to
answer it and to have adequate time and facilities to prepare a
defence.
2
[7]
The writer
of
The Constitutional Criminal Procedure
3
states the following
when dealing with the right to be informed of the charge with sufficient detail:
"The right to a detailed charge constitutionalises the current rules pertaining to the
drafting of the charge sheets and indictments
4
.
It
is
peremptory that a charge set forth
the relevant offence in such a manner and with such particulars as may be reasonably
1
Section 87(1)
of
The Criminal Procedure Act
51
of
1977
2
The constitution
of
the Republic
of
South Africa, 1996
3
Constitutional Criminal Procedure by Nico Steytler page 227
4
S v Friedman (1)
1996SACR
181(W)
at
190b
15
sufficient
to
inform the accused
of
the nature
of
the charge
5
.
It is not sufficient merely
to
state the name
of
an offence; all elements
of
the offence should be spelled out as
well. ....... Furthermore, most importantly, the factual allegations on which the charge
is
based should be given.
In
assessing the sufficiency
of
information, the point
of
departure is that the accused
is
presumed innocent and thus has no knowledge of the
facts. Where a charge is not detailed enough, further particulars can
be
requested and
their enforcement is in the discretion of the court"
[8]
The court has to determine whether the indictment, the statement of facts
and
the further particulars provided sufficiently informs the accused
of
the
case
he
has
to
answer. It is the court that has
to
determine the adequacy of
the information provided by the state.
The author of Hiemstra
Criminal
Procedure
11t
h
ed
p
14-21
6
sets out
the
criteria for the court
to
determine
whether sufficient information
has
been
provided
to
the
defence
as
follows:
"(a) Does the accused need the information to answer to the charge?
(b) Would refusal to give the particulars prejudice the accused?
(c)
If
the particulars are requested after plea, before evidence has been led, what is
the relevance
of
the particulars?
(d)
What does the interest
of
justice dictate? The fact that the defence had access to
the police docket must be taken into account by the court
in
assessing the adequacy
of information
in
possession
of
the accused.7"
[9]
In
count 2 the accused persons are jointly charged with the offence of fraud,
wherein the prosecution alleges that the accused
on
a date just before 03
October
2011
and
February
2012
acted
in
concert and with common purpose
to defraud, the Free State Department
of
Agriculture and Rural Development
(DARO) and or its employees. The charge shows how the misrepresentation
was committed
and
the entities through which the misrepresentation was
facilitated as well
as
individual role players who held positions
of
authority
in
companies that benefited from the misrepresentation. The state admitted that
the exact time
of
the alleged collusion
is
unknown
to
the state.
(1
OJ
The state makes the following assertions, amongst others,
in
support
of
its
allegation that the accused acted
in
common purpose: That:
5
S 84(1)
CPA
6
A Kruger Hiemstra Criminal Procedure 2019.
Ed
p14-21
7
S v Chao and Others 2009 (1)
SACR
479 (
C)
par. 44
16
As at 3 October 2011, the Free State Department of agriculture and Rural
Development did not have a need to for the service
of
producing a feasibility
study. There was no budget neither were there funds to support the project.
Accused
6,
without procurement processes being followed nor submitting any
proposal for the said services, signed a contract
on
behalf of accused 5
in
terms of which the Department had to pay
an
amount
in
excess
of
R24 million
to accused
5.
The money
is
alleged to have been paid to accused 5 and from
there it went
to
Pragat Investments (Pty) Ltd and accused
7.
Accused 5 was
at the time controlled by the directors of accused 7 where accused 8 was a
Chief Financial Officer. The said money was channelled to other accounts
ending
up
with a Company registered
in
the United Arab Emirates.
[11]
Accused 5
is
alleged to have entered into a subcontracting agreement with
Delloitte
in
an
amount of R 1 538 457 .86 for the services that it charged the
department
R24
984 240.00 for.
The state further alleges that accused 6
was
in
charge of negotiations
on
behalf of accused 5 when the subcontracting
agreement was entered into.
[12]
The accused challenge the responses from the state
on
the basis that they do
not specify individual role players
in
the alleged offences.
In
count 3 and 4
accused 7
and
8 are charged with Money Laundering and Fraud respectively.
The indictment alleges that the money that
was
paid as a result of contracts
which were entered into
in
violation
of
the constitution and the Public Finance
Management Act were channelled through accused 7 and other companies
associated with accused
8.
[13]
Showing association
is
a matter
of
evidence which can only be cured during
trial, the same goes with matters that require inferential reasoning.
Issues
raised by the accused
in
their requests for further particulars are matters of
evidence. For the state to show that accused
6,
who
is
a business man, knew
that state institutions have to engage
in
competitive bidding processes to
17
procure services for the amount alleged
in
the indictment would
require
inferential reasoning which can only be done through evidence.
[14]
Having considered the indictment, the statement of facts provided
by
the state
and the fact that the accused have access to the docket, I am of the view that
Counsel for all the accused have adequate information to prepare for trial. I
am satisfied that the information provided sufficiently informs all the accused
of
the case that they have to meet.
Even if prejudice arises during trial the
presiding Judge can always make
an
appropriate order to obviate a situation
where the accused 's right to a fair trial is compromised. The application must
fail.
In
view
of
the above the following order is made:
ORDER
[15]
The application brought by accused
6,
7 and 8
in
terms of s
87
of
th
Criminal
Procedure Act, Act
51
of 1977 to compel the State to furnish furth
particulars, is dismissed
On
behalf of the applicants:
6:
Adv Aldwage
Instructed
by:
Schindler Attorneys
7
&
8:
Adv Hellens
SC
Instructed
by:
Krause Attorneys Incorporated
BLOEMFONTEIN
On
behalf
of
the respondent:
Adv Cassiem SC
Adv Serunye
AdvWitbooi
Instructed
by:
The Director
of
Public Prosecutions
BLOEMFONTEIN
18